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HomeMy WebLinkAboutOrdinance 2016-01 Towing/Impoundment ORDINANCE NO. 2016-01 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA; AMENDING CHAPTER 12, MOTOR VEHICLES AND TRAFFIC, OF THE WINTER SPRINGS CODE OF ORDINANCES TO CREATE A NEW ARTICLE V. RELATED TO THE IMPOUNDMENT OF MOTOR VEHICLES UNDER CERTAIN CIRCUMSTANCES INCLUDING BEING USED TO FACILITATE CERTAIN MISDEMEANOR CRIMES AND TO VIOLATE CERTAIN PARKING AND TRAFFIC REGULATIONS; REPEALING SECTION 12-54 OF THE CITY CODE; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY,AND AN EFFECTIVE DATE. WHEREAS, the City of Winter Springs, Florida, (the "City") is granted the authority, under § 2(b), Art. VIII of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the City Commission of the City of Winter Springs, Florida (the "City Commission") finds that motor vehicles are frequently used to facilitate the commission of certain crimes; and WHEREAS, the City Commission also finds that motor vehicles parked in violation of duly enacted parking regulation applicable within the city, or left unattended, where such vehicles impede traffic, create a traffic hazard, and obstruct access to the city's utility facilities are potentially harmful and dangerous to the public; and WHEREAS, the City Commission desires to enact a vehicle impoundment ordinance that empowers police to impound motor vehicles that were used in the commission of certain misdemeanor crimes or parked or left unattended in such a manner to be potentially harmful and dangerous to the public; and WHEREAS, in accordance with the City's municipal home rule powers and the police powers vested in the City by law, the City Commission desires to adopt this Ordinance in order to discourage and deter the commission of certain potentially harmful activities and criminal offenses within the jurisdictional limits of the City; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of City of Winter Springs Ordinance No.2016-01 Page 1 of 10 Winter Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS,AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by reference as legislative findings of the City Commission of Winter Springs. Section 2. Establishment of New Article V, entitled "Impoundment of Motor Vehicles. Article V, entitled "Impoundment of Motor Vehicles" of Chapter 12 "Motor Vehicles and Traffic" of the Code of Ordinances of the City of Winter Springs, Florida, is hereby established,as follows(proposed additions to City Code are indicated by underline): ARTICLE V. IMPOUNDMENT OF MOTOR VEHICLES Sec. 12-100. Impoundment of motor vehicles used to facilitate certain misdemeanor crimes and parking and traffic regulations. (a) Definitions. (1) Lienholder means a bona fide lienholder whose security interest in the vehicle has been perfected in the manner prescribed by law prior to the seizure. (2) Motor Vehicle means a motor vehicle as defined in section 320.01(1), Florida Statutes. (3) Owner or Owner of Record means the person or persons to whom a particular motor vehicle is registered or titled prior to the seizure and impoundment authorized under this section. (4) Person in Control means a person who is found to be in the control of the motor vehicle at the time of the alleged violation other than the owner of the motor vehicle. (5) Special Magistrate means an individual designated and determined to be qualified by the cily commission pursuant to Section 2-58 of the City Code. In the context of this section, the special magistrate shall have the same powers granted pursuant to section 2-59 of the City Code. (b) Construction;Applicability. This section shall not apply and no vehicle shall be seized and impounded pursuant to this section if: City of Winter Springs Ordinance No.2016-01 Page 2 of 10 (1) A law enforcement agency has eLcpressed its intent, in writing, to institute state forfeiture proceedings on the motor vehicle pursuant to the Florida Contraband Forfeiture Act. It is the intent of this subsection to limit the application of this section to crimes and vehicle situations that are not subject to the Florida Contraband Forfeiture Act. (2) The vehicle was reported stolen at the time that it is subject to seizure and impoundment. (3) The person in control of the vehicle at the time of the seizure and impoundment of the motor vehicle was not the owner of the vehicle, and the police officer after reasonable inquiry had probable cause to believe that the owner did not know, or did not have reason to know, that the vehicle was beins used or was likely to be used in the criminal activity which resulted in the seizure and impoundment of the vehicle. (c) Misdemeanor Conduct Prohibited. A motor vehicle used in the commission of one or more of the following_proscribed misdemeanor offenses is subject to seizure and impoundment under this section: (1) A motor vehicle used to facilitate the commission or attempted commission of anv misdemeanor act of prostitution, assignation or lewdness as defined in section 796.07, Florida Statutes, or the exposure of sexual organs as set forth in section 800.03,Florida Statutes. (2) A motor vehicle that is knowingly used in the commission of any misdemeanor act of possession or attem tp ed possession of any controlled substance as defined in section 893.02, Florida Statutes. (3) A motor