HomeMy WebLinkAboutO-13088Vop City of Miami
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< U R �O
Ordinance: 13088
File Number: 09-00891
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
Final Action Date: 9/24/2009
AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER
42/ARTICLE V OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED,
ENTITLED "POLICE/VEHICLE IMPOUNDMENT," BY PROVIDING NEW NOTICE
REQUIREMENTS; CHANGING THE BURDEN OF PROOF TO'CLEARAND
CONVINCING' FROM 'PREPONDERANCE OF THE EVIDENCE;' PROVIDING FOR
AN INNOCENT OWNER DEFENSE; MORE PARTICULARLY BY AMENDING
SECTIONS 42-120,42-121 AND 42-122; CONTAINING A SEVERABILITY CLAUSE
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, it is the intent of the City of Miami ("City") to promote, protect, and improve the health,
safety, and welfare of the citizens of the City; and
WHEREAS, the City has enacted the vehicle impoundment ordinance ("Ordinance") to ensure
responsible vehicle use within the City, thereby reducing the number of misdemeanor law violations
committed using such vehicles; and
WHEREAS, the Municipal Home Rule Powers Act and Chapter 162, Florida Statutes, as
amended, authorize the City to enforce its ordinances through code enforcement boards (Chapter
162, Part 1), and code enforcement officers (Chapter 162, Part 11), or by any other means; and
WHEREAS, pursuant to Section 162.03(2), Florida Statutes, as amended, the City has created an
alternative code enforcement system by which ordinance violations are enforced by a City designated
special master who presides over hearings, and assesses fines against violators of the Ordinance;
and
WHEREAS, in City of Miami v. Wellman, 976 So.2d 22 (Fla. 3d DCA 2008) the Third District Court
of Appeals found three constitutional flaws with Sections 42-120 through 42-125 of the Code of the
City of Miami, Florida, as amended ("City Code") in that (1) the notice requirements in City Code
Section 42-121 were inadequate because they did not require notice to be provided to all persons
whom the City knows, or with reasonable investigation should know, have a legal interest in the
subject property; (2) the appropriate standard for impoundment cases is clear and convincing
evidence; and (3) the City Code should allow for an innocent owner to be immune from loss of
property or additional monetary penalties; and
WHEREAS, this ordinance amendment corrects the flaws found by the Third District Court of
Appeals in Sections 42-120 through 42-125 of the City Code thereby rendering City Code Sections
42-120 through 42-125 fully constitutional;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted
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and incorporated as if fully set forth in this Section.
Enactment Number: 13088
Section 2. Chapter 42/Article V of the City Code, entitled "Police/Vehicle Impoundment," is
amended in the following particulars:{1}
"CHAPTER 42
POLICE
ARTICLE V. VEHICLE IMPOUNDMENT
Sec. 42-120. Definitions.
For the purposes of this article, the following words and phrases shall have the
meanings respectively ascribed to them by this section:
Owner. The term owner shall have the same meaning as provided in Section
316.003 (26) Florida Statutes, as amended.
Sec. 42-121. Impoundment of motor vehicles, controlled substances, prostitution and
illegal dumping of waste.
(b) Upon seizing the motor vehicle, the police officer shall:
(1) Provide for the towing of the vehicle pursuant to the City rotational wrecker
system and all applicable towing procedures; and
(2)
preliminary hearing. Provide written notice of such seizure and
impoundment to all persons whom the City knows, or with reasonable
investigation should know, have a legal interest in the subject property.
The written notice shall advise the persons of the following:
a. the right to request a preliminary hearing pursuant to Section 42-122
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to contest the seizure and impoundment of the vehicle;
b. the right to request a preliminary hearing pursuant to Section 42-122
to contest the seizure and impoundment of the vehicle and
immediately retrieve the vehicle from the towing facility upon the
posting with the city of a cash bond in the amount of $1,000.00,
plus towing and storage costs.; or
c. the right to waive the preliminary hearing and immediately retrieve
the vehicle from the towing facility upon the payment of the
$1,000.00 administrative penalty, plus towing and storage costs.
(c) The required notices to be given pursuant to this section shall be provided
by hand delivery at the time of the seizure and impoundment of the vehicle to
the person in control of the vehicle; and or if neither the repord
owner nor the
persfln inrG-ontrel of the v ehTC-le 7+ the time of its spi is available to rece1c'
eaGh nGtiEe,then nGti^e shall to the re^^rd owner all other persons
whom the Citv knows. or with reasonable investiaation should know. have a
legal interest in the subject property by certified mail, return receipt requested,
within 48 hours of the time of the impoundment excluding Saturdays, Sundays,
and legal holidays.
(d) This section shall not apply and the 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 or Chapter 499, Florida Statutes;
(2) The vehicle was reported stolen at the time that it is subject to seizure and
impoundment;
(3) The vehicle was operating as a common carrier at the time it was subject to
seizure and impoundment;
(4) A law enforcement agency has expressed its intent, in writing, to institute
state forfeiture proceedings on the vehicle; or
The vehicle is rented from a company engaged in the business of renting
vehicles.
