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Ordinance 99-3229 ORDINANCE NO. 99-3229 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,FLORIDA, CREATING MIAMI BEACH CITY CODE ARTICLE IX, ENTITLED " VEHICLE IMPOUNDMENT " OF MIAMI BEACH CITY CODE CHAPTER 106 , ENTITLED " TRAFFIC AND VEHICLES "; SETTING FORTH CIRCUMSTANCES UNDER WHICH VEHICLES MAY BE IMPOUNDED; PROVIDING FOR AN ADMINISTRATIVE CIVIL PENALTY FOR THE USE OF VEHICLES UNDER CERTAIN CIRCUMSTANCES; PROVIDING A PROCEDURE FOR REVIEW OF THE IMPOUNDMENT DECISION; PROVIDING FOR THE DISPOSITION OF UNCLAIMED VEHICLES; PROVIDING FOR SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE. WHEREAS, prostitution and drug related crimes are a threat to the health, safety and public welfare of the City of Miami Beach; and WHEREAS, motor vehicles are routinely used to facilitate the commission of prostitution and drug related crimes; and WHEREAS, the use of motor vehicles to facilitate the commission of prostitution and drug related crimes is destructive to the rights and values of the residents and visitors of the City of Miami Beach; and WHEREAS, the Mayor and City Commission of the City of Miami Beach find that it is in the best interest of the City of Miami Beach to impound motor vehicles that are used to facilitate the commission of prostitution and drug related crimes thereby protecting the health, safety and welfare of the citizens of the City of Miami Beach. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. That Article IX , entitled " Vehicle Impoundment " of Miami Beach City Code of Miami Beach City Code Chapter 106 , entitled " Traffic and Vehicles " is hereby enacted to read as follows: ARTICLE IX. VEHICLE IMPOUNDMENT Section 106-313 . Impoundment of motor vehicles: controlled substances and prostitution. (a) A motor vehicle shall be subject to seizure and impoundment whenever a law enforcement officer has probable cause to believe the vehicle : (1) Contains any controlled substance or cannabis as defined in Chapter 893, Florida Statutes: or (2) Was used in the purchase, attempt to purchase, sale, attempt to sell, delivery, attempt to deliver such controlled substance or cannabis: or (3) Was used to facilitate the commission of any act of prostitution, assignation or lewdness, as defined in Section 796.07, Florida Statutes. (b) Upon seizing the motor vehicle,the law enforcement officer shall: (1) Provide for the towing of the vehicle pursuant to the city's rotational wrecker system and all applicable towing procedures: and (2) Notify in writing the person(s) determined to be the registered owner(s) , bona fide lienholder(s) of the vehicle and any person who is found to be in control of the vehicle at the time of seizure, of the seizure and impoundment of the vehicle, as well as the right to request a preliminary hearing pursuant to section 106-314, or to pay as follows: $500.00 administrative civil penalty, plus towing and storage costs for impounded vehicles in lieu of requesting the preliminary hearing. (c) The notices given pursuant to this section shall be provided by hand delivery at the time of the seizure and impoundment of the vehicle to the person in control of the vehicle, or if neither the registered owner or the person in control of the vehicle at the time of seizure is available to receive such notice, then notice shall be provided to the registered owner and bona fide lienholder(s) by certified mail, return receipt requested, within forty- eight (48) hours of the time of impoundment excluding Saturdays, Sundays and legal holidays. (d) This section shall not apply and the vehicle shall not be seized or impounded pursuant to this section if: (1) The vehicle was reported stolen at the time that is subject to seizure and impoundment. (2) The vehicle was operating as a common carrier at the time it was subject to seizure and impoundment; (3) The vehicle is rented or leased from a company engaged in the business of renting or leasing vehicles: or (4) A law enforcement agency has expressed its intent, in writing,to institute state forfeiture proceedings on the vehicle. Section 106-314 . Hearings. Administrative civil penalty. (a) The owner of the motor vehicle, or his/her agent or authorized representative shall make a written request for a preliminary hearing within five (5) days from the date the notice is received. (1) Upon receipt of such request, the city shall hold such hearing within ten (10) days excluding Saturdays, Sundays and legal holidays, before a special master of the city. At the hearing,the city shall have the burden to show that there is probable cause to believe that the motor vehicle is subject to impoundment and continued seizure under section 106-313 . The formal rules of evidence shall not apply at the hearing. Hearsay and circumstantial evidence is admissible at the hearing. (2) If, after the hearing, the special master determines that there is probable cause to believe the motor vehicle is subject to impoundment and continued seizure , he/she shall order the continued impoundment of the vehicle unless the owner or his/her agent or authorized representative pays the city an administrative penalty of up to $500.00, as outlined in section 106-315 , or posts with the city a cash bond in the amount of up to $500.00. plus the accumulated costs of towing and storing the vehicle. If, after the hearing, there is a finding of no probable cause,the vehicle shall be released forthwith to the owner or his/her agent or authorized representative without