Loading...
231 2 3 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 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 ORDINANCE NO.: _____ _ An Ordinance amending Chapter 15 of the Code of Ordinances of the City of South Miami, by adding Article IV providing for the seizure and impoundment of vehicles that are involved with the commission of a crime and providing for notice, an administrative fee, procedure and an appeals process. WHEREAS, the Police Department is engaged in not only the enforcement of laws and ordinances, but also in crime prevention, thereby making our community safer; and WHEREAS, administrative fees serve a dual purpose of not only defraying the costs associated with enforcing the law, but also have the effect of discouraging and displacing illegal and antisocial behavior; and WHEREAS, enforcing motor vehicle traffic and insurance laws, drug laws and DUI laws, use a disproportionate amount of time for police services. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. The Code of Ordinances of the City of South Miami is hereby amended by adding a new article and section to Chapter 15 to read as follows: Article IV. Vehicle Seizure and Impoundment 15-102. Seizure and Impoundment of Motor vehicles: A motor vehicle shall be subject to seizure, towing and impoundment pursuant to this ordinance whenever a police officer has probable cause to believe that the vehicle was used in the commission of a crime or was, in any manner, an instrumentality of a crime, whether a felony or a misdemeanor, and whether the criminal activity is proscribed by any Florida statute or section of the Code of Ordinances of the City of South Miami or Miami-Dade County and where no forfeiture of the vehicle is being sought by the City under the Florida Contraband Forfeiture Act, and where the motor vehicle is not currently the subject of a Federal or State forfeiture proceeding. 15-103. Administrative fees for vehicles seized or towed for violations: .ill) Any' person or entity, legal or otherwise (hereinafter referred to as "Person"), who owns, operates, or has a right to possession or control of any vehicle located in the City, whose motor vehicle is seized or towed by the City, pursuant to this Article where no forfeiture of the vehicle is being sought by the City under the Florida Contraband Forfeiture Act, and who wishes to obtain the release of the vehicle from impoundment shall pay the required administrative processing fee to the City, or, if the person intends to challenge the seizure and/or impoundment, a bond may be posted to obtain the release of the vehicle pending any administrative hearings and/or appeal, if any; otherwise the vehicle shall remain impounded subject to the decision of the hearing officer and/or the Special 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 Master pursuant to the administrative process provided in Section 15-105 and 15- 106. Nothing contained herein shall require the posting of a bond in order to challenge the seizure or impoundment. All towing companies that tow a vehicle pursuant to this ordinance shall not release the vehicle until they have the original vehicle release receipt issued by the City of South Miami Police Department ("Police Department") authorizing the release of the vehicle or by order of court or the order of the Special Master. Any towing company that releases a vehicle before a vehicle release receipt is issued by the Police Department or pursuant to the order of the Hearing Officer, Special Master or court of competent jurisdiction, shall be liable to the City in the amount of the administrative fee as described in this Section. .chl Administrative processing fee: All persons who have a right to the possession or control of any vehicle seized pursuant to this ordinance shall pay to the City an administrative fee, or post a bond in said amount, for the release of the seized vehicle. The amount of the fee shall be $250.00, or an amount as set forth in the City'S Schedule of Fees, whichever is greater, unless otherwise authorized by this ordinance and ordered by the Special Master or, if appealed, as ordered by the appellate court (1) The payment of an administrative fee, or the posting of a bond, pursuant to this ordinance shall be paid by cashier's check, money order, or any other form of payment as allowed by the City, made payable to the City of South Miami and delivered to the Communications Officer on duty at the City's police station. The Police Department shall tender to the individual paying the fee, or posting the bond, a vehicle release receipt which may be presented to the contract towing company. The fee shall be deposited in the State Forfeiture Fund to be used only by the Police Department in accordance with Florida Statute 932.7055. (2) The administrative fee is umelated to towing and storage charges imposed by the contract towing company. The owner, or any other person having a right to the return of the vehicle, is responsible for paying the contract towing company any fees owed for towing and storage. 