vehicle that is used, intended or attempted to be used,to facilitate the commission of anv misdemeanor violation of Chapter 893,Florida Statutes. (4) A motor vehicle that is used, intended or attempted to be used,to facilitate the commission of M violation of section 316.061, Florida Statutes (leaving the scene of an accident). (5) A motor vehicle that is used, intended or attempted to be used,to facilitate the commission of any violation of section 322.34, Florida Statutes, driving while license suspended, revoked, canceled, or disqualified. (6) A motor vehicle that is being operated by person driving under the influence as defined in section 316.193, Florida Statutes, when such violation is a City of Winter Springs Ordinance No.2016-01 Page 3 of 10 misdemeanor as defined by Florida Statutes. (7) A motor vehicle that is used in the commission of the offense of driving without a valid license or permit in violation of 322.03,Florida Statutes. (8) A motor vehicle that is being operated on a public street and is not covered by liability insurance, as required by chapter 324,Florida Statutes. (9) A motor vehicle that is used in the commission of the misdemeanor offense of criminal mischief in violation of section 806.13 Florida Statutes. (10) A motor vehicle that is used to dump litter in any manner as prohibited by section 403.413(4), Florida Statutes, in an amount exceeding 15 pounds in weight or 27 cubic feet in volume, but not exceeding 500 pounds in weight or 100 cubic feet in volume and not for commercial purposes. (11) A motor vehicle that is being operated by a person that presents proof of insurance in violation of Section 316.646(4), Florida Statutes (knowingly presenting proof of insurance not currently in force). (12) A motor vehicle that is: 0)parked in violation of any duly enacted parking regulation applicable within the city where such vehicle impedes traffic, creates a traffic hazard, obstructs access to the city's utility facilities, including but not limited to, utility lines, lift stations, fire hydrants and water meters; (ii) appears to be abandoned; (iii) left unattended on the street because the driver of the vehicle is taken into custody by law enforcement and the vehicle is causing a traffic hazard or the vehicle is subject to potential damage or theft; (iv) left unattended on private property because the driver of the vehicle is taken into custody by law enforcement and the property owner, or person in control of the property, has not consented to leaving the vehicle on the subject property vehicle. (d) Seizure and Impoundment. Whenever a police officer has probable cause to believe that a motor vehicle is subject to seizure and impoundment pursuant to this section,the police officer shall be authorized to: (1) Provide for the towing of the motor vehicle to a facility, controlled by city or the 6 's towing agent pursuant to the city's applicable towing procedures. (2) Provide written notice of such seizure and impoundment to all persons whom the city knows, or with reasonable investigation should know, is the owner of record or the person in control of the motor vehicle. The written notice shall advise the persons of the following: City of Winter Springs Ordinance No.2016-01 Page 4 of 10 a. The right to request a hearing pursuant to this section to contest the seizure and impoundment of the motor vehicle, b. The right to request a hearing pursuant to this section to contest the seizure and impoundment of the motor vehicle and immediately retrieve the vehicle from the towing g acility upon the posting with the city of a cash bond, money order, or certified check in the amount of $550.00, plus towing and storage costs, c. The right to waive the hearing and immediately retrieve the vehicle from the towing g_acility upon the payment of the $250.00 administrative penalty, plus towing and storage costs. The waiver shall be in writing. (e) Notice of Impoundment. The required notices to be ig_ven pursuant to this section shall be provided by hand delivery at the time of the seizure and impoundment of the motor vehicle to the person in control and all other persons whom the city knows, or with reasonable investigation should know, have a legal interest in the motor vehicle, including the owner of record and any lienholders, by certified mail, return receipt requested, within 72 hours of the time of the impoundment excluding Saturdays, Sundays, and legal holidays. (f) Request for Hearing. The owner of record of the motor vehicle, or his/her agent or authorized representative shall make a written request for a hearing within seven (7) days from the date the notice of impoundment is received. The request for hearing shall be delivered to the City's police department at the address set forth in the notice of impoundment by hand delivery or certified mail,return receipt requested. (g) Failure to Request Hearing. If a proper request for hearing is not made within the required seven (7) days, the owner of record shall be deemed to have waived the right to a hearing. The motor vehicle shall only be released upon the,payment of the $500.00 administrative penalty,plus towing and storage costs. (h) Hearing before Special Magistrate. (1) The city shall hold a hearing under this section before a special magistrate within ten (10) days of receipt of a timely written