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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
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processing fee to the City, or, if the person intends to challenge the seizure andlor
impoundment, a bond may be posted to obtain the release of the vehicle pending
any administrative hearings andlor appeal, if any; otherwise the vehicle shall
remain impounded subject to the decision ofthe hearing officer andlor the Special
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.
.G22 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, unless an amount is set
forth in the Schedule of Fees, and if so, the Schedule of Fees shall take
precedence. or an amount as set forth in the City's Schedule of Fees, vmichever
is greater, unless otherwise authorized by this ordinance and ordered by the
Special Master or, if appealed, as ordered by the appellate court
(l) 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 unrelated 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:
ill 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
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® -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
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.
.cd 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
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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
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.
.chl 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 in
actual physical control of the vehicle at the time of the seizure and impoundment,
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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.
(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.
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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
time expended multiplied by the Special Master's hourly rate and, if
applicable, the hourly cost of the hearing officer) and the towing and
storage charges (hereinafter referred to as "Fees and Costs"); and
b) If the vehicle has not been released pursuant to the posting of a
bond, the vehicle shall not be released until all Fees and Costs, for which
the Contestant and/or the owner are found to be liable, are paid in full or
unless otherwise ordered by the appellate court.
(6) Fifty (50) days following the rendering of the Special Master's order or of
the date of dismissal of any appeal or affirmation of the Special Master's order,
whichever is the greater time (the "Claim Period"), if the Fees and Costs, for
which the Contestant and/or the owner is found to be liable, are not paid in full,
or if a bond has not been posted for the full amount and no appeal has been filed,
or should an appeal be filed and either dismissed or the order of the Special
Master is affirmed, then the following action may be taken by the City:
a) If a bond was filed, or administrative fee paid, the amount paid
shall be transferred to the City for its use and the amount received shall be
treated as a set-off to the total amount owed to the City; and
b) If any amount remains owed to the City (including all costs of any
hearings) after setting off any fees paid or bond posted, the vehicle may be
re-seized if previously released and the vehicle may be sold to pay for all
Fees and Costs remaining due. If any amount of the sales proceeds
Page60fS
1 remains after all Fees and Costs have been paid, then, such remaining
2 amount shall first be paid to the lien holderes) of record, if any, upon
3 written demand, to the extent of the lienes). If any balance remains
4 thereafter or, if there was no lien holder, it shall be paid, upon written
5 demand, to the owner.
6
7 (7) If the vehicle is not sold and remains unclaimed after the Claim Period, it
8 shall be considered abandoned property and it may be disposed of in accordance
9 with Florida Statutes or other applicable law.
10
11 15-107. Appeal: The Contestant or the City may appeal the final ruling of
12 the Special Master, to the Appellate Division of the Circuit Court for the Eleventh
13 Judicial Circuit located in Miami-Dade County, Florida, within 30 days of the date of the
14 final Special Master's order. The City may charge the appellant a reasonable fee for the
15 preparation of the record on appeal. The filing of a notice of appeal is jurisdictional and
16 the right to appeal is waived if the notice of appeal is not timely delivered to the
17 Appellate Division of the Clerk of the Circuit Court.
18
19 15-108. Administrative and Appellate Rules: The City Manager is
20 authorized to establish rules for administering this ordinance, including rules for the
21 probable cause hearing and for the administrative hearing before the Special Master.
22
23 Section 2: Codification. The provisions of this ordinance shall become and be made
24 part of the Code of Ordinances of the City of South Miami as amended; that the sections of this
25 ordinance may be renumbered or re-lettered to accomplish such intention; and that the word
26 "ordinance" may be changed to "section" or other appropriate word.
27
28 Section 3. Severability. If any section, clause, sentence, or phrase of this ordinance is
29 for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding
30 shall not affect the validity of the remaining portions of this ordinance.
31
32 Section 4. Ordinances in Conflict. All ordinances or parts of ordinances and all
33 sections and parts of sections of ordinances in direct conflict herewith are hereby repealed.