15-104. Towing and Notification of Seizure: W All vehicles seized pursuant to this ordinance shall be towed in accordance with the City'S towing ordinance and all applicable towing procedures pursuant to Florida law; and .chl All persons who are in possession of the seized vehicle at the time of the seizure or at the time of impoundment, as well as any owner, lessors, renters, lienors, insurers or other persons who have an interest in the vehicle and whose name can be obtained through an internet online search or similar electronic search, of the applicable state motor vehicle records ("Interested Parties"), shall be sent, unless otherwise hand delivered to the Interested Person, notification in writing ("Notification of Rights") of the right to challenge the seizure and/or the impoundment, the administrative procedure to be followed, including any time limitations and right to appeal, the right to the return of the vehicle upon posting a 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 bond, and of the right, in lieu of a challenge or an appeal, to pay the administrative processing fee as well as all towing and storage costs. if} Within twelve (12) hours of the time when the motor vehicle is seized and towed by the Contract Towing Company, if the administrative fee has not been not paid and no previous notice has been given to all Interested Parties entitled to notice pursuant to this ordinance, the Contract Towing Company shall send a Notification of Rights to the Interested Parties, who have not previously received such notification, by United States certified return receipt mail and to otherwise comply with the notification requirements of Florida State Statute 713.78(4)(a) & (c). A copy of the notice and a copy of the State of Florida vehicle information sheet showing the names and addresses of all Interested Parties shall be delivered to the Police Department within 23 hours of the time that the notice is sent to the Interested Parties; otherwise, the Contract Towing Company shall pay a fee of thirty five (35) dollars to the Police Department. The Contract Towing Company shall deliver the return receipt and any other proof of delivery of the Notification of Rights to the Police Department immediately upon receipt of same by the Contract Towing Company. The Contract Towing Company shall, in addition to the thirty five (35) dollar administration fee, if any, be liable to the City for any damages the City suffers due to the towing company's failure to fulfill the requirements of the notification section of this ordinance. @ In the event that the Contract Towing Company fails to timely notify the Police Department of the fulfillment of its duty to send the initial notice to Interested Parties and to deliver the required information and document, the Police Department shall contact the Department of Highway Safety and Motor Vehicles, or the appropriate state agency in charge of motor vehicle registration, if known, (hereinafter collectively referred to as "DHSMV"), within 24 hours of the time of seizure of the vehicle, through the medium of electronic communications, and shall request a search of DHSMV's files to determine the owner's name, the name of the insurance company insuring the vehicle, and whether there are any other parties who may have an interest in the vehicle such as lessors, renters, or lienors. Within 24 hours after receiving the requested information, the Police Department shall deliver such information to the towing company ("Contract Towing Company"). 15-105. Administrative Procedure The City shall, within 30 to 60 days of the seizure, schedule a final hearing before the City's Special Master which shall provide sufficient time to send notice of the date, time and place of the final hearing to the last known addresses of all Interested Parties at least 20 days before the scheduled final hearing. {ill All persons who have a right to notification of the seizure of the motor vehicle pursuant to this ordinance, individually or through their agents or representatives, shall have the right to contest the seizure and/or impoundment of the vehicle. The contesting party ("Contestant") shall deliver a letter or other writing to the City Clerk within 30 days of the seizure of the vehicle notifying the clerk that the Contestant is challenging the seizure or impoundment ("Challenge Notification"). The Contestant may also make a written request for a preliminary 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 hearing. All notices of challenge and all requests for a preliminary hearing shall be delivered to the City Clerk and delivery shall be by United States certified return receipt mail. Delivery may also be made by hand delivery, provided a copy is kept by the Contestant on which the Clerk's office has stamped the date and time of receipt. The return receipt card or the copy with the Clerk's receipt stamp shall be produced on demand of the City. It shall be the duty of the Clerk's office to stamp on all hand delivered documents the date and time of receipt. The City Clerk shall deliver a copy of the notice to the Police Department, the City Attorney and to the head of Code Enforcement who shall schedule all hearings and notify the City's Hearing Officer if a preliminary hearing is requested. The request for hearing shall be delivered to the City Clerk within 15 calendar days of receipt of police notice of the seizure, whether receipt of the police notice is by hand or by mail. The delivery of the request for a preliminary hearing is jurisdictional