2009-10 Amending 1998-13 Innocent OwnerRESOLUTION NO. 09-10
A RESOLUTION OF THE CITY OF OKEECHOBEE,
FLORIDA AMENDING RESOLUTION NO. 98-13;
• PROVIDING FOR UPDATING STANDARD OF REVIEW;
PROVIDING FOR ADDITIONAL NOTICE TO OWNERS;
PROVIDING FOR INNOCENT OWNER DEFENSE;
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Okeechobee, Florida enacted Resolution No. 98-13 in order to
provide for impoundment of motor vehicles that were used in unlawful activities
within the City; and
WHEREAS, the City of Okeechobee, Florida has legitimate interest in establishing punitive
measures to persons who may be violating local or state laws, which measures are
a deterrent to illegal activities; and
WHEREAS, the courts of Florida periodically review and update legal standards which
support the practice of impoundment of motor vehicles, which thereupon
necessitates a revision of local ordinance; and
WHEREAS, the District Court of Appeal, Fourth District of Florida, in which the City of
Okeechobee is geographically located, has recently amended certain provisions
concerning impoundment of motor vehicles.
NOW, THEREFORE, it is hereby resolved and adopted by the City Council of the City of
Okeechobee, Florida, presented at a duly advertised public meeting; and passed
by majority vote of the City Council; and properly executed by the Mayor or
designee, as Chief Presiding Officer for the City, that the following amendments be
made to the procedures for the impoundment and disposition of motor vehicles
used in the commission of certain crimes:
ARTICLE I. VEHICLE IMPOUNDMENT.
A. A motor vehicle for purposes of this resolution is defined as set forth in Florida
Statutes 316.003 (21) and (22).
B. A motor vehicle shall be subject to seizure and impoundment whenever a law
enforcement officer, in the course of his or her duties has detained a motor vehicle
and based upon a totality of the circumstances has formed the opinion that the
occupants of such motor vehicle by clear and convincing evidence are or have
enaaged in criminal conduct and
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
is 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).
Resolution No. 09-10 Page 1 of 4
C. Upon seizing the motor vehicle, the law enforcement officer shall:
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 48 hours of the time of impoundment excluding
Saturdays, Sundays and legal holidays. Said registered owner of the motor vehicle
shall be rovided such notice to the address listed on the most recent motor vehicle
registration on file with the Department of Motor Vehicles.
E. This section shall not apply and the motor vehicle shall not be seized or impounded
if:
1. The possession, use or sale of the controlled substance and/or cannabis is
authorized by Chapter 893 Florida Statutes; or
2. 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 48 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 clear and convincing evidence able-eatrse 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 clear and
convincing evidence pre 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
days the vehicle is impounded, but commencing on the eighth day and each
day thereafter, a storage fee of $10.00 per day shall accrue on the vehicle.
If, after this preliminary hearing, there is a finding of no clear and convincing
Resolution No. 09-10 Page 2 of 4
evidence probable , 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 clear and convincing evidence 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 10 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 45 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. 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.
• 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.
Resolution No. 09-10 Page 3 of 4
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 30 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 60
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 21st day of July, 2009.
James E. Kirk, Mayor
ATTE~'T:
Lane 0amiotea, CMC, City Clerk
APPROVED FOR LEGAL SUFFICIENCY:
John R. Cook-,-City Attorney
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