request for hearing, excluding Saturdays, Sundays, and legal holidays (2) At the hearing, the city shall have the burden to show, by clear and convincing evidence that the motor vehicle subject to impoundment and seizure was used in violation of this section. If the owner of the vehicle raises as a defense City of Winter Springs Ordinance No.2016-01 Page 5 of 10 at the hearing that he/she was unaware that the motor vehicle was being used or was likely to be used in violation of this section, the city shall establish by preponderance of the evidence that the owner either knew, or should have known after a reasonable inquiry, that the vehicle was being used or was likely to be used in the criminal activity which resulted in the seizure and impoundment of the vehicle. Evidence that an owner received written notification from a law enforcement agency and acknowledged receipt of the notification in writing, that the vehicle had been used in violation of this section on a prior occasion by the person in control of the vehicle at the time of seizure and impoundment, maybe used to establish actual knowledge. In addition, if the owner of the vehicle raises as a defense at the hearing that the vehicle was stolen at the time it became subject to impoundment, the owner must establish by preponderance of the evidence that the vehicle was stolen and that the owner must have formally reported the vehicle as stolen to a law enforcement agency. (3) The formal rules of evidence shall not apply at the hearing, but fundamental due process shall be observed and shall govern the proceedings. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but heangy and circumstantial evidence is admissible. All other evidence of a We commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible whether or not such evidence would be admissible in a trial in the courts of the State. The owner of the motor vehicle shall have the right to be represented by counsel and the police chief or is designee may be represented by the city attorney. Each party and the police chief shall also have the right to call and examine witnesses under oath, to introduce documentary evidence or exhibits, to cross- examine opposing witnesses on any relevant matter even though the matter was not covered under direct examination, to impeach any witness regardless of which party first called him to testify, and to submit rebuttal evidence. (4) If, after the hearing special magistrate determines that the city met its burden of proof and the motor vehicle was used in violation of this section, the special magistrate shall enter an order finding the owner of record of the motor vehicle civilly liable to the city for an administrative civil penalty of$500.00,plus final hearing costs of fifty dollars $50.00), if applicable, and requiring the continued impoundment of the vehicle if the vehicle has not already retrieved by the owner. The owner of the motor vehicle or his/her agent authorized representative, if he/she has not already done so, may immediately retrieve the vehicle from the towing g acility upon payment of the administrative penalty of$500.00, plus final hearing costs of fifty dollars ($50.00), if applicable, and the accumulated costs of towing and storing the vehicle. City of Winter Springs Ordinance No.2016-01 Page 6 of 10 (5) If, after the hearing, the special magistrate determines that the ci , did not meet its burden of proof and the motor vehicle was not used in violation of this section,the motor vehicle shall be released forthwith to the owner or his/her agent or authorized representative without the imposition of the administrative civil penalty or final hearing costs or the costs of towing and storing the vehicle. If the owner, agent or authorized representative has already posted a bond, certified check or money order for the immediate release of his/her vehicle, the bond, certified check or money order shall be refunded to the owner, agent or authorized representative. (6) If the owner of the motor vehicle or his/her agent or authorized representative fails to attend the hearing, and the special magistrate finds that the city has complied with the notice procedures set forth herein, then such failure shall constitute a waiver of the owner's right to a hearing, and the special magistrate shall enter an order finding the owner of record of the motor vehicle civilly liable to the city for an administrative civil penalty of$500.00, plus fmal hearing costs of fifty dollars $50.00), if applicable, and requiring the continued impoundment of the vehicle if the vehicle has not already been retrieved by the owner. The owner of the motor vehicle or his/her agent or authorized representative, if he/she has not already done so, may immediately retrieve the vehicle from the towing�ty upon payment of the administrative penalty of $500.00, plus final hearing costs of fifty dollars ($50.00), if applicable, plus the accumulated costs of towing and storing the vehicle. (i) Recordins Liens; Settlements. (1) A certified copy of an order of the special magistrate imposing an administrative civil penalty and hearing; costs may be recorded in the public records of any county. Upon recording,the order shall constitute a lien against any real or personal property owned by the owner of the motor vehicle. Upon petition to the circuit court, such