34 However, it is not the intent of this section to repeal entire ordinances, or parts of ordinances,
35 that give the appearance of being in conflict when the two ordinances can be harmonized or
36 when only a portion of the ordinance in conflict needs to be repealed to harmonize the
37 ordinances. If the ordinance in conflict can be harmonized by amending its terms, it is hereby
38 amended to harmonize the two ordinances. Therefore, only that portion that needs to be repealed
39 to harmonize the two ordinances shall be repealed.
40
41 Section 5. Effective Date. This ordinance shall become effective upon enactment.
42
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PASSED AND ENACTED this __ day of ,2013.
ATTEST: APPROVED:
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CITY CLERK
1st Reading
2nd Reading
MAYOR
READ AND APPROVED AS TO FORM: COMMISSION VOTE:
LANGUAGE, LEGALITY AND Mayor Stoddard:
EXECUTION THEREOF Vice Mayor Liebman:
Commissioner Newman:
Commissioner Harris:
Commissioner Welsh:
CITY ATTORNEY
Page 8 of8
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday. Sunday and
Legal Holidays
Miami. Miami-Dade County. Florida
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
Before the undersigned authority personally appeared
M. ZALDIVAR. who on oath says that he or she is the
LEGAL CLERK, Legal Notices of the Miami Daily Business
Review flk/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami-Dade
County, Florida; that the attached copy of advertisement.
being a Legal Advertisement of Notice in the matter of
CITY OF SOUTH MIAMI
PUBLIC HEARING FOR 11/19.2013
in the XXXX Court,
was published in said newspaper in the issues of
11/08/2013
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami-Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Miami-Dade County,
Florida, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second class mail matter at the post
office in Miami in said Miami-Dade County, Florida, for a
period of one year next preceding the first publication of the
attached copy of advertisement; and affiant further says that he or
she has neither paid nor promised any person, firm or corporation
any discount, rebate, commission or refund for the purpose
of securing this advertiseme t for publication in the said
newspaper.
08 2013
M. ZALDIVAR personally known to me
8. tHOfltAS
• Notary p.-.State of FItlfIda
: .§ My COmln. ElCplfn Nov 2,2017
;,"!;. # Commlulon II FF 034747 , ~t oq." "",:ii.:.\.·" Bellded Through Natiellal HofllY Assn.
CITY OF SOUTH MIAMI
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY given that the City Commission 6f the City of
South Miami, Florida will.conduct Public Hearing(s) at its regular City
Commission. meeting 'scheduled for Tuesday; November .19, 2013,
beginning at 7:00 p:m., in the City Commission Chambers, 6130 Sunset
Drive; toconsiderthe.following item(s): '. . . . .
A Resolution submitfinglo the electors.theguestion oIYihether
various .technicalchanges,.specificlililyidentified in exhibit ~A"
to this Resolution, should be made to.!heCity C.harter. .
A Resolution sl.lbmittingt()Jh~ electors the question of whether
various sUbstantive changes, spe.cifipally identified in exhibit "A"
to this RI?S9Iution,sh()ulc:lJ')!I~rnai::l!?JoJhe,City,C.hlilrter ...
~'i' ~;'f:Y;J1'V1't lzEo: ~:<':,~',."~,:.:~:=~~,~,,,'~:::(\ .:'. ",'
A Resolution s~bmitting·totiieeleCtdfs.thequestiorioi whether
the City's General Elections shouldbe moved from February to.
November ofe~en.numpered yea~t().co1ncid\lj~jthth~. ~Ilte on
which the federal government's general elections. are held.
~tMo~~~J~g~~u;n,. PI:a~~:~~~~;(A~~:g!~~~i~f~~~ife,··
;i.~ .11;l~~Ii~M}M·~n~~li~t~;6~c I .
'eL .
Pursuan; to Florida Statutes 286.0105,1tJei1~ ~Jcfvises the
public that if a person decides to. IlPpeat~(iy,~ae,.by this
Board, Agency or Comrnlssion with respeCtto~rif . . . . cgn~IQered at
its meeting pr hearing! he er she will need !lrecord.~oftheprOceedings,
arid that for such pumpse, affected persori.l)1~y need to ensure that a,
verbatim record oftheprqceedings ism~qe.v,.hicJf~eC9r(Hricludes the
testimony ana evidence upon which the appe~1 is to be based. . _
11/8 "13-3-211/2182876M