Barstow Municipal Code Ch. 9.62 Seizure and Forfeiture of Nuisance Vehicles

For the purposes of this chapter, the words, terms and phrases as defined in this section shall be construed as hereinafter set forth, unless it is apparent from the context that a different meaning is intended:

Owner means the last registered legal owner of record of the vehicle that is used to dump refuse and waste, recyclables and solid waste and/or used to solicit acts of prostitution, and/or acquire or attempt to acquire a controlled substance, as shown in records of the department of motor vehicles or similar state agency.

Recyclables is as defined in section 6.20.030.

Refuse and waste is as defined in section 6.28.030(5).

Solid waste is as defined in section 6.20.030.

Vehicle means a vehicle as defined in California Vehicle Code § 670.

(Code 1969, § 9.62.010; Ord. No. 798, § 1(part), 2004)

Any vehicle used to illegally dump refuse and waste, recyclables and solid waste in violation of sections 8.20.340(c) and 8.20.410 is declared a nuisance, and the vehicle shall be subject to seizure and forfeiture as provided in this chapter. Any person or his servant, agent, or employee who owns, leases, possesses, conducts, uses or maintains any vehicle (hereinafter referred to as "the vehicle"), used for any of the purposes or acts set forth in this section is guilty of a nuisance.

(Code 1969, § 9.62.020; Ord. No. 798, § 1(part), 2004)

Upon proof that the vehicle was used for any of the purposes set forth in section 9.62.020, the court shall declare the vehicle a nuisance and order that the vehicle be forfeited, sold and the proceeds distributed as set forth in section 9.62.120.

(Code 1969, § 9.62.030; Ord. No. 798, § 1(part), 2004)

All right, title and interest of the vehicle described in section 9.62.020 shall vest in the city upon commission of the act giving rise to the nuisance under this chapter.

(Code 1969, § 9.62.040; Ord. No. 798, § 1(part), 2004)

Vehicles subject to forfeiture under this chapter may be seized by any peace officer upon process issued by any court having jurisdiction over the vehicle. Seizure without process may be made if any of the following situations exist:

(1) The seizure is incident to an arrest or a search pursuant to a search warrant;

(2) There is probable cause to believe that the property was used in violation of this chapter.

(Code 1969, § 9.62.050; Ord. No. 798, § 1(part), 2004)

Receipts for vehicles seized pursuant to this chapter shall be delivered to any person arrested out of whose possession such vehicle was seized, in accordance with Penal Code § 1412.

(Code 1969, § 9.62.060; Ord. No. 798, § 1(part), 2004)

A vehicle seized pursuant to section 9.62.050, where appropriate, may be held for evidence. The city attorney shall institute and maintain the proceedings.

(Code 1969, § 9.62.070; Ord. No. 798, § 1(part), 2004)

(a) Except as provided in subsection (h) of this section, if the city attorney determines that the factual circumstances warrant that the vehicle used to commit the act or acts described in section 9.62.020 is subject to forfeiture, the city attorney shall file a petition for forfeiture with the superior court of the county.

(b) A petition for forfeiture under this section shall be filed as soon as practicable, but in any case within one year of the seizure of the vehicle which is subject to forfeiture.

(c) The city attorney shall cause a notice of the seizure and of the intended forfeiture proceedings, as well as notice stating that any interested party may file a verified claim, with the superior court in the county, to be served by personal delivery or by registered mail upon any person who has an interest in the vehicle. Whenever a notice is delivered pursuant to this section, it shall be accompanied by a claim form as described in section 9.62.100, with instructions for the filing and service of a claim. Notice shall also be published once in a newspaper of general circulation in the county. The city attorney shall provide notice of the proceedings under this subsection, including the following information:

(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 vehicle;

(4) The instruction for filing and servicing a claim with the city attorney pursuant to section 9.62.100 and time limits for filing a claim.

(d) An investigation shall be made by the city police department as to any claimant to a vehicle whose right, title, interest, or lien is of record in the department of motor vehicles or appropriate federal agency. If the police department finds that any person, other than the registered owner, is the legal owner thereof, and such ownership did not arise subsequent to the date and time of arrest or notification of the forfeiture proceedings or seizure of the vehicle, it shall forthwith send a notice to the legal owner at his address appearing on the records of the department of motor vehicles or appropriate federal agency.

(e) All notices shall set forth the time within which a claim of interest in the vehicle seized or subject to forfeiture is required to be filed pursuant to section 9.62.100.

(f) With respect to a vehicle used to commit the act or acts described in section 9.62.020 for which forfeiture is sought and as to which forfeiture is contested, the city shall have the burden of proving by a preponderance of the evidence that the vehicle was used in the manner described in section 9.62.020. Trial shall be before the court or jury. The presiding judge of the superior court shall assign the action brought pursuant to this chapter for trial.

