1998-13 Impound VehiclesRESOLUTION NO. 98-13
A RESOLUTION OF THE CITY OF OKEECHOBEE, FLORIDA
. AUTHORIZING AND CREATING A POLICY TO BE ENACTED WITHIN
THE CITY SETTING FORTH CIRCUMSTANCES UNDER WHICH MOTOR
VEHICLES MAY BE IMPOUNDED BY LAW ENFORCEMENT; PROVIDING
FOR ADMINISTRATIVE PENALTY FOR THE USE OF MOTOR VEHICLES
UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR A PROCEDURE
FOR REVIEW OF THE IMPOUNDMENT DECISION; PROVIDING FOR A
PROCEDURE FOR DISPOSITION OF UNCLAIMED MOTOR VEHICLES;
REPEALING ALL RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING
FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS drug related crimes, prostitution and driving under the influence of
alcohol are crimes which are a threat to the health, safety and public welfare of the citizens
of the City of Okeechobee, Florida; and
WHEREAS motor vehicles are frequently used to facilitate the commission of such
crimes; and
WHEREAS the use of motor vehicles to facilitate the commission of drug,
prostitution and driving under the influence are crimes which are destructive to the rights,
values, morals and peace of the citizens of the City of Okeechobee, Florida; and
WHEREAS the City Council of the City of Okeechobee, Florida makes a finding that
it is in the best interests of the City to impound motor vehicles that are used to facilitate the
commission of such crimes, thereby protecting and enhancing the health, safety, welfare
and moral integrity of the citizens of the City of Okeechobee;
NOW THEREFORE, it is hereby resolved and adopted by the City Council of the
City of Okeechobee, Florida that the following procedures are adopted and to be enforced
within the City of Okeechobee, Florida for the impoundment and disposition of motor
vehicles used in the commission of the aforementioned crimes:
I. ARTICLE I. VEHICLE IMPOUNDMENT
A. A motor vehicle for purposes of this resolution is defined as set forth in
Florida Statutes 316.003 (21) & (22).
B. A motor vehicle shall be subject to seizure and impoundment whenever a
law enforcement officer enforcing the laws within the City of Okeechobee,
Florida has probable cause that the vehicle:
1. Contains any controlled substance or cannabis as defined in Florida
Statutes Chapter 893. or
2.. Was used, or facilitated in the purchase, attempt to purchase, sale or
attempts to sell such controlled substance or cannabis, or
3. Was used to facilitate the commission of an act of prostitution,
assignation or lewdness as defined in Florida Statutes Section
796.07, or
4. Was in the actual physical control of a person convicted under the
provisions of Chapter 316, Florida Statutes, and which vehicle is
ordered to be impounded by the Court under the provisions of F.S.
• 316.193(6)(d)
C. Upon seizing the motor vehicle, the law enforcement officer shall:
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1. provide for the towing to the vehicle to a city -owned or maintained
controlled facility, or to a facility controlled by the City's towing agent,
and
2. notify in writing the person determined to the registered owner of the
vehicle and any person who is found to be in control of the vehicle at
the time of its seizure of the fact of the seizure, and impoundment of
the vehicle, as well as the right to request a preliminary hearing
pursuant to the provisions herein.
D. The notices given pursuant to this section shall be provided by hand delivery
at the time of the seizure and impoundment of the vehicle, or if neither the
vehicle owner or the person in control of the vehicle at the time of its seizure
is available to receive such notice, then notice shall be provided to the
vehicle owner by certified mail, return receipt requested, within forty-eight
hours of the time of impoundment excluding Saturdays, Sundays and legal
holidays.
E. This section shall not apply and the motor vehicle shall not be seized or
impounded if:
2. the possession, use or sale of the controlled substance and/or
cannabis is authorized by Chapter 893, Florida Statutes; or
3. The vehicle was stolen at the time it was subject to seizure and
impoundment; or
3. The vehicle was operating as a common carrier at the time it was
subject to seizure or impoundment; or
4. A law enforcement agency has expressed its intent in writing to
institute forfeiture proceedings against the vehicle.
ARTICLE II. HEARINGS, ADMINISTRATIVE PENALTY
A. If the registered owner of the motor vehicle, or his or her authorized agent
has made a written request for a preliminary hearing, then:
1. The City shall hold such hearing within forty-eight hours of receipt of
the written request for hearing, excluding Saturdays, Sundays and
legal holidays, before a special master of the City of Okeechobee. At
this time and subject to further direction, the City attorney is
appointed and shall serve as the special master on behalf of the City.
At the hearing, the City shall have the burden of proof that there is
probable cause to believe the motor vehicle is subject to
impoundment and continued seizure under this resolution. The formal
rules of evidence shall not apply at the hearing, and hearsay
evidence is admissible. It is the responsibility of the vehicle owner or
authorized agent to provide for an accurate record of the
proceedings.