and the right to the preliminary hearing, as well as the right to challenge or otherwise appeal the failure to provide a probable cause hearing for the seizure or impoundment of a vehicle, is waived if the request is not timely delivered to the City Clerk in the manner prescribed in this subsection. The burden of proof is on the Contestant and the failure to produce a return receipt card signed by the Clerk or his/her designee or a copy of the notice or request containing the Clerk's official receipt stamp shall be irrefutable proof that the notice and/or request was not timely made. (Ql Anyone who has a Right to Notification of the seizure of a vehicle and a right to its possession shall have the right to a release of the City's hold on the vehicle upon paying the Administrative Fee or by posting a bond with the Police Department. The bond shall be in the amount of the administrative fee as set forth in this ordinance and the bond shall be paid to the order of City of South Miami by cashier's check, money order, or as otherwise authorized by the City for the payment of the administrative fee. ill The Notification of Rights shall be delivered to the person who IS III actual physical control of the vehicle at the time of the seizure and impoundment, and it shall be made in writing and delivered to such person at the time that the vehicle is seized. 15-106. Administrative Hearing: The City shall, upon receipt of notice of the seizure of a vehicle pursuant to this ordinance, schedule a final hearing to determine the rights and liabilities of all Interested Parties. If a timely request for a preliminary hearing has been filed with the City Clerk in accordance with the requirements of this ordinance, then: (1) The City shall schedule the preliminary hearing with the City's Hearing Officer ("Hearing Officer") to occur within 10 days of receipt of the request for a preliminary hearing. The City Manager shall appoint the Hearing Officer. A notice of the hearing shall be sent to the owner and the Contestant informing them of the date, time, and place of the hearing either by electronic means to the address or number provided in the request for preliminary hearing or by United States mail within 48 hours after the hearing has been set. 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 (2) The preliminary hearing shall determine whether the officer who seized the vehicle had probable cause to believe that the vehicle was used in violation of this ordinance. The rules of evidence shall not apply and the Contestant may present witnesses and other evidence. The Hearing Officer shall have five (5) Business Days following the preliminary hearing to render a written order with findings of fact and conclusions as to the issue of probable cause and to file the document with the City Clerk. A copy shall be mailed to the owner and Contestant. If the Hearing Officer finds that there was no probable cause to seize and/or impound the vehicle, then the City's hold on the vehicle shall be released without any charge for administrative fees or, if a bond was filed, the payor shall be reimbursed the amount of the bond paid by the payor. (3) If the Hearing Officer finds that there was probable cause, then the matter shall proceed to a final hearing before the Special Master. (4) The City shall have the burden, at the final hearing before the Special Master, to show by clear and convincing evidence that the vehicle was used in or was attempted to be used as an instrumentality in the commission of or to conceal a crime, or in aiding or abetting in the commission of a crime, or was, in any manner, used as an instrumentality of a crime, whether or not comprising an element of the crime. The rules of evidence shall apply to the final hearing and the parties shall be allowed to present witnesses and other evidence and to cross- examine adverse witnesses, the right to make an oral presentation, the right to hire one's own counsel, and the final decision shall be based entirely on the relevant legal rules and the evidence adduced at the hearing. (5) The Contestant shall have the right to raise or plead defenses to the seizure of the vehicle, provided the defenses are in writing and delivered to the City Clerk by United States certified return receipt mail at least 15 days prior to the hearing. The defenses shall include but are not limited to the allegation that the Contestant was an innocent party to the criminal activity ("Innocent Owner Defense"). An innocent party is one who neither knew, nor, if he had made a reasonable inquiry, would have had reason to believe that the vehicle was being used, would be used or was likely to be used as proscribed by this ordinance. If the written defenses are not timely received by the City Clerk, the defenses shall be waived unless the Special Master grants the Contestant leave to file an untimely defense. Leave to file untimely defense shall not be granted unless the City is granted a continuance of at least sixty (60) days, if requested by the City. If the Contestant pleads and proves a valid defense by a preponderance of the evidence, the City shall release its hold on the vehicle without charge of an administrative fee, and the successful Contestant shall be entitled to the return of any bond the Contestant