the imposition of the administrative civil penalty and storage fees. (b) At the preliminary hearing, a final hearing may be requested by the owner or his/her agent or authorized representative. The final hearing shall be scheduled and held, unless continued by order of the special master , no later than thirty (30) days after the date the vehicle was impounded. At the final hearing, the city shall have the burden to show by a preponderance of the evidence that the vehicle was used as set forth in section 106-313 . The special master may consider at this time as a mitigating factor the existence of a registered owner, coowner or bona fide lienholder and whether such person(s) or entity/entities knew or had reason to know, after reasonable inquiry, that the vehicle was used orwas likely to be used in violation of section 796.07, Florida Statutes. If, after the hearing, a finding is made that the vehicle is subject to impoundment and seizure pursuant to section 106-313 , then the special master shall enter an order finding the owner of record of the vehicle civilly liable to the city for an administrative penalty of up to $500.00, plus towing and storage costs. I£ after the hearing, a finding is made that the city did not meet its burden of proof as set forth in this section or one of the exceptions of section 106-313 applies, the vehicle shall be returned to the owner along with any cash bond posted and such owner shall not be responsible for towing or storage charges incurred. Section 106-315 .Administrative civil penalty: payment. If an administrative civil penalty is imposed pursuant to section103-314 , such penalty 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 has been posted pursuant to section 103-314 , the bond shall be applied toward payment of the penalty. Section 106-316. Return of the vehicle: disposition of unclaimed vehicles. Except as provided otherwise , an impounded vehicle shall be returned to its registered owner, or the person who is legally entitled to possess the vehicle, upon his/her payment of the administrative civil penalty, 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. Vehicles which remain unclaimed after a final determination is made by the special master shall be disposed of in accordance with Chapter 705, Florida Statutes and all other applicable laws. Section 106-317 Appeal. The owner of the motor vehicle that has been the subject of a seizure and impoundment pursuant to sections 106-314- 106-315 or the city may appeal the final ruling and decisions of the special master of the city, to the Circuit Court of the 11th Judicial Circuit in and for Miami- Dade County, Florida, within thirty (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. SECTION 2. REPEALER All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 3. SEVERABILITY If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 4. CODIFICATION It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this Ordinance shall become and be made part of the Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or relettered to accomplish such intention, and the word " ordinance" may be changed to " sction", " article", or other appropiate word. SECTION 5. EFFECTIVE DATE This Ordinance shall take effect on the25thday of December , 1999. PASSED AND ADOPTED this 15th day of December 1999. MA OR ATTEST: APPROVED AS TO FORM&LANGUAGE ratt4 jy &FOR EXECUTION CITY CLERK 42""1st reading 12/1/99 CityAttorney 2nd reading 12/15/99 CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH,FLORIDA 33139 http:llci.miami-beach.fl.us COMMISSION MEMORANDUM NO. ( 30- 1 TO: Mayor Neisen O. Kasdin and DATE: December 15, 1999 Members of the City C•mmission FROM: Sergio Rodriguez City Manager SUBJECT: SECOND ' ' • P G - AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, CREATING MIAMI BEACH CITY CODE ARTICLE IX, ENTITLED "VEHICLE • IMPOUNDMENT" OF MIAMI BEACH CITY CODE CHAPTER 106, ENTITLED "TRAFFIC AND VEHICLES"; SETTING FORTH CIRCUMSTANCES UNDER WHICH VEHICLES MAY BE IMPOUNDED; PROVIDING FOR AN ADMINISTRATIVE CIVIL PENALTY FOR THE USE OF VEHICLES UNDER CERTAIN CIRCUMSTANCES; PROVIDING A PROCEDURE FOR REVIEW OF THE IMPOUNDMENT DECISION; PROVIDING FOR THE DISPOSITION OF UNCLAIMED VEHICLES; PROVIDING FOR SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. ADMINISTRATION RECOMMENDATION Adopt the Ordinance. ANALYSIS This Ordinance was approved by the City Commission on first reading at the Commission meeting of November 17, 1999. At the December 1, 1999 meeting, the public hearing was opened and continued to December 15, 1999. Prostitution and misdemeanor drug related crimes are a threat to the health, safety and public welfare of the residents and visitors to the City of Miami Beach. Routinely, motor vehicles are used to facilitate the commission of these crimes. It is in the best interest of the City of Miami Beach to impound the motor vehicles that are used in these crimes; thereby, protecting the health, safety and welfare of the citizens of the City of Miami Beach. This Ordinance sets forth circumstances under which motor vehicles can be impounded, provides a procedure for review of the impoundment decisions, calls for a civil administrative penalty on owners of motor vehicles that are used to facilitate prostitution and/or misdemeanor drug-related activities, and provides procedures for the disposition of unclaimed motor vehicles. AGENDA ITEM C L DATE l;—I The City Commission should adopt the Ordinance. 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