HomeMy WebLinkAboutMC-1177
Adopted: August 16, 2004
Effective: September 16, 2004
I ORDINANCE NO. MC-l177
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
3 FORFEITURE OF NUISANCE VEHICLES.
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO
5 ORDAIN AS FOLLOWS:
6 SECTION 1. Chapter 8.39 is hereby added to the San Bernardino Municipal Code to read
7 as follows:
8 "Chapter 8.39
9 SEIZURE AND FORFEITURE OF NUISANCE VEHICLES
10 Sections:
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8.39.010
8.39.020
8.39.030
8.39.040
8.39.050
8.39.060
8.39.070
8.39.080
8.39.090
8.39.100
8.39.110
8.39.120
8.39.130
8.39.010.
Findings, Purpose, and Intent.
Nuisance Vehicles.
Right, Title and Interest in Vehicle.
Process.
Receipts.
Evidence.
Forfeiture.
Innocent Parties; Return of Vehicle.
Interest Claim.
Alternative Settlement Procedures.
Sale of Vehicles.
Nonexclusive Remedy.
Severability.
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Findings, Purpose, and Intent.
19 The Mayor and Common Council has determined that persons who operate vehicles and use
20 them to illegally deposit, discard, dump, andlor place garbage, rubbish, recyclable discards, andlor
21 green waste, bring decay and cause nuisances to local neighborhoods where they so deposit, discard,
22 dump, andlor place such matter. The Mayor and Common Council has further determined that
23 seizing the vehicles of persons who so illegally deposit, discard, dump, and/or place such garbage,
24 rubbish, recyclable discards, andlor green waste in the City of San Bernardino will deter said
25 nuisances from occurring if their vehicles are subject to seizure and forfeiture. The Mayor and
26 Common Council finds that there is a need to provide for the abatement of such nuisance vehicles.
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MC-l177
I
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
FORFEITURE OF NUISANCE VEHICLES.
2
3
4
8.39.020.
Nuisance Vehicles.
Any vehicle used to illegally deposit, discard, dump, and/or place garbage, rubbish,
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recyclable discards, or green waste in violation of San Bernardino Municipal Code section 8.24.080
is declared a nuisance vehicle, and the vehicle shall be subject to seizure and forfeiture as provided
in this Chapter. "Garbage," "rubbish," "recyclable discards," and "green waste" shall be defined as
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set forth in San Bernardino Municipal Code section 8.24.010. Any person, whether as principal or
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agent, clerk or employee, either for himself or any other person, or for any body corporate, or as an
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officer or agent for a corporation, or otherwise, who owns, leases, possesses, conducts, uses or
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maintains any vehicle (hereinafter referred to as "Vehicle"), used for any of the purposes or acts set
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forth in this section is guilty of a nuisance.
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8.39.030.
Right, Title and Interest in Vehicle.
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All right, title and interest in any Vehicle described in Section 8.39.020 shall vest in the City
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upon commission of the act giving rise to the nuisance under this Chapter.
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8.39.040.
Process.
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Vehicles subject to forfeiture under this Chapter may be seized by any peace officer upon
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process issued by any court having jurisdiction over the Vehicle. Under this Chapter, seizure without
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process may be made if any of the following situations exist;
A.
The seizure is incident to an arrest or a search pursuant to a search
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warrant; or
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B.
There is probable cause to believe that the Vehicle was used in
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violation of this Chapter.
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C.
All seized vehicles shall be towed pursuant to this section.
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8.39.050.
Receipts.
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Receipts for vehicles seized pursuant to this Chapter shall be delivered to any person arrested
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out of whose possession such vehicle was seized, in accordance with Penal Code section 1412.
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MC-U77
I
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
FORFEITURE OF NUISANCE VEHICLES.
2
3
8.39.060.
Evidence.
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Property seized pursuant to Section 8.39.040, where appropriate, may be held for evidence.
The City Attorney shall institute and maintain the proceedings pursuant to section 8.39.070.
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8.39.070.
Forfeiture.
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A.
Except as provided in subsection H of this section, or Section 8.39.100, if the City
Attorney determines that the factual circumstances warrant that the Vehicle described in Section
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8.39.020 is subject for forfeiture, the City Attorney shall file a petition for forfeiture with the
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Superior Court of San Bernardino County.
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B.
A petition for forfeiture under this subdivision shall be filed as soon as practicable,
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but in any case within six (6) months of the seizure of the Vehicle which is subject to forfeiture.
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C.
