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:
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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