HomeMy WebLinkAboutCC ORD 2005-2266 Amends Ch. 10.19, seizure and forfeiture of public nuisance vehicles (10.19)ORDINANCE NO. 2005 — 2266
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 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 Procedures regarding declaration of public nuisance by court
or city attorney
10.19.030 Right, title and interest in public nuisance vehicle
10.19.040 Seizure
10.19.050 Receipts, notice and post -seizure hearings
10.19.060 Evidence
10.19.070 Forfeiture procedure
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, abated or forfeited 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, procure or engage in an act of
prostitution; or
2. Any vehicle used to illegally sell or transport or attempt to illegally
sell or transport any controlled substance; or
3. Any vehicle that is used for purposes of illegal dumping, illegal
grading or illegal excavation on public or private property; or,
4. 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 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.
I. "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.
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 Procedures regarding declaration of public nuisance by court or city
attorney. A. Upon proof that a vehicle was used for any of the purposes set forth in
Section 10.19.010 B (3) [illegal dumping, grading or excavation] or 10.19.010 B (4)
[illegal gang activity], 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 seized or impounded and, where applicable, forfeited and
sold, and the proceeds distributed as set forth in Section 10.19.090.
2005 Ordinance
2 Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
B. Vehicles impounded or seized pursuant to Section 10.19.010 B (2) [illegal
drug related activity] shall be seized and forfeited as provided by Health and Safety
Code Sections 11469 to 11495.
C. Any public nuisance vehicle described in Section 10.19.010 B (1) [illegal
prostitution related activity] may be impounded pursuant to a five year pilot program for
a period not to exceed forty-eight (48) hours upon the arrest or conviction of the
operator of that vehicle. Only the provisions of Sections 10.19.040 B and 10.19.050
shall be applicable to this category of public nuisance vehicle, and the vehicle shall be
subject to release from impound upon payment of any applicable impound fees or
charges.
D. Nothing contained in this section shall preclude seizure, impoundment or
forfeiture of a vehicle in accordance with Section 10.19.040 (B) or any other applicable
law.
10.19.030 Right, title and interest in public nuisance 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 seizure or 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, notices and post -seizure hearings. A. A receipt for any
vehicle 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.
B. The National City Police Department shall determine the identity of each
legal and registered owner whose right, title, interest or lien of a seized public nuisance
vehicle is of record in the California Department of Motor Vehicles or other jurisdiction of
vehicle registration, and shall send a notice within two business days following the
seizure for any authorized claimant to request a post -seizure hearing to determine the
validity of the seizure. Notice shall be sent to the 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 the 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-
2005 Ordinance
3 Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
seizure requirement. If the vehicle is not subject to registration or is not registered,
notice shall be provided to the operator or 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 of the department to provide notice when
ownership information is not available, or failure by an interested party to actually
receive notice, shall not invalidate any proceeding under this chapter.
C. Any person with an interest in a seized public nuisance vehicle shall also
be notified that he or she may post a bond with the City Attorney at any time to obtain
release of the vehicle from impoundment pending ultimate disposition upon its status,
and the vehicle shall be released from impound immediately upon payment of any
applicable storage and impoundment charges.
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.
Seizure and impoundment of a public nuisance vehicle as evidence neither requires nor
precludes forfeiture proceedings under this chapter. When a public nuisance vehicle
that is 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.
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) calendar 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) calendar days following its release by that agency.
C. The city attorney shall, within ten (10) calendar 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. Any interested party
may post a bond with the City Attorney at any time to obtain release of the vehicle from
impoundment pending judicial or administrative disposition upon its status.
D. 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.
E. 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.
2005 Ordinance 4 Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
F. 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 and posting a release
bond with the city attorney pursuant to Section 10.19.090, and time limits for filing a
claim.
G. 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.
H. 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 (30) calendar days
of the receipt of the claim.
I. 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)
calendar days after seizure. Otherwise, the registered or legal 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 a vehicle
seized pursuant to Section 10.19.010 must, within ten (10) calendar 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 (30) calendar 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
an amount not to exceed 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) (4), in which case it shall only be subject to judicial
forfeiture proceedings.
2005 Ordinance
5 Amending NCMC Chapter 10.19
Seizure and Forfeiture of Public Nuisance Vehicles
10.19.090 Sale of vehicles. Vehicles seized pursuant to this chapter and
forfeited to the city 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 (50%) to the local law enforcement entities that
participated in the seizure, distributed to reflect the proportionate contribution of each
agency,
2. Fifty percent (50%) 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 toss or costs of abatement. Nothing in this
chapter shall preclude an owner of a vehicle from recovering damages for the actual
amount of Toss from any person or entity who committed a wrongful 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 < ? / day of , 2005.
f'011 Nick Inzunza, Mayor
ATTEST:
Mic ael R. Dalla, '7 ity Clerk
APPROVED AS TO FORM:
George H. Eiser, Ill
City Attorney
2005 Ordinance
6 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 June
21, 2005, by the following vote, to -wit:
Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Zarate.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY:
NICK INZUNZA
Mayor of the City of National City, California
lerk of the
ational 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 June 7, 2005, and on June 21, 2005.
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. 2005-2266 of the City Council of the City of National City, passed
and adopted by the Council of said City on June 21, 2005.
City Clerk of the City of National City, California
By:
Deputy