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HomeMy Public PortalAboutOrd. 1559Ordinance No. 1559 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LYNWOOD ADDING SECTION 3 -26 TO THE LYNWOOD MUNICIPAL CODE RELATING TO NUISANCE VEHICLES AND PROVIDING FOR THE SEIZURE AND FORFEITURE OF VEHICLES USED FOR THE PURPOSE OF SOLICITING AND COMMITTING ACTS OF PROSTITUTION WHEREAS, the residents of the City of Lynwood live with the nuisance created in their neighborhoods by vehicles that are brought into their communities for the purposes of soliciting and committing acts of prostitution, and they have brought this matter to the attention of their local elected officials; WHEREAS, persons who use vehicles to solicit and commit acts of prostitution contribute to blight, increased crime in the City of Lynwood, and the general decay of neighborhoods in our City; WHEREAS, the seizure and forfeiture of vehicles that are used in solicitation and committing acts of prostitution will serve to abate the nuisance caused by these activities in that the person driving or controlling these vehicles will be deterred from using vehicles to facilitate their crimes; WHEREAS, California Government Code Section 38771 permits the legislative body of a city to declare what constitutes a nuisance; and WHEREAS, on July 24, 2000, the California Court of Appeal, First Appellate District, Division Three, decided the case of Horton v. City of Oakland, 82 Cal. App. 4ch 580, specifically held that cities may enact a vehicle seizure ordinance where they do not conflict with or are preempted by state law in the same area; WHEREAS, declaring as nuisances the-vehicle of persons who solicit and commit acts of prostitution will deter these individuals from using their vehicles to create nuisance conditions if their vehicles are subject to seizure and forfeiture. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LYNWOOD DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: Section 3 -26 entitled NUISANCE VEHICLES — PROSTITUTION is added to Chapter 3 of the Lynwood Municipal Code to read as follows: 3 -26.1 Definitions. As used in this Chapter: "Abate" and "abatement" mean an action to seize, impound, forfeit, or otherwise remedy a nuisance related to activity or condition by such means and in such manner as is necessary to protect the health, safety, or general welfare of the public. "Business day" means a day that Lynwood City Hall is open to conduct public business. "City Attorney" shall include any authorized Deputy City Attorneys. "Driver" means any person who drives or is in physical control of a vehicle. "Prostitution" is defined in California Penal Code Section 647(b). "Vehicle" means any transportation device that requires the driver to have in his or her immediate possession a valid driver's license for the appropriate class of Vehicle being driven. 3 -26.2 Abatement of Nuisance Vehicle by Seizure and Forfeiture a. Any vehicle used to solicit or to agree to engage in or to engage in an act of prostitution is declared a nuisance and the vehicle shall be enjoined and abated as provided in this section. b. Any vehicle used to attempt to procure another person for the purposes of prostitution or to procure another person for the purposes of prostitution is declared a nuisance and the vehicle shall be enjoined and abated as provided in this section. C. Any vehicle used to cause, induce, persuade or encourage, by promises, threats, violence, or by any device or scheme, another person to engage in conduct prohibited by the California Penal Code as acts of prostitution or solicitation of prostitution is declared a nuisance and the vehicle shall be enjoined and abated as provided in this section. d. 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 responsible for creating a public nuisance. 3 -26.3 Title to Vest in the City. All right, title and interest in any vehicle described in Subsection B above shall vest in the City upon conviction of the act giving rise to the nuisance under this section. 3 -26.4 Seizure of Vehicle. a. A peace officer may seize a vehicle subject to forfeiture under this section upon the issuance of an order by a court having jurisdiction of the vehicle. Seizure without court order may be made in any of the following circumstances: 1. The seizure is incident to an arrest or search under a search warrant; 2. There is probable cause to believe the vehicle was used in violation of this section. b. A peace officer seizing a vehicle under this section shall complete a receipt in accordance with Penal Code Section 1412 and deliver it to the person from whose possession the vehicle was seized. c. An immediate investigation shall be made by the public agency making the seizure as to any potential claimant to a vehicle whose right, title, interest, or lien is of record in the Department of Motor Vehicles of this or any other state or appropriate federal agency. If the public agency finds that any person, other than the registered owner, is the legal owner, and the ownership did not arise subsequent to the date and time of arrest or seizure of the vehicle or notification of the forfeiture proceedings, it shall within two business days of the vehicle's seizure, send a notice of seizure to the legal owner at his or her address appearing on the records of the Department of Motor Vehicles of this or any other state of any appropriate federal agency. d. The public agency seizing the vehicle shall provide any potential claimants discovered as a result of the investigation set out in Subsection D3 with the opportunity for a post- seizure hearing to determine the validity of the seizure. The post- seizure hearing shall be conducted within two business days of the request. The public agency may authorize its own officer or employee to conduct the hearing as long as