order may be enforced in the same manner as a court judgment by the sheriffs of this state, including levy against the real or personal property, but such order shall not be deemed to be a court judgment except for enforcement purposes. The city attorney or designee is authorized to foreclose any lien established hereby in the same manner as is provided by law for the foreclosure of other municipal liens or alternatively, as provided by law for the foreclosure of mortgages. No lien created pursuant to this chapter maw foreclosed on real property which is homesteaded under § 4, Art. X of the State Constitution. In an action to enforce an order or to foreclose on a lien as provided in this section, the city shall be entitled to recover all costs, including reasonable attorney's fees,that it incurs thereby. City of Winter Springs Ordinance No.2016-01 Page 7 of 10 (2) The cijy manager, in consultation with the police chief and city attorney is hereby authorized to enter into settlement agreements as may be appropriate to accomplish the objectives of this section. In addition, nothing herein shall prohibit the city from releasing a motor vehicle seized under the provisions of this section, if such release is determined to be in the best interests of the city. (i) Administrative civil penalty; payment. If an administrative civil penalty and hearing fee are imposed pursuant to this section, such penalty and fees shall constitute a debt due and owing the city and shall be independent of the city's return or release of the vehicle. If a cash bond, certified check or money order has been posted pursuant to this section, the bond, certified check or money order shall be applied toward payment of the penalty and hearing;fee, if applicable. (k) Return of vehicle; disposition of unclaimed vehicles. Except as provided otherwise in this section, an impounded vehicle shall be returned to its record owner, or to the person who is legally entitled to possess the vehicle, upon his/her payment of the administrative civil penalty and hearingL fee, if applicable, to the city, plus towing and storage fees, unless the vehicle had been sold or otherwise disposed of to satisfy a judgment or enforce a lien as provided by law. Motor vehicles which remain unclaimed after a final determination is made by a special magistrate or waiver of a hearing shall be disposed of pursuant to Florida Statutes and all other applicable laws. (1) Sec. 42-125. -Appeal. The owner of the motor vehicle that has been the subiect of a seizure and impoundment pursuant to this section or the city mgy appeal the final ruling and decision of the special magistrate to the circuit court within 30 days of the date of the final order being appealed. The city may charge the appellant a reasonable fee for preparation of the record for purposes of making the appeal. (m) Towing and Impoundment Services. The city manager is hereby authorized to enter into contracts with one or more towing companies to implement the provisions of this section. The contracts shall be in a form approved by the city attorney (n) Settlements. After seizure and impoundment of a vehicle pursuant to this section, regardless of whether a hearing has been held by a special magistrate, all settlements affecting, the City must be approved by the city manager. If the city manager is unavailable and a delay would adversely affect the settlement, approval may be ig ven by the police chief. Section 3. Repeal Section 12-54 of the City Code. Section 12-54 of the City Code is hereby repealed as follows(proposed deletions to City Code are indicated by stFiked4eu ): City of Winter Springs Ordinance No.2016-01 Page 8 of 10 9pp.. 13 Ad. impoundment and redemption of illegally parked OF abandoned vebieles. Member-s of the peliee depaFtment shall be vested with the authority and4t shall be their- duty to impeund aft), uneerupied vehisle parked in vielatien ef any of - - - , , ifieluding W4 not lifnited to, t4ility lines, lift sWieas, fire hy4ants —A;;-d- ;'Affiateff- ffi-eter-s, eF appears to be abandoned. Themafter-, s vehiele shall be released to the duly identified eyffier- thefeef enty upon the parnefA of shall exemise due diligenee to idefffify and notify the eA%er-. Section 4. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 5. Incorporation Into Code. This Ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph, number or letter, and any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like errors may be corrected and additions, alterations, and omissions, not affecting the construction or meaning of this Ordinance and the City Code may be freely made. Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance. Section 7. Effective Date. This Ordinance shall become effective ninety (90) days after adoption by the City Commission of the City of Winter Springs,Florida, and pursuant to the City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the 25th day of July, 2016. C LACEY, or ATTE�T- AND RENZO-LUACES City Clerk City of Winter Springs Ordinance No.2016-01 Page 9 of 10 APPROVED AS TO LEGAL FORM AND SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY. AN HONY A. GARGANESE City Attorney First Reading: June 13, 2016 Legal Ad Published: June 22, 2016 Effective Date: October 23, 2016 (per Section 7) City of Winter Springs Ordinance No.2016-01 Page 10 of 10