posted or administrative fee paid by or for the Contestant. If the Special Master finds that the vehicle was used in the commission of a crime or was, in any manner, an instrumentality of a crime, then, unless a complete defense was pled and proven: a) The Special Master shall enter an order finding that the owner and the Contestant are jointly and severally liable for the payment of the administrative processing fee, any fees and costs associated with the preliminary hearing and the Special Master hearing (hearing charges shall be as set in the City's Fee Schedule, or shall be based on the amount of 250 time expended multiplied by the Special Master's hourly rate and, if 251 applicable, the hourly cost of the hearing officer) and the towing and 252 storage charges (hereinafter referred to as "Fees and Costs"); and 253 254 b) If the vehicle has not been released pursuant to the posting of a 255 bond, the vehicle shall not be released until all Fees and Costs, for which 256 the Contestant and/or the owner are found to be liable, are paid in full or 257 unless otherwise ordered by the appellate court. 258 259 (6) Fifty (50) days following the rendering of the Special Master's order or of 260 the date of dismissal of any appeal or affirmation of the Special Master's order, 261 whichever is the greater time (the "Claim Period"), if the Fees and Costs, for 262 which the Contestant and/or the owner is found to be liable, are not paid in full, 263 or if a bond has not been posted for the full amount and no appeal has been filed, 264 or should an appeal be filed and either dismissed or the order of the Special 265 Master is affirmed, then the following action may be taken by the City: 266 267 a) If a bond was filed, or administrative fee paid, the amount paid 268 shall be transferred to the City for its use and the amount received shall be 269 treated as a set-off to the total amount owed to the City; and 270 271 b) If any amount remains owed to the City (including all costs of any 272 hearings) after setting off any fees paid or bond posted, the vehicle may be 273 re-seized if previously released and the vehicle may be sold to pay for all 274 Fees and Costs remaining due. If any amount of the sales proceeds 275 remains after all Fees and Costs have been paid, then, such remaining 276 amount shall first be paid to the lien holder(s) of record, if any, upon 277 written demand, to the extent of the lien(s). If any balance remains 278 thereafter or, if there was no lien holder, it shall be paid, upon written 279 demand, to the owner. 280 281 (7) If the vehicle is not sold and remains unclaimed after the Claim Period, it 282 shall be considered abandoned property and it may be disposed of in accordance 283 with Florida Statutes or other applicable law. 284 285 15-107. Appeal: The Contestant or the City may appeal the final ruling of 286 the Special Master, to the Appellate Division of the Circuit Court for the Eleventh 287 Judicial Circuit located in Miami-Dade County, Florida, within 30 days of the date of the 288 final Special Master's order. The City may charge the appellant a reasonable fee for the 289 preparation of the record on appeal. The filing of a notice of appeal is jurisdictional and 290 the right to appeal is waived if the notice of appeal is not timely delivered to the 291 Appellate Division of the Clerk of the Circuit Court. 292 293 15-108. Administrative and Appellate Rules: The City Manager is 294 authorized to establish rules for administering this ordinance, including rules for the 295 probable cause hearing and for the administrative hearing before the Special Master. 296 297 Section 2: Codification. The provisions of this ordinance shall become and be made 298 part of the Code of Ordinances of the City of South Miami as amended; that the sections of this 299 ordinance may be renumbered or re-lettered to accomplish such intention; and that the word 300 "ordinance" may be changed to "section" or other appropriate word. 301 302 Section 3. Severability. If any section, clause, sentence, or phrase of this ordinance is 303 for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding 304 shall not affect the validity of the remaining portions of this ordinance. 305 306 Section 4. Ordinances in Conflict. All ordinances or parts of ordinances and all 307 sections and parts of sections of ordinances in direct conflict herewith are hereby repealed. 308 However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances, 309 that give the appearance of being in conflict when the two ordinances can be harmonized or 310 when only a portion of the ordinance in conflict needs to be repealed to harmonize the 311 ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby 312 amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed 313 to harmonize the two ordinances shall be repealed. 314 315 Section 5. Effective Date. This ordinance shall become effective upon enactment. 316 317 PASSED AND ENACTED this __ day of ,2013. 318 319 ATTEST: APPROVED: 320 321 322 323 CITY CLERK MAYOR 324 325 1 st Reading 326 2nd Reading 327 328 READ AND APPROVED AS TO FORM: COMMISSION VOTE: 329 LANGUAGE, LEGALITY AND Mayor Stoddard: 330 EXECUTION THEREOF Vice Mayor Liebman: 331 Commissioner Newman: 332 Commissioner Harris: 333 Commissioner Welsh: 334 CITY ATTORNEY