(g) Upon proof by a preponderance of the evidence that the vehicle was used to commit the act or acts described in section 9.62.020, the court shall declare the vehicle a nuisance and order that the vehicle be seized, if not previously seized and held by the police department, forfeited and sold and the proceeds distributed in accordance with this chapter.

(h) If no claims are filed, the city attorney shall prepare a written declaration of forfeiture of the vehicle to the court and dispose of the vehicle in accordance with this chapter. 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 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.

(i) If a claim is timely filed, then the city attorney shall file a petition for forfeiture pursuant to this section within 30 days of the receipt of the claim.

(Code 1969, § 9.62.080; Ord. No. 798, § 1(part), 2004)

Notwithstanding the provisions of this chapter, the police department shall return a seized vehicle upon the filing of a timely claim pursuant to section 9.62.100 and upon a showing by the claimant that:

(1) The vehicle is owned by two or more persons and there is a community property interest in the vehicle by a person other than the person who used or maintained the vehicle for the purpose of committing the act or acts described in section 9.62.020, and the vehicle is the sole vehicle available to the person's immediate family;

(2) The property is owned by the employer of the person who used or maintained the vehicle for the purpose of committing the act or acts described in section 9.62.020 and the employer files and serves on the city attorney a declaration or affidavit under penalty of perjury that he had no knowledge of the subject acts; or

(3) The vehicle is owned by a rental car agency with a duly executed contract with the person who used or maintained the vehicle for the purpose of committing the act or acts described in section 9.62.020.

(Code 1969, § 9.62.090; Ord. No. 798, § 1(part), 2004)

(a) Any person claiming an interest in the vehicle seized pursuant to section 9.62.020 must, at any time within ten days from the date of the notice of seizure, file with the superior court of the county a claim, verified in accordance with Code of Civil Procedure ch. 446, stating his interest in the vehicle. An endorsed copy of the claim shall be served by the claimant on the city attorney within ten days of the filing of the claim.

(b) If a verified claim is filed, the forfeiture proceeding shall be set for hearing on a day not less than 30 days therefrom.

(c) The hearing shall be before the court or jury.

(d) The provisions of the Code of Civil Procedures shall apply to proceedings under this chapter unless otherwise inconsistent with the provisions or procedures set forth in this chapter. However, in proceedings under this chapter, there shall be no joinder of actions, coordination of actions, except for forfeiture proceedings, or cross-complaints, and the issues shall be limited strictly to the questions related to this chapter.

(Code 1969, § 9.62.100; Ord. No. 798, § 1(part), 2004)

Any person, or his servant, agent or employee who owns, possesses, leases, conducts, uses or maintains any vehicle for the purpose of committing the act or acts described in section 9.62.020, and whose vehicle has been seized in accordance with this chapter may request to execute a voluntary settlement agreement with the city for the return of the vehicle. Such request shall be made in writing to the police department or the city attorney. The minimum amount of the settlement agreement shall be sufficient to cover all of the city's reasonable administrative costs, including attorney's fees and personnel time for the seizure and forfeiture action. The actual amount shall be at the sole and absolute discretion of the city council after receiving a recommendation from the city attorney. The executed settlement agreement shall be accompanied by the appropriate settlement fee amount in the form of a money order, cash or cashier's check. All settlement funds shall be distributed as set forth in section 9.62.120.

(Code 1969, § 9.62.110; Ord. No. 798, § 1(part), 2004)

In all cases where a vehicle seized pursuant to this chapter is forfeited to the city, the vehicle shall be sold and the proceeds of the sale shall be distributed and appropriated as follows:

(1) To the bona fide or innocent purchaser, conditional vendor, mortgagee or lien holder of the vehicle, if any, up to the amount of his interest in the vehicle, when the court of city attorney declaring the forfeiture and sale of the vehicle orders a distribution to that person;

(2) To the city for all expenditures made or incurred by it in connection with the publication of the notices set forth in this chapter, and sale of the vehicle, including expenditures for any necessary repairs, storage or transportation of any vehicle seized under this chapter;

(3) The remaining funds shall be placed in the general fund, subject to appropriate accounting controls and financial audits for all deposits and expenditures;

(4) All the funds placed in the general fund pursuant to this chapter shall not supplant any funds that would, in the absence of this chapter, be made available to support the law enforcement and prosecutorial efforts of the police department.

(Code 1969, § 9.62.120; Ord. No. 798, § 1(part), 2004)

This chapter is not the exclusive regulation or penalty for the act or acts described in section 9.62.020. It supplements and is in addition to any other related sections of the Barstow Municipal Code, as well as other regulatory codes, statutes, and ordinances heretofore or hereafter enacted by the city, the state or any other legal entity or agency having jurisdiction.

(Code 1969, § 9.62.130; Ord. No. 798, § 1(part), 2004)