Victorville Municipal Code Ch. 13.05 Seizure and Forfeiture of Vehicles Used in the Commission of Illegal…

Any vehicle, including contents, used to illegally dump waste matter is declared to be a nuisance, and the vehicle and its contents shall be enjoined and abated as provided in this chapter. For purposes of this chapter, illegal dumping means to dump or cause to be dumped waste matter in or on any private or public property, including but not limited to roads, vacant land, rights-of-way, parks, and landfills, without the consent of the land owner. For purposes of this chapter "waste matter" means any substance in any form, including but not limited to garbage, refuse, trash, construction material, furniture, equipment, dirt, soil, rock, or other aggregate material, or offensive matter of any kind. Any person or his or her servant, agent or employee who owns, operates, leases, conducts or maintains any property used for any of the purposes set forth in this section is guilty of a nuisance.

(Ord. 2205 § 1 (part), 2007)

If property was used for any of the purposes set forth in Section 13.05.010, the City may commence proceedings under this chapter.

(Ord. 2205 § 1 (part), 2007)

All right, title, and interest in any property described in Section 13.30.010 shall vest in the City upon commission of the act giving rise to the nuisance under this chapter.

(Ord. 2205 § 1 (part), 2007)

(a) Vehicles subject to forfeiture under this chapter may be seized by any peace officer or City enforcement officer of the City of Victorville upon process issued by any court having jurisdiction over the property. 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; or

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

(b) Notwithstanding subsection (a) above, an immediate investigation shall be made by the Victorville Police Department as to any potential claimant to a vehicle whose right, title, interest, or lien is of record in the Department of Motor Vehicles of this or any other state or appropriate federal agency. If the Victorville Police Department finds that any person, other than the registered owner, is the legal owner, and the ownership did not arise subsequent to the date and time of arrest or seizure of the vehicle or notification of the forfeiture proceedings, it shall within two business days of the vehicle's seizure, send a notice of seizure to the legal owner at his or her address appearing on the records of the Department of Motor Vehicles of this or any other state or any appropriate federal agency.

(c) Notices. The notice of seizure shall include the following:

(1) The name, address and telephone number of the agency providing the notice;

(2) The authority and reason for the seizure;

(3) A statement that in order to receive their post-seizure hearing, the owners, or their agents, must request the hearing in person, in writing, or by telephone within ten calendar days of the date of the notice; and

(4) A statement that a report of the seizure investigation shall be sent to the District Attorney or City Attorney for review for institution of forfeiture proceedings.

(d) Hearing. The Victorville Police Department seizing the vehicle shall provide any potential claimants discovered as a result of the investigation set out in subsection (b) of this section with the opportunity for a post-seizure hearing to determine the validity of the seizure. The post-seizure hearing shall be conducted within two (2) business days of the request. The Victorville Police Department may authorize its own officer or employee to conduct the hearing as long as the hearing officer is not the same person who directed the seizure of the vehicle. Failure of either the registered legal owner, or his or her agent, to request or attend a scheduled hearing within the appropriate time frame shall be a waiver of the right to a post-seizure hearing.

(e) The scope of the post-seizure hearing shall be: whether probable cause exists that the subject vehicle was used to commit a nuisance. If the hearing officer finds that probable cause exists, the vehicle shall remain in possession of the City until final disposition of the vehicle. If the hearing officer finds that probable cause does not exist, the hearing officer may release the vehicle. The hearing officer shall also consider whether it would be inappropriate for the vehicle to remain in possession of the City under the circumstances of a particular case based upon a showing of extreme hardship.

(Ord. 2205 § 1 (part), 2007)

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

(Ord. 2205 § 1 (part), 2007)

Property seized pursuant to this chapter, where appropriate, may be held for evidence. The District Attorney or City Attorney shall institute and maintain the proceedings.