Within thirty (30) days from the seizure, the City Attorney shall cause a notice of the
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seizure and of the intended forfeiture proceedings, as well as notice stating that any interested party
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may file a verified claim with the Superior Court in San Bernardino County, to be served by personal
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delivery or by registered mail upon any person who has an interest in the Vehicle. Whenever a notice
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is delivered pursuant to this section, it shall be accompanied by a claim form as described in Section
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8.39.090 and directions for the filing and service of a claim. Notice shall also be published once in
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a newspaper of general circulation in San Bernardino County. The City Attorney shall provide notice
of the proceedings under this subsection, including the following information:
I. A description of the Vehicle;
2. The date and place of seizure;
3. The violation oflaw alleged with respect to forfeiture
of the property;
4. The instruction for filing and serving a claim with the
City Attorney pursuant to section 8.39.090 and time
limits for filing a claim.
An investigation shall be made by the San Bernardino Police Department as to any
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D.
26 claimant to the Vehicle whose right, title, interest, or lien is of record in the Department of Motor
27 Vehicles or appropriate federal agency. If the San Bernardino Police Department finds that any
28 person, other than the registered owner, is the legal owner thereof, and such ownership did not arise
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MC-l177
1
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
FORFEITURE OF NUISANCE VEHICLES.
2
3
subsequent to the date and time of arrest or notification of the forfeiture proceedings or seizure of
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the Vehicle, it shall immediately send a notice to the legal owner at his or her address appearing on
the records of the Department of Motor Vehicles or appropriate federal agency.
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E.
All notices shall set forth the time within which a claim of interest in the Vehicle
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seized or subject to forfeiture is required to be filed pursuant to Section 8.39.090.
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F.
With respect to a Vehicle described in Section 8.39.020 for which forfeiture is sought
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and as to which forfeiture is contested, the City of San Bernardino shall have the burden of proving
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by a preponderance of the evidence that the Vehicle was used as set forth in Section 8.39.020. Trial
shall be before the court or by jury. The presiding judge of the Superior Court shall assign the action
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brought pursuant to this Chapter for trial.
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G.
Upon proof by a preponderance of the evidence that the Vehicle was used for any of
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the purposes set forth in Section 8.39.020 of this Chapter, the court shall declare the Vehicle a
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nuisance and order that the Vehicle be seized, if not previously seized and held by the Police
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Department, forfeited and sold and the proceeds distributed in accordance with this Chapter.
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H.
If no claims are filed, the City Attorney shall prepare a written declaration of
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forfeiture of the Vehicle to the court and dispose of the Vehicle in accordance with this Chapter. A
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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 shall provide a copy of
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the declaration offorfeiture to any person who received notice of the forfeiture proceedings.
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I.
If a claim is timely filed, then the City Attorney shall file a petition for forfeiture
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pursuant to this section within thirty (30) days of the receipt of the claim.
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8.39.080.
Innocent Parties; Return of VehicIe.
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Notwithstanding the provisions of this Chapter, the San Bernardino Police Department shall
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return a seized Vehicle upon the filing of a timely claim pursuant to section 8.39.090 and upon a
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showing by the claimant that:
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A.
The Vehicle is owned by two or more persons and there is a community property
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MC-l177
I
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
FORFEITURE OF NUISANCE VEHICLES.
2
3
interest in the Vehicle by a person other than the person who used or maintained the Vehicle to
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illegally deposit, discard, dump and/or place garbage, rubbish, recyclable discards, andlor green
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waste, and the Vehicle is the sole vehicle available to the person's immediate family; or
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B.
The Vehicle is owned by the employer of the person who used or maintained the
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Vehicle for illegally depositing, discarding, dumping andlor placing garbage, rubbish, recyclable
discards, andlor green waste, and the employer files and serves on the City Attorney a declaration
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or affidavit under penalty of perjury that he or she had no knowledge of said illegal activity; or
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C.
The Vehicle is owned by a rental car agency with a duly executed contract with the
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person who used or maintained the Vehicle for illegally depositing, discarding, dumping andlor
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placing said garbage, rubbish, recyclable discards, and/or green waste.
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8.39.090.
Interest Claim.
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Any person claiming an interest in a Vehicle seized pursuant to Section 8.39.020 must, at any
time within ten (10) days from the date ofthe notice of seizure, file with the Superior Court of the
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State of California, County of San Bernardino, San Bernardino District, a claim, verified in
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accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the
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Vehicle. An endorsed copy of the claim shall be served by the claimant on the City Attorney within
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ten (10) days of the filing of the claim.
A.
If a verified claim is filed, the forfeiture proceeding shall be set for hearing on a day
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not less than thirty (30) days therefrom.
B.
The hearing shall be before the court or by jury.
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C.
