HomeMy WebLinkAboutCC ORD 2004-2239 Amends Ch. 10.19, seizure of public nuisance vehicles (10.19)ORDINANCE NO. 2004 - 2239
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY
AMENDING THE NATIONAL CITY MUNICIPAL CODE
BY AMENDING CHAPTER 10.19 PERTAINING TO THE
SEIZURE AND FORFEITURE OF PUBLIC NUISANCE VEHICLES
BE IT ORDAINED by the City Council of the City of National City that the
National City Municipal Code is amended as follows:
Section 1. That Title 10 is amended by amending Chapter 10.19 to read as follows:
Chapter 10.19
SEIZURE AND FORFEITURE OF
PUBLIC NUISANCE VEHICLES
Sections:
10.19.010 Public nuisance vehicles
10.19.015 Definitions
10.19.020 Declaration by court or city attorney
10.19.030 Right, title and interest in vehicle
10.19.040 Seizure
10.19.050 Receipts
10.19.060 Evidence
10.19.070 Forfeiture
10.19.080 Interest claim
10.19.090 Sale of vehicles
10.19.100 Recovery of monetary loss or costs of abatement
10.19.010 Public nuisance vehicles. A. Any vehicle described below in subsection
B is hereby declared to be a public nuisance, and that vehicle shall be enjoined and abated as
provided in this chapter. Any person and his or her servant, agent or employee who owns,
leases, conducts or maintains any vehicle (hereinafter referred to as "vehicle") used for any of
the purposes or acts set forth in this section is guilty of and responsible for maintaining a public
nuisance.
B. The following are declared public nuisance vehicles:
1. Any vehicle used to solicit or to agree to engage in or to engage in an act
of prostitution; or
2. Any vehicle used to attempt to procure another person for the purposes of
prostitution or to procure another person for the purposes of prostitution; or
3. Any vehicle used to cause, induce, persuade or encourage, by promises,
threats, violence, or by any device or scheme, another person to become a prostitute; or
4. Any vehicle used to illegally sell, transfer or acquire or attempt to illegally
sell, transfer or acquire any controlled substance; or
5. Any vehicle that is used for purposes of illegal dumping, illegal grading or
illegal excavation on public or private property.
10.19.015 Definitions. Within this chapter, the following meanings shall apply:
A. "Bulky item" means any discarded furniture, home or industrial appliance or any
abandoned vehicle or a part of an abandoned vehicle.
B. "Controlled substance" means a drug, substance or immediate precursor that is
listed in any schedule in California Health and Safety Code Sections 11054, 11055, 11056,
11057 or 11058.
C. "Driver" means any person who drives or is in physical control of a vehicle
defined in this section.
D. "Hazardous waste" means any waste as defined in California Health and Safety
Code Section 25117.
E. "Illegal dumping" means the willful throwing, dropping, placing or depositing of a
bulky item, hazardous waste or solid waste on public or private property not designated for that
dumping or disposal purpose. "Illegal dumping" does not include the discarding, dropping, or
scattering of small quantities of waste matter ordinarily carried on or about the person, including,
but not limited to, beverage containers and closures, packaging, wrappers, wastepaper,
newspapers, and magazines and including waste matter that escapes or is allowed to escape
from a container, receptacle, or package.
F "Illegal excavation" or "illegal grading" refers to the moving of earth on or removal
of earth from private or public property without a permit required by law or the National City
Municipal Code.
G. "Prostitution" means engaging in lewd or sexual conduct for money or other
consideration.
H. "Solid waste" means all putrescible and non-putrescible solid, semisolid and
liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes,
demolition and construction wastes, dewatered, treated or chemically fixed sewage sludge that
is not hazardous waste, manure, vegetable or animal solid and semisolid wastes, and other
discarded solid and semisolid wastes. Solid waste does not include hazardous waste.
"Vehicle", for purposes of this chapter, means any transportation device that is
equipped with a motor, that is pulled by a transportation device with a motor, or requires the
driver to have in his or her immediate possession a valid driver's license for the appropriate
class of vehicle being driven without regard to whether it is required to be registered with the
California Department of Motor Vehicles or the motor vehicle department of another jurisdiction.
It includes, without limitation, automobiles, pickup trucks, dump trucks, tractor -trailers, earth
movers, earth graders and bulldozers.
10.19.020 Declaration by court or
for any of the purposes set forth in Section
attorney upon compliance with the applicable
public nuisance and order that the vehicle be
forth in Section 10.19.100.