the hearing officer is not the same person who directed the seizure of the vehicle. Failure of either the registered legal owner, or his or her agent, to request or attend a scheduled hearing within the appropriate time frame shall satisfy the post- seizure requirement. The notice shall include the following: (a) the name, address and telephone number of the agency providing the notice; (b) the authority and reason for the seizure; (c) a statement that in order to receive their post- seizure hearing, the owners, or their agents, shall request the hearing in person, in writing, or by telephone within ten calendar days of the date of the notice; and (d) the time in which a claim of interest in the vehicle seized or subject to forfeiture is required to be filed. e. A vehicle seized pursuant to this section, where appropriate may be held as evidence in any proceeding brought by the City Attorney. 3 -26.5 Forfeiture and Notice of Intended Forfeiture of Vehicle. a. The City Attorney may, pursuant to this section, order the forfeiture of vehicles seized under this section. b. If the City Attorney determines that, the factual circumstances warrant forfeiture of the vehicle described in Subsection B, the City Attorney shall serve a notice of intended forfeiture upon any person who has an interest in the seized vehicle. The notice shall be served as soon as practicable, but in any event within 30 calendar days of the seizure of the vehicle subject to forfeiture. c. The notice of intended forfeiture shall be served as follows: The notice of intended forfeiture shall be served by personal delivery or certified mail, return receipt requested, upon any person who has an interest in the seized vehicle as determined pursuant to Subsection D3. 2. In the event that the person entitled to service refuses to accept certified return receipt mail or cannot be personally served, service may be made by substituted service. Substituted service may be accomplished by any one of the following methods: (a) By leaving a copy during usual business hours at the recipient's business with the person who is apparently in charge, and by thereafter mailing by first class mail a copy to the recipient where the copy was left; (b) By leaving a copy at the recipient's dwelling or usual place of abode, in the presence of a competent member of the household and thereafter mailing by first class mail a copy to the recipient at the address where the copy was left. d. If the person entiiled to service lives out of state and will not accept certified return receipt mail, then service may be made by first class mail. e. If the person entitled to notice cannot be located, or service cannot be effected as set forth in this subsection, service may be made by publication in a newspaper of general circulation. Service shall be deemed sufficient when it is accomplished pursuant to Government Code Section 6063. f A notice of intended forfeiture shall include: 1. A description of the vehicle; 2. The date and place of seizure; 3. The violation of law alleged with respect to forfeiture of the property; 4. The instructions for filing and serving a claim with the court pursuant to Subsection F and the time limits for filing a claim. 3 -26.6 Claim Opposing Forfeiture a. A person claiming an interest in the vehicle seized pursuant to Subsection B must within ten calendar days from the date of the notice of intended forfeiture or within 30 calendar days from the date of first publication of the notice of intended forfeiture, file with the Superior Court of the county in which the vehicle was seized, a Claim Opposing Forfeiture, verified in accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the vehicle. An endorsed copy of the claim shall be served upon the City Attorney within ten (10) calendar days of the filing of the claim. b. If a verified claim is filed in accordance with this section, the forfeiture proceeding shall be set for hearing within 30 calendar days from the date that claim is filed with the court. The City Attorney shall file a petition for forfeiture within ten (10) calendar days of service of the claim upon the City Attorney. c. The hearing shall be before the Superior Court of Los Angeles County. The provisions of the Code of Civil Procedure shall apply to proceeding under this section unless otherwise inconsistent with the provisions or procedures set forth in this section. However, in proceeding under this section, there shall be no joinder of actions, coordination of actions, except for forfeiture proceeding, or cross - complaints, and the issues shall be limited strictly to the questions related to this section. Trial shall be by court or jury. d. With respect to vehicles described in Subsection B for which forfeiture is sought and as to which forfeiture is contested, the City Attorney shall have the burden of proving by a preponderance of the evidence that the vehicle was used as set forth in Subsection B. e. Upon proof that the vehicle was used for any of the purposes set forth in Subdivision B, the court shall declare the vehicle a nuisance and order that the vehicle be forfeited sold, and the proceeds distributed as set forth in Subsection G. The court may make a different distribution of the proceeds, if the court finds that the claimant did not know that the vehicle was used for a purpose that constitutes a violation of this section. f If no claims are timely filed, the City Attorney shall prepare a written declaration of forfeiture of the vehicle to the City. A 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 proceeds from the disposal of the vehicle declared forfeited by the City Attorney shall be distributed in accordance with Subsection G. The City Attorney ordering forfeiture pursuant to this section shall provide a copy of the declaration of forfeiture to any person who. received notice of the forfeiture proceedings. 