2. If, after the hearing, the Special Master determines that there is
probable cause to believe that the vehicle is subject to impoundment
and continued seizure, he/she shall order the continued impoundment
of the vehicle unless the vehicle owner or his/her authorized agent
pays to the City an administrative civil penalty of a sum not to exceed
$500.00, plus all towing costs, or post with the City a cash bond in the
amount of the penalty assessed plus all towing and storage charges,
if any, together with the reasonably anticipated storage charges which
may accrue prior to a final hearing. No storage charges shall accrue
for the first seven (7) days the vehicle is impounded, but commencing
on the eighth (81h) day and each day thereafter, a storage fee of
$10.00 per day shall accrue on the vehicle. If, after this preliminary
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hearing, there is a finding of no probable cause, the vehicle shall be
released to the registered owner or authorized agent thereof, without
the imposition of any penalty, towing or storage charge.
3. In the event a finding of probable cause is entered, the Special
Master is permitted, in his/her sole discretion, upon mitigating
circumstances presented at the preliminary or final hearing by the
owner or authorized agent, to enter a civil penalty of less than
$500.00, but in no event shall the penalty be less than $100.00.
4. Within ten days of the date the motor vehicle is seized and
impounded, and whether or not a preliminary hearing is requested the
City shall notify by certified mail, return receipt requested, the vehicle
owner of record of the date, time and location of a final hearing to be
conducted pursuant to the provisions herein. The final hearing shall
be scheduled and held, unless continued by order of the Special
Master, no later than forty-five days after the date that the vehicle was
seized and impounded. The formal rules of evidence shall not apply
at the final hearing, and hearsay evidence may be admitted. The City
shall have the burden to show by a preponderance of the evidence
that the vehicle was used in the commission of, or to facilitate the
crimes of, possession, sale or attempt of drugs, or prostitution. If,
after the final hearing, a finding is made by the Special Master that
the vehicle is subject to impoundment and seizure pursuant to the
provisions herein, and that none of the enumerated exceptions apply,
then the Special Master of the City shall enter an order finding the
owner of the vehicle civilly liable to the City for an administrative
penalty as provided herein, plus any applicable towing or storage
charges. If, after the final hearing, a finding is made that the City did
not meet its burden of proof , or that one of the enumerated
exceptions apply, the vehicle shall be forthwith returned to the
registered owner or his/her authorized agent, together with refund of
any cash bond posted.
B. ADMINISTRATIVE PENALTY.
If an administrative penalty is imposed pursuant to the provisions herein,
such penalty shall constitute a debt due and owing to the City. The vehicles
registered owner's obligation to pay such debt to the City shall be
independent of the City's return or release of the vehicle. If a cash bond has
been posted, the bond shall be applied towards payment of the penalty
imposed.
C. RETURN OF THE VEHICLE.
The vehicle subject to this resolution shall be returned to the registered
owner thereof, or his/her authorized agent, upon occurrence.of one of the
following.-
1.
ollowing:
1. The owner elects to execute a voluntary agreement with the City
without hearing to pay the administrative penalty, which includes a
release of liability to the City.
2. The owner or agent prevails at the preliminary or final hearing on the
impoundment and there is a finding by the Special Master of
insufficient evidence to support the impoundment.
3. The owner or agent, subsequent to a preliminary or final hearing,
pays the assessed penalty to the City.
• 4. The owner appeals the final decision of the City to the Circuit Court
and prevails on appeal.
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5. The impoundment is pursuant to a court order under Chapter 316,
Florida Statutes, and such time has expired, and the owner has paid
the impoundment fees.
D. RIGHT OF APPEAL.
The owner of the motor vehicle that has been the subject of seizure and
impoundment hereunder by the City may appeal the final ruling and decision
of the Special Master of the City of Okeechobee to the Circuit Court of the
Nineteenth Judicial Circuit, in and for Okeechobee County, Florida, by filing
a written notice thereof as provided by Florida Rules of Appellate Procedure
within thirty days of rendition of such ruling. The filing fees, and burden to
maintain, transcribe and provide a record on appeal to the Court shall be the
obligation and expense of the owner of the motor vehicle.
E. UNCLAIMED VEHICLES.
Any motor vehicle that is not reclaimed by the registered owner thereof
within sixty days from the date of the final order of the Special Master of the
City of Okeechobee, which order subjects the vehicle to the administrative
penalties, becomes unclaimed evidence pursuant to Florida Statutes
705.101(6). Such unclaimed vehicle shall then be disposed of by the City of
Okeechobee pursuant to Florida Statutes Section 705.105.
ARTICLE III.
All resolutions or parts or resolutions in conflict herewith be, and the same are
hereby repealed.
ARTICLE IV.
Should any section or provision of this resolution be declared by a court of
competent jurisdiction to be invalid for any reason, such decision shall not affect the
validity of the remainder hereof as a whole or part thereof, other than the part or section
specifically declared to be invalid.
THIS RESOLUTION shall become effective immediately upon its approval by the
City Council.
INTRODUCED AND ADOPTED this 6T" day of October, 1998.
ATTEST:.
Bonnie Thomas, CMC, City Clerk
APPROVED FOR LEGAL SUFFICIENCY:
John R. Cook, City Attorney
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James'E. Kirk, Mayor