The provisions of the Code of Civil Procedure shall apply to proceedings under this
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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, coordination of
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actions, except for forfeiture proceedings, or cross-complaints, and the issues shall be limited strictly
to the questions related to this Chapter.
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MC-U77
I
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
FORFEITURE OF NUISANCE VEHICLES.
2
3
8.39.100.
Alternative Settlement Procedures.
4
Any person, or his or her servant, agent or employee who owns, leases, conducts, uses or
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maintains any vehicle for illegally depositing, discarding, dumping andlor placing garbage, rubbish,
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recyclable discards, and/or green waste, and whose vehicle has been seized in accordance with this
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Chapter may request to execute a voluntary settlement agreement with the City for the return ofthe
Vehicle. However, nothing in this Section shall require the City to follow these alternative settlement
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procedures.
Such request shall be made in writing to the City Attorney. The minimum amount of the
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settlement agreement shall be sufficient to cover all of the City's reasonable administrative costs,
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including attorneys' fees and personnel time for the seizure and forfeiture action. The costs, salary
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and expenses of the City Attorney and members of the City Attorney's office in enforcing this
ordinance on behalf of the City shall be considered as "attorneys' fees" for the purposes of this
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section. The executed settlement agreement shall be accompanied by the appropriate settlement fee
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amount in the form of a money order, cash or cashier's check. All settlement funds shall be
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distributed as set forth in section 8.39.110(B) and (C).
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8.39.110.
Sale of VehicIes.
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In all cases where a Vehicle seized pursuant to this Chapter is forfeited to the City, the
Vehicle shall be sold by the Police Department, their agent, or designee, and the proceeds of the sale
shall be distributed and appropriated as follows:
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A.
To the bona fide or innocent purchaser, conditional vendor, mortgagee or lien holder
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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 and sale of the Vehicle orders a distribution to that person.
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B.
To the City for all expenditures made or incurred by it in connection with the
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publication of the notices set forth in this Chapter, and sale of the Vehicle, including expenditures
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for any necessary repairs, storage or transportation of any Vehicle seized under this Chapter.
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C.
The remaining funds shall be placed in the General Fund of the City of
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MC-l177
I
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
FORFEITURE OF NUISANCE VEHICLES.
2
3
San Bernardino, subject to appropriate accounting controls and financial audits for all deposits and
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expenditures.
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D.
All the funds placed in the General Fund pursuant to this Chapter shall not supplant
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any funds that would, in the absence of this Chapter, be made available to support the law
enforcement and prosecutorial efforts of the Police Department or the City Attorney's Office.
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8.39.120.
Nonexclusive Remedy.
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This Chapter is not the exclusive regulation or penalty for the illegal depositing, discarding,
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dumping andlor placing of garbage, rubbish, recyclable discards, andlor green waste. Nothing in this
Chapter shall be deemed to prevent the City Attorney from commencing a civil action to abate a
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nuisance in addition to, alternatively to, or in conjunction with the proceeding set forth in this
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Chapter, nor shall anything in this Chapter be deemed to prevent the City from commencing a
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criminal action with respect to the nuisance in addition to alternatively to, or in conjunction with the
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proceedings set forth in this Chapter, or other ordinance, statute or state law.
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8.39.130.
Severability.
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If any provision of this Chapter is determined by any court of competent
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jurisdiction, or by any federal or state agency having jurisdiction over its subject matter, to be
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invalid and in conflict with any paramount federal or state law or regulation now or hereafter in
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effect, or is determined by that court or agency to require modification in order to conform to the
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requirements of that paramount law or regulation, then that provision will be deemed a separate,
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distinct, and independent part of this chapter, and such determination will not affect the validity
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and enforceability of any other provisions. If that paramount federal or state law or regulation is
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subsequently repealed or amended so that the provision of this chapter determined to be invalid
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or subject to modification is no longer in conflict with that law or regulation, then that provision
will again become effective and will thereafter be binding."
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MC-U77
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 8.39
TO THE SAN BERNARDINO MUNICIPAL CODE REGARDING SEIZURE AND
2 FORFEITURE OF NUISANCE VEHICLES.
3
4
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the
5 16th day of August
6
7 COUNCIL MEMBERS:
8 ESTRADA
9 LONGVILLE
10 MCGINNIS
II DERRY
12 KELLEY
13 JOHNSON
14 MCCAMMACK
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, 2004, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
x
x
x
x
x
x
x
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The foregoing Ordinance is hereby approved this17thd of August ,2004.
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Approved as to form
and legal content:
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JAMES F. PENMAN
Cit Attorney
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Lu<..
H ALLES, Mayor
f San Bernardino
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