City Attorney. Upon proof that a vehicle was used
10.19.010, the court upon application, or the city
sections of this chapter, may declare the vehicle a
forfeited, sold, and the proceeds distributed as set
10.19.030 Right, title and interest in vehicle. All right, title and interest in any vehicle
described in Section 10.19.010 shall vest in the city upon commission of an act giving rise to the
public nuisance declared under this chapter.
10.19.040 Seizure. A. Vehicles subject to forfeiture under this chapter may be
seized by any peace officer or code compliance officer upon process issued by any court having
jurisdiction over the vehicle.
B. Seizure without process may be made when any of the following situations exist:
1. The seizure is incident to an arrest with or without a warrant, or a search
under a search warrant; or
2
of this chapter.
2. There is probable cause to believe that the vehicle was used in violation
10.19.050 Receipts. Receipts for vehicles seized pursuant to this chapter shall be
delivered to any person from whose possession the vehicle was seized, in accordance with
Section 1412 of the Penal Code.
10.19.060 Evidence. Any vehicle seized pursuant to Section 10.19.050B, where
appropriate, may be held for evidence. The city attorney shall have the authority to institute and
maintain proceedings pursuant to the authority conferred by this chapter. The seizure and
impoundment of a public nuisance vehicle as evidence neither requires nor precludes forfeiture
proceedings under this chapter.
10.19.070 Forfeiture. A. Except as provided in subsection G of this section, if the
city attorney determines that a vehicle described in Section 10.19.010 is subject to forfeiture, the
city attorney shall file a petition for forfeiture with the Superior Court of San Diego County.
B. A petition for forfeiture under this subdivision shall be filed as soon as
practicable, but in any case, within one year following the seizure of the vehicle which is subject
to forfeiture.
C. The city attorney shall cause a notice of the seizure and of the intended forfeiture
proceedings, as well as a notice stating that any interested party may file a verified claim with
the Superior Court of San Diego County, to be served by personal delivery or by registered mail
upon any person who has an interest in the seized vehicle. Whenever a notice is delivered
pursuant to this section, it shall be accompanied by a claim form as described in Section
10.19.090 and directions for the filing and service of a claim.
D. An investigation shall be made by the National City police department as to any
claimant to a vehicle whose right, title, interest or lien is of record in the California Department of
Motor Vehicles or other jurisdiction of vehicle registration. The National City police department
shall send a notice within two business days following the seizure for a post -seizure hearing to
determine the validity of the seizure to each legal and/or registered owner of a vehicle at his or
her address appearing in the records of the appropriate state motor vehicle registry. The
post -seizure hearing shall be conducted within two business days of the request for the hearing.
The City may authorize its own officer or employee to conduct the hearing if the hearing officer
is not the same person who directed the seizure of the vehicle. Failure of the potential claimant
to request or attend a scheduled hearing within the appropriate time frame shall satisfy the
post -seizure requirement. If the vehicle is not subject to registration or is not registered, notice
shall be provided to any person or entity with an apparent interest, such as may appear by
inscribed or painted legend appearing on the vehicle; if no legend is apparent, a notice shall
instead be published in a newspaper of general circulation describing the vehicle and an advice
regarding the seizure and potential forfeiture. Failure to provide notice when no apparent
indicator of ownership is available, or failure to receive notice when indication is available, shall
not invalidate any proceeding under this chapter.
E. All notices shall set forth the time within which a claim of interest in the vehicle
seized or subject to forfeiture is required to be filed pursuant to Section 10.19.090.
F. With respect to vehicles described in Section 10.19.010 for which forfeiture is
contested, the city shall have the burden of proving by a preponderance of the evidence that the
vehicle was used as set forth in Section 10.19.010.
G. The city attorney, pursuant to this subsection, may order the forfeiture of vehicles
seized under this chapter. The city attorney shall provide notice of the proceedings under this
subsection, including:
3
1. A description of the vehicle;
2. The date and place of seizure;
3. The violation of law alleged with respect to forfeiture of the vehicle;
4. The instructions for filing and serving a claim with the city attorney
pursuant to Section 10.19.090 and time limits for filing a claim.
H. If no claims are timely filed, the city attorney shall prepare a written declaration of
forfeiture of the vehicle to the city and dispose of the vehicle in accordance with Section
10.19.100. A written declaration of forfeiture signed by the city attorney under this section shall
be deemed to provide good and sufficient title to the forfeited vehicle. The city attorney ordering
forfeiture pursuant to this section shall provide a copy of the declaration of forfeiture to any
person who received notice of the forfeiture proceedings.
I. If a claim is timely filed, then the city attorney shall file a petition for forfeiture with
the Superior Court pursuant to this section within thirty days of the receipt of the claim.
