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HomeMy WebLinkAbout17-City Attorney . 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: t~~ Recommended Action: That said ordinance be adopted L?~ I Signature (/' o 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 o RLS/js[Autolmpound.RCA] o 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. o RLSIed[CityAttomey/AutoImpound.SRP] -,."'-' '" o 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: 10 11 12 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 18 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. () 21 22 23 24 25 26 27 28 1/1 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 1 -1"""'=-' '-.- - - _ ___~,.",__,_=h__'T "'___"__~_ 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. o 4 5 6 7 8 9 8.35.020 o 10 11 12 13 14 15 16 17 18 19 8.35.030 o 20 21 22 23 24 25 26 27 28 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] 2 -___,=_,-. 7 '_0 ___ 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. o 4 5 8.35.040 6 7 8 9 10 11 12 13 0 14 15 16 17 18 19 20 21 22 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 () 27 28 attendant to, the storage, in accordance with Section 22852 of the Vehicle Code. RLS/ac [NuisanceOrdinance] 3 Y' 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. o 4 5 8.35.060 () 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 8.35.070 () 22 23 24 25 26 27 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 ~..~~,~,.,,~~ o o o 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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. RLS/ac [NuisanceOrdinance] 5 .~._o,~,~..~, -'Crt,",""-'~ e () () ,-.- - .",,0 - TTTT '0 - r:::--'T17"rT"~~""""""_'E'?'''=N.'''~''~TW 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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] 6 o o () 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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] 7 " .0 "" o 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 22 /II 23 III 24 III 25 III 26 /II 0 27 III 28 III RLSlac [NuisanceOrdinance] 8 8 COUNCIL MEMBERS: 9 ESTRADA 10 LONGVILLE 11 MCGINNIS 12 DERRY 13 J{RT .T .F.Y o 14 JOHNSON 15 MC CAMMACK 16 17 18 19 o '-'-.T'j10"~f:ii"~"";"'""""""""'-~_,:,~~ 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. 20 21 22 23 JUDITH V ALlES, Mayor City of San Bernardino Approved as to form 24 and legal content: 25 JAMES F. PENMAN City Attorney 26 o 27 ~~ 1-,P~ 28 (f RLS/ac [NuisanceOrdinance] 9