Sec. 42-122. Hearings, administrative civil penalty.
(a) The owner of the motor vehicle, or his/her agent or authorized representative shall
make a written request for a preliminary hearing within five days from the date notice is
received then:
(1) The city shall hold such hearings before a special master or alternate
special master of the city within ten days of receipt of the written request,
excluding Saturdays, Sundays, and legal holidays before a peGial master
alterapr ty, a special master of the pity. 4t the hearing, the � shall have the
nate „^"' "f c�.zc�.. rc«rrc��
burden to show that there is probable Ga ice to believe that the meter vehicle is
subJeot to impoundment and Gintinued seizure -undeer se`�ticcroni 42 121. The
formal es of evidenGe shell not apply at the hearing and hearsay and
rirni imstentiiall eyidenne is admissible
(2) if , after the he;� the speGiall master or aIlt ee�-aie srpnerial rna e�
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deter vinesthomer is probable-Eause to believe that the metervehiGle is
bjeGt teimpoundment and Gentinued seizure, he/she shall order the
Gents tinned impoundment of v� ttihie vehiGle unless the owner or his/her anent er
pays�
�autth�eerriz�Tpnresentati�i heGit y an administrative niVil penalty of up to
"'ff'' outlined in si bseGtin 42 121(b)(2), or nests with the Gigs a rash
bond in the ernes int of i p to $1 ,nun nn,plus the erns rn slater! nests of towing
Av
and storing theyehiGle if, after t�eTearin�Tere is a finding of ne nrehahle
Ear ise t.hheveh+ hall he releaser! forthwith to the owner or his/her er
ra-n--vcTc�r�a�ca c�--vr-rrr�rrr cnT-vr
authorized representative without the imposition of the admrrrirrrstra tW�G.M.V4
penalty. At the hearing, the city shall have the burden to show that probable
cause exists to believe that the motor vehicle is subject to impoundment and
continued seizure under section 42-121. If the vehicle owner raises as a
defense at the preliminary hearing that he/she was unaware that the vehicle
was being used or was likely to be used in violation of this article, the city shall
establish by a preponderance of the evidence that the owner either knew, or
should have known after a reasonable inquiry, that the vehicle was being used
or was likely to be used in criminal activity.
The formal rules of evidence shall not apply at the hearing and hearsay
and circumstantial evidence is admissible.
If, after the hearing, the special master or alternate special master
determines that probable cause exists to believe that the motor vehicle is
subject to impoundment and continued seizure, he/she shall order the
continued impoundment of the vehicle and set the date for a final hearing. The
owner or his/her agent or authorized representative, if he/she has not already
done so, may immediately retrieve the vehicle from the towing facility upon the
posting with the city of a cash bond in the amount of $1,000, plus the
accumulated costs of towing and storing the vehicle, without impairing the right
to a final hearing.
If, after the hearing, there is a finding of no probable cause, the vehicle shall
be released forthwith to the owner or his/her agent or authorized representative
without the imposition of the administrative civil penalty. If the owner, agent or
authorized representative has already posted a bond for the immediate release
of his/her vehicle. the bond shall be refunded to the owner. aaent or authorized
representative.
(b) ttthe nprelimi q
heao "`1 a fid gi hearing may he requested by theownerof
his/her anent er authorized representative The final hearing shall be scheduled and
held, unless continued by order of the special master or alternate special master, no
later than 30 days after the date that the vehicle was seized and impounded. At the
final hearing, the city shall have the burden to show by a nrenenderan^e of the clear
and convincing evidence that the vehicle was used as set forth in section 42-121(a)(1)
through (5). If the owner of the vehicle asserts as a defense that he/she was not
aware that the vehicle was being used or was likely to be used in violation of this
article, the city shall establish by a preponderance of the evidence that the owner
either knew, or should have known after a reasonable inquiry, that the vehicle was
being used or was likely to be used in violation of this article. If, after the hearing, a
finding is made that the vehicle is subject to impoundment and seizure pursuant to
seGtien 42 121(d) does net apply, then the special master or alternate special master
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of the city shall enter an order finding the owner of record of the vehicle civilly liable to
the city for an administrative civil penalty of up to $1,000, as outlined in subsection 42-
121(b)(2), plus towing and storage costs. If, after the hearing, a finding is made that
the city did not meet its burden of proof as set forth in this subsection or that one of the
exceptions of section 42-121(d) applies, the vehicle shall be returned to the owner
along with any cash bond posted.
*If
Section 3. If any section, part of a section, paragraph, clause, phrase or word of this
Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected.
Section 4. This Ordinance shall become effective thirty (30) days after final reading and
adoption thereof.{2}
Footnotes:
{1} Words/and or figures stricken through shall be deleted. Underscored words and/or figures shall
be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate
omitted and unchanged material.
{2} This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date
stated herein, whichever is later.
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