J. Forfeiture proceedings shall not be applicable to any vehicle that was reported
stolen prior to the act proscribed in section 10.19.010, unless it shall appear that the report was
false, that the identity of the registered owner cannot be reasonably ascertained or that the
registered owner failed to redeem the vehicle within sixty (60) days after seizure. Otherwise,
the registered owner of a stolen vehicle may claim the vehicle upon payment of tow, storage
and release charges, provided that the vehicle is not subject to any other holds prescribed by
the Vehicle Code for traffic, parking or current registration violations.
10.19.080 Interest claim. A. Any person claiming an interest in the vehicle seized
pursuant to Section 10.19.010 must, within ten days from the date of the notice of seizure, file
with the city attorney a claim, verified in accordance with Section 446 of the Code of Civil
Procedure, stating his or her interest in the vehicle.
B. 1. If a verified claim is filed, the forfeiture proceeding shall be set for hearing
on a day not less than thirty days after receipt of the claim.
2. The provisions of the Code of Civil Procedure shall apply to proceedings
under this chapter unless otherwise inconsistent with the provisions or procedures set forth in
this chapter. However, in proceedings under this chapter, there shall be no joinder of actions,
no coordination of actions except for forfeiture proceedings, nor cross -complaints, and the
issues shall be limited strictly to the questions related to this chapter.
C. In lieu of forfeiture, an interested party may pay the fair market value of the
vehicle seized to the agency or official prosecuting the forfeiture proceeding, and reclaim the
vehicle.
10.19.090 Sale of vehicles. In all cases where vehicles seized pursuant to this
chapter are forfeited to the city, the vehicles shall be sold, unless cash is paid as settlement in
lieu of forfeiture of the vehicle, and the proceeds of sale or settlement shall be distributed and
appropriated as follows:
A. To the Office of the City Attorney and the Police Department or other local law
enforcement agency for all expenditures incurred in connection with the publication of the
notices set forth in Section 10.19.080, and the sale of the vehicle, including expenditures for any
necessary repairs, storage or transportation of any vehicle seized under this chapter;
B. To any bona fide innocent purchaser, conditional sales vendor, mortgagee or
lien holder of the vehicle, if any, up to the amount of his or her interest in the vehicle, when the
court or city attorney declaring the forfeiture orders a distribution to that person or entity;
C. The remaining funds shall be distributed as follows:
1. Fifty percent to the local law enforcement entities that participated in the
seizure, distributed to reflect the proportionate contribution of each agency,
4
2. Fifty percent to the city's nuisance abatement fund, in accordance with
Section 1.36.190 of this code.
D. All funds distributed to each local law enforcement agency pursuant to
subsection C of this section shall not supplant any funds that would, in the absence of this
subdivision, be made available to support the law enforcement and prosecutorial efforts of those
agencies. For the purposes of this section, local governmental entity means any city, county, or
city and county in this state.
10.19.100 Recovery of monetary loss or costs of abatement. Nothing in this chapter
shall preclude an owner of a vehicle from recovering damages for the actual amount of loss
from any person or entity who committed the act or acts giving rise to the seizure or forfeiture of
the vehicle, nor shall forfeiture of that vehicle preclude the city from seeking restitution from all
responsible parties for the actual costs of abatement of the underlying public nuisance for which
the subject vehicle was used.
PASSED and ADOPTED this 6TH day of JANUARY 2004,
APPROVED AS TO FORM:
George H. iser, III
City Attorney
5
Nick I
Passed and adopted by the Council of the City of National City, California, on January 6, 2004,
by the following vote, to -wit:
Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Ungab.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY:
NICK INZUNZA
Mayor of the City of National City, California
6y titanf
Ci lerk of the City of National City, California
By:
Deputy
I HEREBY CERTIFY that the foregoing ordinance was not finally adopted until seven calendar
days had elapsed between the day of its introduction and the day of its final passage, to wit, on
December 2, 2003, and on January 6, 2004.
I FURTHER CERTIFY THAT said ordinance was read in full prior to its final passage or that
the reading of said ordinance in full was dispensed with by a vote of not less than a majority of
the members elected to the Council and that there was available for the consideration of each
member of the Council and the public prior to the day of its passage a written or printed copy of
said ordinance.
I FURTHER CERTIFY that the above and foregoing is a full, true and correct copy of
ORDINANCE NO. 2004-2239 of the City Council of the City of National City, passed and
adopted by the Council of said City on January 6, 2004.
City Clerk of the City of National City, California
By:
Deputy