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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
o CITY ATTORNEY
Dept: CITY ATTORNEY
Date: February 23, 2005
Subject: Ordinance Adding Chapter 8.35 to Title 8 of
the San Bernardino Municipal Code Establishing That
Any Vehicle Used to Solicit an Act of Prostitution or
to Acquire or Attempt to Acquire a Controlled Substance
is a Nuisance Subject to Seizure and Impoundment.
Synopsis of Previous Council Action:
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Recommended Action:
That said ordinance be adopted
L?~
I Signature
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Phone:
Ward:
None
5255
Contact person: James F. Penman
Supporting data attached: Staff Renort
FUNDING REQUIREMENTS: Amount:
All
Source:
Finance:
Committee Notes:
Agenda Item No. f7
3/7/05
75-0262
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STAFF REPORT
Council Meeting Date: March 7, 2005
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
March 1, 2005
Ordinance Adding Chapter 8.35 to Title 8 of the San Bernardino Municipal
Code Establishing That Any Vehicle Used to Solicit an Act of Prostitution or to
Acquire or Attempt to Acquire A Controlled Substance is a Nuisance Subject
to Seizure and Impoundment.
The Police Department has determined that impounding the vehicles of those who use the
vehicles to solicit acts of prostitution or to attempt to acquire drugs will deter such activities. The
proposed ordinance is based on provisions modeled after language in the State Vehicle Code.
Notice of the seizure and impoundment must be given within two (2) days to the legal and
registered owner if he/she was not the operator of the seized vehicle. The ordinance makes
provisions for releasing the vehicle to the legal or registered owner prior to the 30-day period if they
o were not the operator of the seized vehicle.
Likewise, provisions of the ordinance allow release to a rental vehicle agency prior to the end
of the 30-day period.
The Police Department already follows similar procedures in enforcing state law. This
ordinance follows those same procedures. This will speed the training of police officers in using this
ordinance.
On February 23, 2005, the Legislative Review Committee approved forwarding the matter
to the Mayor and Common Council with the recommendation that it be approved.
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1
ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPTER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
3 ESTABLISmNG THAT ANY VEHICLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPI' TO ACQUIRE A
4 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
5
6 THE MAYOR AND COMMON COUNCn.. OF THE CITY OF SAN
7 BERNARDINO DO ORDAIN AS FOLLOWS:
8 SECTION 1. Chapter 8.35 is hereby added to the San Bernardino Municipal Code,
9 to read as follows:
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Sections:
13 8.35.010
8.35.020
0 14 8.35.030
15 8.35.040
8.35.050
16 8.35.060
8.35.070
17 8.35.080
8.35.090
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19 8.35.010
CHAPTER 8.35
NUISANCE SUBJECT TO ABATEMENT
BY SEIZURE AND IMPOUNDMENT OF VEHICLE
Findings and Purpose.
Definitions.
Nuisance Subject to Abatement By Seizure and Impoundment
of Vehicles.
Seizure and Impoundment of Vehicle.
Storage Hearing.
Release to Registered Owner.
Release to Legal Owner.
Release to Rental Car Agency.
Miscellaneous.
20 The San Bernardino Common Council hereby finds and declares:
Findings and Purpose.
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A.
B.
RLS/ac [NuisanceOrdinance]
The citizens of San Bernardino have complained about the nuisance created
in their neighborhoods by persons driving vehicles into their neighborhoods
in order to acquire or attempt to acquire controlled substances or to solicit
acts of prostitution; and
Persons who operate vehicles and use them to acquire or attempt to acquire
controlled substances or to solicit acts of prostitution bring crime and decay
into the neighborhoods; and
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPTER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISHING THAT ANY VEmCLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPT TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
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9 8.35.020
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19 8.35.030
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C.
The seizure and impoundment of vehicles used by persons to acquire or
attempt to acquire controlled substances or to solicit acts of prostitution will
serve to abate the nuisance caused by such activity, in that these persons will
be deterred from using a vehicle as an instrumentality of their illegal activity.
Definitions.
A.
Controlled substance - a drug substance, or immediate precursor which is
listed in any schedule in California Health & Safety Code Section 11054,
11055, 11056, 11057, or 11058.
B.
Driver - the person who drives or is in actual physical control of a vehicle.
Prostitution - engaging in lewd or sexual conduct for money, or other
C.
consideration.
D.
Vehicle - any transportation device which requires the driver to have in his
or her immediate possession a valid driver's license for the appropriate class
of vehicle being driven.
Nuisance Subject To Abatement By Seizure and Impoundment of
Vehicle.
A.
