San Bernardino Municipal Code Ch. 8.39 Seizure and Forfeiture of Nuisance Vehicles

The Mayor and City Council has determined that persons who operate vehicles and use them to illegally deposit, discard, dump and/or place garbage, rubbish, recyclable discards and/or green waste; bring decay; and cause nuisances to local neighborhoods where they so deposit, discard, dump and/or place such matter. The Mayor and City Council has further determined that seizing the vehicles of persons who so illegally deposit, discard, dump and/or place such garbage, rubbish, recyclable discards and/or green waste in the city will deter said nuisances from occurring if their vehicles are subject to seizure and forfeiture. The Mayor and City Council finds that there is a need to provide for the abatement of such nuisance vehicles.

(A) Any vehicle used to illegally deposit, discard, dump and/or place garbage, rubbish, recyclable discards or green waste in violation of § 8.24.070(C) is declared a nuisance vehicle, and the vehicle shall be subject to seizure and forfeiture as provided in this chapter. GARBAGE, RUBBISH, RECYCLABLE DISCARDS and GREEN WASTE shall be defined as set forth in § 8.24.060. Any person, whether as principal or agent, clerk or employee, either for himself or herself or any other person, or for any body corporate, or as an officer or agent for a corporation, or otherwise, who owns, leases, possesses, conducts, uses or maintains any vehicle (hereinafter referred to as “vehicle”), used for any of the purposes or acts set forth in this section, is guilty of a nuisance.

(B) In the event that any provision of this chapter, or any part thereof, or any application thereof to any person or circumstance, is, for any reason, held to be unconstitutional or otherwise invalid or ineffective by a court of competent jurisdiction on its face or as applied, such holding shall not affect the validity of the remaining provisions of this chapter, or any part thereof, or any application thereof to any person or circumstance or of said provision as applied to any other person or circumstance. It is declared to be the legislative intent of the city that this chapter would have been adopted had such unconstitutional, invalid or ineffective provision not been included herein.

(Ord. MC-1235, passed 10-3-2006)

All right, title and interest in any vehicle described in § 8.39.020 shall vest in the city upon commission of the act giving rise to the nuisance under this chapter.

(A) 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.

(B) (1) Under this chapter, seizure without process may be made if any of the following situations exist:

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

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

(2) All seized vehicles shall be towed pursuant to this section.

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 Cal. Penal Code, § 1412.

Property seized pursuant to § 8.39.040, where appropriate, may be held for evidence. The City Attorney shall institute and maintain the proceedings pursuant to § 8.39.070.

(A) Except as provided in division (H) below or § 8.39.100, if the City Attorney determines that the factual circumstances warrant that the vehicle described in § 8.39.020 is subject for 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 six months of the seizure of the vehicle which is subject to forfeiture.

(C) Within 30 days from the seizure, 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 § 8.39.090 and directions for the filing and service of a claim. Notice shall also be published once in a newspaper of general circulation in the county.

(2) The City Attorney shall provide notice of the proceedings under this section, including the following information:

(a) A description of the vehicle;

(b) The date and place of seizure;

(c) The violation of law alleged with respect to forfeiture of the property; and

(d) The instruction for filing and serving a claim with the City Attorney pursuant to § 8.39.090 and time limits for filing a claim.

(D) An investigation shall be made by the City Police 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 City 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 immediately send a notice to the legal owner at his or her 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 § 8.39.090.

(F) With respect to a vehicle described in § 8.39.020 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 as set forth in § 8.39.020. Trial shall be before the court or by 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 for any of the purposes set forth in § 8.39.020, 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 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.

Notwithstanding the provisions of this chapter, the City Police Department shall return a seized vehicle upon the filing of a timely claim pursuant to § 8.39.090 and upon a showing by the claimant that:

(A) 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 to illegally deposit, discard, dump and/or place garbage, rubbish, recyclable discards and/or green waste, 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 illegally depositing, discarding, dumping and/or placing garbage, rubbish, recyclable discards and/or green waste, and the employer files and serves on the City Attorney a declaration or affidavit under penalty of perjury that he or she had no knowledge of said illegal activity; or

(C) The vehicle is owned by a rental car agency with a duly executed contract with the person who used or maintained the vehicle for illegally depositing, discarding, dumping and/or placing said garbage, rubbish, recyclable discards and/or green waste.

Any person claiming an interest in a vehicle seized pursuant to § 8.39.020 must, at any time within ten days from the date of the notice of seizure, file with the Superior Court of the State of California, County of San Bernardino, San Bernardino District, a claim, verified in accordance with the Cal. Code of Civil Procedure, § 446, 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 days of the filing of the claim.

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

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

(C) The provisions of the California 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, 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.

(A) Any person, or his or her servant, agent or employee, who owns, leases, conducts, uses or maintains any vehicle for illegally depositing, discarding, dumping and/or placing garbage, rubbish, recyclable discards and/or green waste, 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. However, nothing in this section shall require the city to follow these alternative settlement procedures.

(B) Such request shall be made in writing to the City Attorney. The minimum amount of the settlement agreement shall be sufficient to cover all of the city’s reasonable administrative costs, including attorneys’ fees and personnel time for the seizure and forfeiture action. The costs, salary and expenses of the City Attorney and members of the City Attorney’s office in enforcing this chapter on behalf of the city shall be considered as “attorneys’ fees” for the purposes of this section. 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 § 8.39.110(B) and (C).

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

(A) To the bona fide or innocent purchaser, conditional vendor, mortgagee 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 declaring the forfeiture and sale of the vehicle 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 placed in the General Fund of the city, subject to appropriate accounting controls and financial audits for all deposits and expenditures; and

(D) 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 or the City Attorney’s office.

This chapter is not the exclusive regulation or penalty for the illegal depositing, discarding, dumping and/or placing of garbage, rubbish, recyclable discards and/or green waste. Nothing in this chapter shall be deemed to prevent the City Attorney from commencing a civil action to abate a nuisance in addition to, alternatively to or in conjunction with the proceeding set forth in this chapter, nor shall anything in this chapter be deemed to prevent the city from commencing a criminal action with respect to the nuisance in addition to, alternatively to or in conjunction with the proceedings set forth in this chapter, or other ordinance, statute or state law.

If any provision of this chapter is determined by any court of competent jurisdiction, or by any federal or state agency having jurisdiction over its subject matter, to be invalid and in conflict with any paramount federal or state law or regulation now or hereafter in effect, or is determined by that court or agency to require modification in order to conform to the requirements of that paramount law or regulation, then that provision will be deemed a separate, distinct and independent part of this chapter, and such determination will not affect the validity and enforceability of any other provisions. If that paramount federal or state law or regulation is subsequently repealed or amended so that the provision of this chapter determined to be invalid or subject to modification is no longer in conflict with that law or regulation, then that provision will again become effective and will thereafter be binding.

(Ord. MC-1177, passed 8-17-2004)