El Monte Municipal Code Ch. 5.58 Seizure and Forfeiture of Vehicles Used to Solicit Prostitution or Used…

As used in this chapter:

"City" means the city of El Monte.

"Controlled substance" means a drug, substance or immediate precursor as defined in California Health and Safety Code Section 11007, or any controlled substance analog as defined in California Health and Safety Code Section 11401.

"Department" means the Police Department of the city of El Monte.

"Owner" means the last registered and legal owner of record of the vehicle that is used to solicit prostitution and/or acquire or attempt to acquire a controlled substance, as shown on records of the Department of Motor Vehicles or similar state entity.

"Peace Officer" means any El Monte Police Officer.

"Solicit or soliciting controlled substances" means the solicitation of controlled substances as these are defined in this section.

"Solicit or soliciting prostitution" means the solicitation of prostitution as defined in California Penal Code Section 647(b).

"Vehicle" means a vehicle as defined in California Vehicle Code Section 670.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

Any person, or his or her servant, agent or employee who owns, leases, conducts, uses or maintains any vehicle for the purpose of soliciting prostitution and/or acquiring or attempting to acquire any controlled substance shall be guilty of committing a nuisance. Any vehicle used to solicit an act of prostitution and/or to acquire or attempt to acquire any controlled substance is also declared to be a nuisance. Such vehicle shall be subject to seizure and forfeiture as provided in this chapter. Declaration of this nuisance is made according to the authority of Government Code Section 38771.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

Subject to the requirements of Section 5.58.010, and except as further limited by this chapter, all right, title, and interest in any vehicle used to solicit an act of prostitution and/or to acquire or attempt to acquire any controlled substance shall vest in the city upon commission of the act giving rise to forfeiture.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

A. A vehicle subject to forfeiture under this chapter may be seized by any Peace Officer of the city 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 under a search warrant;

2. There is probable cause to believe that the vehicle was used or is intended to be used in violation of this chapter;

3. There is probable cause to believe that the vehicle is directly or indirectly dangerous to the health or safety of persons or property.

B. The city may notify the Franchise Tax Board of a vehicle seized where there is reasonable cause to believe that the value of the seized vehicle exceeds five thousand dollars ($5,000).

C. Receipts for vehicles seized pursuant to this chapter shall be delivered to any person out of whose possession such vehicle was seized, in accordance with California Penal Code Section 1412. There shall be a presumption affecting the burden of proof that a person to whom a receipt was issued is the owner thereof. This presumption may, however, be rebutted at the forfeiture hearing specified in Section 5.58.070.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

A vehicle seized pursuant to this chapter, where appropriate, may be held for evidence.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

Within fifteen (15) days after seizure, if the Peace Officer does not hold the vehicle for evidence or if the department does not refer the matter in writing for institution of forfeiture proceedings by the City Attorney, the Peace Officer or department shall comply with any notice to withhold issued to the city with respect to the vehicle by the Franchise Tax Board. If no notice to withhold has been issued with respect to the vehicle by the Franchise Tax Board, the Peace Officer or the department shall return the vehicle to the registered owner. Alternatively, the city may return the vehicle to the registered lienholder upon the lienholder's filing of a hold harmless agreement on behalf of the city. Said vehicle shall not be released unless the hold harmless agreement is accepted by the department and the City Attorney.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

A. Except as provided in subsection G of this section, if the City Attorney determines that factual circumstances warrant that the vehicle is subject to forfeiture, and are not automatically made forfeitable by another provision of this chapter, the City Attorney shall file a petition for forfeiture with the Superior Court of Los Angeles County.

B. A petition for forfeiture under this subsection shall be filed as soon as practicable, but in any case a petition must be filed within one year of the seizure of the vehicle which is subject to forfeiture.

C. Physical seizure of the vehicle shall not be necessary in order to have the vehicle alleged to be forfeitable in a petition pursuant to this section. The City Attorney may seek protective orders for any such vehicle.

D. The City Attorney shall cause notice of the seizure and of the intended forfeiture proceedings, as well as a notice stating that any interested party may file a verified claim with the Superior Court of Los Angeles 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 5.58.090, as well as directions for the filing and service of a claim. Notice shall also be published once in a newspaper of general circulation in Los Angeles County.

E. An investigation shall be made by the department as to any claimant to the vehicle whose right, title, interest, or lien is of record in the Department of Motor Vehicles or appropriate federal agency. If the department finds that a person, other than the registered owner, is the legal owner of the vehicle, 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 or her address appearing on the records of the Department of Motor Vehicles or appropriate state agency.

F. All notices shall set forth the time within which a claim of interest in the vehicle seized or that is subject to forfeiture is required to be filed pursuant to Section 5.58.090.

G. The City Attorney may, pursuant to this subsection, order the forfeiture of the vehicle seized pursuant to this chapter. The City Attorney shall provide notice of the proceedings under this subsection, including:

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 instructions for filing and serving a claim with the City Attorney pursuant to Section 5.58.090 and time limits for filing a claim.