Any vehicle used during the solicitation of an act of prostitution, or during
the acquisition or attempted acquisition or sale of any controlled substance,
is declared a nuisance and the vehicle shall be enjoined and abated by seizure
B.
and impoundment, as provided in this Chapter.
Any person or his or her servant, agent, or employee who owns leases,
conducts or maintains any vehicle used for any of the purposes or acts set
forth in this section is guilty of creating a public nuisance.
RLS/ac [NuisanceOrdinance]
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPTER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISHING THAT ANY VEmCLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR A TTEMPr TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
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5 8.35.040
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Seizure and Impoundment of Vehicle.
Whenever a peace officer detennines that a person was using a vehicle in violation
of this chapter, the peace officer may immediately seize the vehicle. A vehicle so
seized shall be impounded for 30 days. An immediate investigation shall be made
by the San Bernardino Police Department as to any claimant to a vehicle whose right,
title, interest, or lien is of record in the Department of Motor Vehicles. If the San
Bernardino Police Department finds that any person, other than the person from
whom the vehicle was seized, is the registered and/or legal owner thereof, and such
ownership did not arise subsequent to the date and time of seizure of the vehicle,
within two working days of impoundment it shall send a notice by certified mail,
return receipt requested, to the registered and/or legal owner of the vehicle at the
address( es) obtained from the Department of Motor Vehicles infonning the owner
that the vehicle has been impounded. Failure to notify the registered and/or legal
owner within two working days shall prohibit the City of San Bernardino from
charging an administrative fee when the legal owner redeems the impounded vehicle.
The San Bernardino Police Department shall maintain a published telephone number
that provides information 24 hours a day regarding the impoundment of vehicles and
the rights of a registered owner to request a post-storage hearing.
23 8.35.050
Post-Storage Hearing.
24 The registered and legal owner of a vehicle that is ~moved and seized under
25 subdivision 8.35.040 or their agents shall be provided the opportunity for a post-
26 storage hearing to detennine the validity of, or consider any mitigating circumstances
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attendant to, the storage, in accordance with Section 22852 of the Vehicle Code.
RLS/ac [NuisanceOrdinance]
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAFfER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISIllNG THAT ANY VEHICLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPT TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
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5 8.35.060
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A.
Release to Registered Owner.
A "registered owner" is a person registered by the Department of Motor
Vehicles as the owner of the vehicle.
B.
A vehicle secured under subsection 8.35.040 shall be released to the
registered owner or his or her agent prior to the end of 30 days' impoundment
under any of the following circumstances:
1.
2.
When the vehicle is a stolen vehicle.
When the vehicle was seized under this section for an offense that
does not authorize the seizure of the vehicle.
c.
No vehicle shall be released pursuant to this subdivision without presentation
of the registered owner's or agent's currently valid driver's license to operate
the vehicle and proof of current vehicle registration, or upon order of the
court.
D.
The registered owner or his or her agent is responsible for all towing and
storage charges related to the impoundment, and any administrative charges
authorized under Section 22850.5 of the Vehicle Code.
A.
Release to Legal Owner.
A vehicle removed and seized under subsection 8.35.040 shall be released to
the legal owner of the vehicle or the legal owner's agent prior to the end of
30 days' impoundment if all of the following conditions are met:
1.
The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution legally
operating in this state or is another person, not the registered owner,
28 holding a security interest in the vehicle.
RLS/ac [NuisanceOrdinance] 4
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPTER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISHING THAT ANY VEmCLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPT TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
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2.
The legal owner or the legal owner's agent pays all towing and
storage fees related to the seizure of the vehicle. No lien sale
processing fees shall be charged to the legal owner who redeems the
vehicle prior to the 15th day of impoundment. Neither the San
Bernardino Police Department nor any person having possession of
the vehicle shall collect from the legal owner of the type specified in
paragraph (1), or the legal owner's agent any administrative charges
imposed pursuant to Section 22850.5 unless the legal owner
voluntarily requested a poststorage hearing.
The legal owner or the legal owner's agent presents either lawful
foreclosure documents or an affidavit of repossession for the vehicle,
and a security agreement or title showing proof of legal ownership for
the vehicle. Any documents presented may be originals, photocopies,
or facsimile copies, or may be transmitted electronically. Neither the
San Bernardino Police Department nor towing company shall require
any documents to be notarized. The San Bernardino Police
Department or towing company may require the agent of the legal
owner to produce a photocopy or facsimile copy of its repossession
agency license or registration issued pursuant to Chapter 11
(commencing with Section 7500) of Division 3 of the Business and
Professions Code, or to demonstrate, to the satisfaction of the Police
Department or towing company, that the agent is exempt from
licensure pursuant to Section 7500.2 or 7500.3 of the Business and
3.