(Ord. 2205 § 1 (part), 2007)

(a) Except as provided in subdivision (f) of this section, and after any post-seizure hearing, if the District Attorney or City Attorney determines that the factual circumstances do warrant that the vehicle described in Section 13.05.010 is subject to forfeiture, the District Attorney or City Attorney shall file a petition for forfeiture with the Superior Court of San Bernardino County.

(b) A petition for forfeiture under this section shall be filed as soon as practicable, but in any case within thirty days of the ruling of the results from the post-seizure hearing, if any.

(c) The District Attorney or City Attorney shall cause the petition for forfeiture, as well as a notice stating that any interested party may file a verified Claim Opposing Forfeiture with the Superior Court of San Bernardino County, Victorville District, to be served by personal delivery or by registered mail upon any person who has an interest in the seized vehicle. Whenever a notice is delivered pursuant to this section, it shall be accompanied by a claim form as described in Section 13.05.080 and directions for the filing and service of a Claim Opposing Forfeiture.

(d) The petition for forfeiture shall set forth: (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 property; (4) the instructions for filing and serving a Claim Opposing Forfeiture with the Court and time limits for filing a claim; and (5) notice that failure to properly file and serve the Claim Opposing Forfeiture will result in forfeiture of the property.

(e) With respect to vehicles described in Section 13.05.010 for which forfeiture is sought and as to which forfeiture is contested, the City shall have the burden of proving by clear and convincing evidence that the vehicle was used as set forth in Section 13.05.010. 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.

(f) If no Claim Opposing Forfeiture is timely filed, the District Attorney or City Attorney shall prepare a written declaration of forfeiture of the vehicle to the City and dispose of the property in accordance with this chapter. A written declaration of forfeiture signed by the District Attorney or City Attorney under this section shall be deemed to provide good and sufficient title to the forfeited property. The District Attorney or City Attorney ordering forfeiture pursuant to this subsection shall provide a copy of the declaration of forfeiture to any person who received notice of the forfeiture proceedings.

(Ord. 2205 § 1 (part), 2007)

(a) Any person claiming an interest in the vehicle seized pursuant to Section 13.05.040 must, at any time within ten days from the date of the petition of forfeiture, file with the Court, a verified claim stating his or her interest in the property in order to properly oppose forfeiture.

(b) (1)

If a verified Claim Opposing Forfeiture is filed, the forfeiture proceeding shall be set for hearing as soon as is amenable to the Court.

(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, 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.

(Ord. 2205 § 1 (part), 2007)

Any person, or his or her agent or employee who owns, leases, conducts, uses or maintains any vehicle while committing any nuisance described in this chapter and whose vehicle has been seized in accordance with this section 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 City. 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 actual amount shall be at the sole and absolute discretion of the District Attorney or 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 13.05.100.

(Ord. 2205 § 1 (part), 2007)

In all cases where vehicles seized pursuant to this chapter are forfeited to the City, the vehicles shall be sold, or if cash is paid as settlement in lieu of the forfeiture of the vehicle, the proceeds of the sale shall be distributed and appropriated as follows:

(a) To the City for all expenditures, including attorneys' fees, made or incurred by it in connection with the enforcement of this chapter;

(b) To the bona fide or innocent purchaser, conditional sales vendor, lien holder of the property, if any, up to the amount of his or her interest in the property, when the Court, District Attorney or City Attorney declaring the forfeiture orders a distribution to that person;

(c) The remaining funds shall be deposited in the City's general fund.

(Ord. 2205 § 1 (part), 2007)

(a) A vehicle is not subject to forfeiture and the City shall release the vehicle to the registered owner or legal owners or to an authorized agent under any of the following circumstances:

(1) When the vehicle was stolen.

(2) When the vehicle is subject to bailment and was driven by an employee of the bailee; such as a parking lot attendant, or a garage mechanic.

(3) When 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 while committing any nuisance, and the vehicle is the sole vehicle available to the person's immediate family.

(4) The vehicle is owned by a rental car agency with a duly executed contract with the person who used or maintained the vehicle while committing any nuisance described in this chapter.

(Ord. 2205 § 1 (part), 2007)