H. If no claims are timely filed, the City Attorney shall prepare a written declaration of forfeiture of the vehicle to the city 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 within fifteen (15) days, then the City Attorney shall file a petition for forfeiture pursuant to this section within thirty (30) days of receipt of the claim.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

Notwithstanding the provisions of this chapter, the department shall return a seized vehicle upon the filing of a timely claim pursuant to Section 5.58.090 and upon a showing by the claimant that:

A. The vehicle is owned by two (2) 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 soliciting prostitution and/or acquiring or attempting to acquire any controlled substance, and the vehicle is the sole vehicle available to the person's immediate family;

B. The vehicle is owned by the employer of the person who used or maintained the vehicle for the purpose of soliciting prostitution and/or acquiring or attempting to acquire any controlled substance; or

C. The vehicle is owed by a rental car agency with a duly executed contract with the person who used or maintained the vehicle for the purpose of soliciting prostitution and/or acquiring or attempting to acquire any controlled substance.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

A. Any person claiming an interest in the vehicle seized must at any time within fifteen (15) days from the date of the notice of seizure, file with the Superior Court of Los Angeles County a claim, verified in accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the vehicle. An endorsed copy of the claim shall be served by the claimant on the City Attorney within ten (10) days of the filing of the claim.

B. Any claimant who timely files a claim may file a written request for a post-seizure probable cause hearing using the form provided by the department.

1. If the department does not receive a request for a post-seizure probable cause hearing within thirty (30) days from the date that the notice of seizure is published in a newspaper of general circulation, any rights to request such hearing will be deemed waived, and the requirements for post-seizure probable cause hearing will be satisfied.

2. If a request for a post-seizure probable cause hearing is timely filed within thirty (30) days, then the department shall provide such a hearing as provided for in subsection C of this section.

C. A post-seizure probable cause hearing will be conducted by the department, before a neutral decision-maker, within twelve (12) business days following the receipt of the first request for a post-seizure probable cause hearing filed with the department in accordance with this section. For purpose of this section, "business days" shall be defined as Monday through Thursday, excluding state or federal holidays. If there are multiple claimants, the department shall not be required to conduct multiple post-seizure probable cause hearings for each seized vehicle. A finding of probable cause for seizure of the vehicle is conclusive as to all claimants.

1. The department may authorize a hearing officer to conduct the post-seizure probable cause hearing. The authorized hearing officer must not have participated in the seizure of the vehicle.

2. At the post-seizure probable cause hearing, the department will be required to show that probable cause existed for the initial seizure of the vehicle pursuant to this chapter.

3. If the post-seizure probable cause hearing officer determines that probable cause did not exist for the seizure, the vehicle shall be released as soon as practicable to the appropriate claimant without imposing any towing and/or storage charges. The City Attorney and each claimant shall be notified of the release.

4. If the post-seizure probable cause hearing officer determines that probable cause existed for the seizure, then forfeiture proceedings against the vehicle will continue as provided in Section 5.58.100 et seq.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

With the respect to a vehicle 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 for the solicitation of prostitution and/or to attempt to solicit or solicit drug sales as these crimes are defined in this chapter. Trial shall be before the court or jury. The presiding judge of the Superior Court shall assign actions brought pursuant to this chapter for trial.

A. Court proceedings shall be in accordance with the following:

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

2. The hearing shall be before the court;

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

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

Upon proof that a vehicle was used for any of the purposes set forth in Section 5.58.020, the court shall declare such vehicle a nuisance and order that the vehicle be seized, forfeited and sold and the proceeds distributed in accordance with this chapter.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

Any person, or his or her servant, agent or employee who owns, leases, conducts, uses or maintains any vehicle for the purpose of soliciting prostitution and/or acquiring or attempting to acquire any controlled substance 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 department. The settlement amount incorporated in 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 and shall be set by resolution. The executed settlement agreement shall be accompanied by the appropriate settlement fee amount in the form of a money order or cashier's check.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

In all cases where a vehicle is seized and forfeited to the city, the vehicle shall be sold, or if cash is paid as settlement in lieu of forfeiture of the vehicle, and the proceeds shall be distributed and appropriated as follows:

A. To the bona fide or innocent purchaser, conditional sales vender, mortgage or lien holder of the vehicle, if any, up to the amount of his or her interest in the vehicle, when the court or City Attorney declares the forfeiture and orders a distribution to that person.

B. 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.

C. The remaining funds shall be distributed to the department to cover the costs of implementing the program. Such funds shall be placed in a separate account titled "The Vehicle Forfeiture Account." The Vehicle Forfeiture Account shall be subject to appropriate accounting controls and financial audits for all deposits and expenditures.

D. All the funds distributed to the department pursuant to subsection C of this section 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 department.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)

This chapter is not the exclusive regulation or penalty for the solicitation of prostitution and/or the acquisition or attempt to acquire controlled substances. It supplements and is in addition to the other regulatory codes, statutes, and ordinances heretofore or hereafter enacted by the city, the state or any other legal entity or agency having jurisdiction.

(Ord. 2681 § 2 (part), 2006: Ord. 2580 § 1 (part), 2003)