28 Professions Code.
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPTER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISHING THAT ANY VEmCLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPT TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
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No administrative costs authorized under subdivision (a) of
Section 22850.5 of the Vehicle Code shall be charged to the
legal owner of the type specified in paragraph (1), who
redeems the vehicle unless the legal owner voluntarily
requests a poststorage hearing. The legal owner or a legal
owner's agent shall not be required to request a poststorage
hearing as a requirement for release of the vehicle to the legal
owner or the legal owner's agent. The San Bernardino Police
Department or towing company shall not require any
documents other than those specified in this paragraph. The
San Bernardino Police Department shall not require any
documents to be notarized.
As used in this paragraph, "foreclosure documents" means an
"assignment" as that term is defined in subdivision (0) of Section
7500.1 of the Business and Professions Code.
B.
1.
A legal owner or the legal owner's agent that obtains release
of the vehicle pursuant to subsection (A) may not release the
vehicle to the registered owner of the vehicle or any agents of
the registered owner, unless the registered owner is a rental
car agency, until after the termination of the 30-day
impoundment period.
The legal owner or the legal owner's agent may not relinquish
the vehicle to the registered owner until the registered owner
or that owner's agent presents his or her valid driver's license
2.
RLS/ac [NuisanccOrdinancc]
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPTER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISHING THAT ANY VEmCLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPT TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
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3.
or valid temporary driver's license to the legal owner or the
legal owner's agent. The legal owner or the legal owner's
agent shall make every reasonable effort to ensure that the
license presented is valid.
Prior to relinquishing the vehicle, the legal owner may require
the registered owner to pay all towing and storage charges
related to the impoundment and any administrative charges
authorized under Section 22850.5 that were incurred by the
legal owner in connection with obtaining custody of the
vehicle.
8.35.080
Release to Rental Car Agency.
A. A vehicle removed and seized under subdivision (a) shall be released to a
rental car agency prior to the end of 30 days' impoundment if the agency is
either the legal owner or registered owner of the vehicle and the agency pays
all towing and storage fees related to the seizure of the vehicle.
B. The owner of a rental vehicle that was seized under this section may continue
to rent the vehicle upon recovery of the vehicle. However, the rental car
agency may not rent another vehicle to the driver of the vehicle that was
seized until 30 days after the date that the vehicle was seized.
C. The rental car agency may require the person to whom the vehicle was rented
to pay all towing and storage charges related to the impoundment and any
administrative charges authorized under Section 22850.5 that were incurred
by the rental car agency in connection with obtaining custody of the vehicle.
RLS/ac [NuisanceOrdinance]
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPrER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISHING THAT ANY VEmCLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPT TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
4
5 8.35.090 Miscellaneous.
6 A. Notwithstanding any other provision of this section, the registered owner and
7 not the legal owner shall remain responsible for any towing and storage
8 charges related to the impoundment, any administrative charges authorized
9 under Section 22850.5, and any parking fines, penalties, and administrative
10 fees incurred by the registered owner.
11 B. Neither the San Bernardino Police Department nor the towing company
12 shall be liable to the registered owner for the improper release of the
13 vehicle to the legal owner or the legal owner's agent provided the release
0 14 complies with the provisions of this section.
15 8.35.100 Severability.
16 If any part or provision of this Chapter is in conflict or inconsistent with applicable
17 provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by
18 any court of competent jurisdiction, such part or provision shall be suspended and superseded
19 by such applicable laws or regulations, and the remainder of this Chapter shall not be
20 affected thereby.
21 III
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0 27 III
28 III
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8 COUNCIL MEMBERS:
9 ESTRADA
10 LONGVILLE
11 MCGINNIS
12 DERRY
13 J{RT .T .F.Y
o 14 JOHNSON
15 MC CAMMACK
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1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING
CHAPTER 8.35 TO TITLE 8 OF THE SAN BERNARDINO MUNICIPAL CODE,
2 ESTABLISHING THAT ANY VEmCLE USED TO SOLICIT AN ACT OF
PROSTITUTION OR TO ACQUIRE OR ATTEMPT TO ACQUIRE A
3 CONTROLLED SUBSTANCE IS A NUISANCE SUBJECT TO SEIZURE AND
IMPOUNDMENT.
4
5 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the
6 Mayor and Common Council of the City of San Bernardino at a
meeting
7 thereof, held on the _ day of
, 2005, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
City Clerk
The foregoing Ordinance is hereby approved this _ day of
,2005.
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JUDITH V ALlES, Mayor
City of San Bernardino
Approved as to form
24 and legal content:
25 JAMES F. PENMAN
City Attorney
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