HomeMy WebLinkAboutCC ORD 2004-2255 Seizure and Forfeiture of Public Nuisance VehiclesORDINANCE NO. 2004 — 2255
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY
AMENDING TITLE 10 THE NATIONAL CITY MUNICIPAL CODE
BY AMENDING CHAPTER 10.19 PERTAINING TO 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:
Sections:
Chapter 10.19
SEIZURE AND FORFEITURE OF PUBLIC NUISANCE VEHICLES
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
Ordinance No. 2004 —
Page 2
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.
6. Any vehicle that is used by one or more members of a criminal
street gang as an instrumentality of or in furtherance of "gang activity".
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 section 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 drivers 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.
Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
Ordinance No. 2004 —
Page 3
J. "Gang activity" means activity conducted by one or more members of "a
criminal street gang", as those terms are used or described in Penal Code sections
186.22 through 186.28.
10.19.020 Declaration by court or city attorney. Upon proof that a vehicle was
used for any of the purposes set forth in section 10.19.010, the court upon application,
or the city attorney upon compliance with the applicable sections of this chapter, may
declare the vehicle a public nuisance and order that the vehicle be forfeited, sold, and
the proceeds distributed as set forth in section 10.19.100.
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. It shall not be a
prerequisite to proceedings under this chapter that an occupant or user of a vehicle first
be convicted of an underlying offense or crime before a public nuisance justifying action
under this chapter -may be declared to exist.
10.19.040: Seizure. A. Vehicles subject to forfeiture under this chapter may be
seized by any peace 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. There is probable cause to believe that the vehicle was used in
violation of this chapter.
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 10.19.040B,
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. When a public nuisance
vehicle seized as evidence is in the custody of the District Attorney or other public or
governmental agency, the City Attorney shall coordinate the request for custody of the
vehicle as soon as needs or proceedings of the other agency no longer require its
possession.
Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
Ordinance No. 2004 —
Page 4
10.19.070 Forfeiture procedure. A. Except as provided in this section, when
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 sixty (60) days following the seizure of the vehicle
which is subject to forfeiture, or, if the vehicle is in the custody of another agency, within
sixty (60) days following its release by that agency.
C. 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 claimant to request 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 request for
a hearing must be received by the department within ten (10) calendar days following
that date of mailing of the notice. The post -seizure hearing shall be conducted within
two business days following the day of receipt of the request for the hearing. The city
may authorize any officer or employee to conduct the hearing provided the hearing
officer is not the same person who directed the seizure of the vehicle. Failure of a
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 of ownership
appearing on the vehicle; if no legend of ownership 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 ownership is available, or failure to receive notice when indicia of ownership is
available, shall not invalidate any proceeding under this chapter.
D. The city attorney shall, within ten days following seizure, notify any
interested party of the seizure of the vehicle and the intended forfeiture proceedings,
and a statement that any interested party may also file a verified claim with the Superior
Court of San Diego County to contest the seizure in accordance with section 10.19.080.
The notice shall be served by personal delivery or by registered mail upon each person
who has an interest in the seized vehicle.
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.
Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
Ordinance No. 2004
Page 5
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:
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 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
within thirty days after receipt of the claim for a court hearing as soon as shall be
possible.
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, the City Attorney may allow an interested party to pay
the fair market value of the vehicle seized in lieu of prosecuting the forfeiture
proceeding, and reclaim the vehicle, except when the vehicle is seized under section
10.19.010(B)(6).
Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
Ordinance No. 2004 —
Page 6
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 under section 10.19.080 (c).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,
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 or within which the subject vehicle was used.
PASSED and ADOPTED this 16TH day of NOVEMBER
ATTEST:
Mich�%
ael R. Dall , City Clerk
Nid(Nt`�zui ~a, I`ayor
, 2004.
APPROVED AS TO FORM:
George H. Eiser, III
City Attorney
Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
Passed and adopted by the Council of the City of National City, California, on
November 16, 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
Clerk of the Ci 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 October 19, 2004, and on November 16, 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. 2004-2255 of the City Council of the City of National City, passed
and adopted by the Council of said City on November 16, 2004.
City Clerk of the City of National City, California
By:
Deputy