3 -26.7 Disposal of Vehicle and Distribution of Proceeds a. In all cases where vehicles seized pursuant to this section are forfeited to the City, the vehicles shall be sold, or if cash is paid as settlement in lieu of forfeiture of the vehicle, the proceeds of sale or settlement shall be distributed and appropriated as follows: To pay costs associated with the towing, storage, and release of any vehicle seized under this section. 2. To pay costs associated with the sale of the vehicle. 3. To the lien holder of the vehicle, if any, up to the amount of his, her, or its interest in the vehicle. b. The remaining funds shall be distributed as follows: 1. To the City for all expenditures other than personnel costs, made or incurred by the City in connection with the enforcement of this section, including but not limited to, costs for equipment, storage fees, impound fees, investigation and supplies related to enforcement of this section. 2. To local law enforcement for all expenditures other than personnel costs, made or incurred by the Department in connection with enforcement of this section, including but not limited to, costs for equipment, investigation and supplies related to enforcement of this section. 3. 25% of any proceeds to the City of Lynwood's after - school educational programs. 4. The remainder to the general fund of the City of Lynwood. 5. The funds distributed to the City pursuant to this Section shall not supplant any funds that would, in the absence of this subsection, be made available to support the law enforcement and prosecutorial efforts of these agencies. 3 -26.8 Vehicles Not Subject to Forfeiture a. A vehicle is not subject to impoundment of forfeiture and the City shall release the vehicle to the registered owner or legal owners or to an authorized agent under any of the following circumstances: 1. when the vehicle was stolen; 2. When the vehicle is subject to bailment and was driven by an employee of the bailee; such as a parking lot attendant, or a garage mechanic; b. A vehicle is not subject to forfeiture if a community property interest existed in such vehicle prior to the act giving rise to the nuisance under this chapter and the community property interest owner meets all of the following requirements: 1. The community property interest owner request release of the vehicle from the City Attorney prior to disposal of the vehicle by forfeiture 2. The community property interest owner submits proof to the City Attorney that a community property interest existed prior to the date of the act giving rise to the nuisance. 3. The community property interest owner submits proof to the City Attorney that the vehicle is the only vehicle available to them. 4. The community property interest holder submits proof to the City Attorney that he or she, or an authorized driver other than a defendant in any criminal trial arising out of the act giving rise to the nuisance in this chapter, is properly licensed and that the seized vehicle is properly registered and insured pursuant to the California Vehicle Code. 5. The community property interest holder is not a criminal suspect in a police investigation of the act giving rise to the nuisance under this chapter. 6. All towing and storage charges related to the seizure and impoundment and any administrative charges authorized by law are paid. 3 -26.9 Recovery of Monetary Loss. Nothing in this chapter shall preclude an owner of a vehicle who suffers a monetary loss from the forfeiture of a vehicle under this section from recovering the amount of the actual monetary loss from the person who committed the act giving rise to forfeiture under this section. 3 -26.10 Further Rules and Regulations. The City Council reserves the right to adopt by resolution additional rules and regulations which shall become effective immediately upon adoption, which include, but are not limited to, rules and regulations relating to bidding, forfeiture, and settlement procedures. SECTION 2: The City finds that this action is within the grant of authority given to it by the State Legislature. SECTION 3: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining sections, subsections, sentences, clauses, phrase, or portions of this ordinance. The City Council hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. SECTION 4: This ordinance shall take effect thirty (30) days after its final passage, and within fifteen (15) days after its passage, the City Clerk shall cause it to be posted as required by law, and hereby designated for that purpose. PASSED, APPROVED AND ADOPTED this 2nd day of November , 2004. ATTEST: ajmec lra'='�' 11 Andrea L. Hooper, City Clerk APPROVED AS TO FORM: J. Amoldo Beltran, City Attorney Louis Byrd, Ma or aepJoh Y. W erim City NIViager First read at a regular meeting of the City Council held on the 21st day of September, 2004 and adopted and ordered published at a regular meeting of said City Council on the 2nd day of November, 2004. STATE OF CALIFORNIA ) )SS COUNTY OF LOS ANGELES ) I, the undersigned, City Clerk for the City of Lynwood, do hereby certify that the foregoing Ordinance was passed and adopted by the City Council of the City of Lynwood at a regular meeting held on the 2nd day of November , 2004. AYES: COUNCILMEN PEDROZA, RODRIGUEZ, SANTILLAN, VASQUEZ AND BYRD NOES: NONE ABSENT: NONE ABSTAIN: NONE STATE OF CALIFORNIA ) )SS COUNTY OF LOS ANGELES ) I, the undersigned, City Clerk of the City of Lynwood, and Clerk of the City Council of said City, do hereby certify that the above and foregoing is a full, true and correct copy of Ordinance No. 1559 on file in my office and that said ordinance was adopted on the date and by the vote therein stated. Dated this 2nd day of November -12004. 0,'� /' 4'::� City Clerk, City of Lynwood