(A) A motor vehicle shall be subject to seizure and impoundment whenever a police officer has probable cause to believe that the vehicle:
(1) Contains any controlled substance or cannabis as defined in Fla. Stat. Chapter 893; or
(2) Was used in the purchase, attempt to purchase, sale, or attempt to sell such controlled substance or cannabis; or
(3) Was used to facilitate the commission of an act of prostitution assignation, or lewdness as defined in and pursuant to Fla. Stat.§ 796.07; or
(4) Was used in violation of Fla. Stat. §§ 316.2074(3) or 316.2074(5).
(B) Upon seizing the motor vehicle, the police officer shall:
(1) Provide for the towing of the vehicle to a City-owned or City-controlled facility or to a facility controlled by the City's towing agent; and
(2) Provide written notices by hand delivery to the owner of the vehicle or the person in control of the vehicle that the vehicle has been seized and impounded by the City of Palm Bay Police Department. If the vehicle owner is unavailable to receive such notice, then notice shall be provided within five (5) working days from the date of impoundment excluding Saturdays, Sundays, and legal holidays.
(3) Advise the owner of the vehicle or person in control of the vehicle in such notice of his/her right to request a preliminary hearing pursuant to division (D) below.
(C) This section shall not apply and the vehicle shall not be seized or impounded under this section if:
(1) The possession, use, or sale of the controlled substance and/or cannabis is authorized by Fla. Stat. Chapter 893 or Chapter 499; or
(2) The vehicle was stolen at the time that it would otherwise have been subject to seizure and impoundment; or
(3) The vehicle was operating as a common carrier at the time it would otherwise have been subject to seizure and impoundment; or
(4) The vehicle was seized pursuant to the Florida Contraband Forfeiture Act.
(D) Hearings, administrative fee.
(1) In order to be entitled to a preliminary hearing, the owner of the vehicle or his/her agent/ representative must submit a written request for a preliminary hearing to the Police Chief or his/her designee within five (5) business days of receipt of the written notice. If the City does not receive such a request within the specified time period, then this shall constitute a waiver of such hearing by the owner.
(2) Upon receipt of the written request from the vehicle owner or his/her agent/representative for a preliminary hearing, the Police Chief or his/her designee shall schedule the hearing within five (5) days, excluding Saturdays, Sundays, and legal holidays, before a Special Magistrate of the City of Palm Bay. The owner shall be given written notice of the date, time, and location of the hearing, and this notice shall be delivered to the address provided by the owner.
(3) At the hearing, the City shall have the burden to show that there is probable cause to believe that the motor vehicle is subject to impoundment and continued seizure. The formal rules of evidence shall not apply at the hearing and hearsay evidence, including the police report, is admissible.
(4) At the hearing, if the Special Magistrate determines that there is probable cause to believe that the motor vehicle is subject to impoundment and continued seizure, he/she shall order the continued impoundment of the vehicle unless the vehicle owner or his/her agent or authorized representative pays the City an administrative fee of one hundred dollars ($100.00) plus the towing and storage costs, or posts with the City a bond in the form of a money order or certified check in the amount of one hundred dollars ($100.00) plus the accumulated costs of towing and storing the vehicle. If the Special Magistrate determines that there is probable cause to believe that the motor vehicle is subject to impoundment and continued seizure, the City shall schedule a final hearing unless the administrative fee plus any towing and storage costs as determined by the Special Magistrate have been paid. If after the preliminary 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 penalties or fees.
(E) Final hearings.
(1) In the event that a preliminary hearing is not requested within the five (5) day period as set forth above, or if the Special Magistrate determines at a preliminary hearing that there is probable cause to believe that the motor vehicle is subject to impoundment and continued seizure and the administrative fee plus any towing and storage costs as determined by the Special Magistrate have not been paid, the City shall schedule a final hearing. The City shall notify by certified mail, return receipt requested, the vehicle owner of record of the date, time, and location of a final hearing to be conducted pursuant to this section. The final hearing shall be scheduled and held, unless waived by the vehicle owner or continued by order of the Special Magistrate, no later than forty-five (45) days after the date that the vehicle was seized and impounded. The formal rules of evidence will not apply at the final hearing.
(2) The City shall have the burden to show by a preponderance of the evidence that:
(a) The vehicle was seized and impounded pursuant to division (A) above; and
(b) The owner of the vehicle 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 division (A) above.
(3) If an owner fails to attend the final hearing, and the Special Magistrate finds that the City has complied with the notice procedures as set forth herein, then such failure to attend shall constitute a waiver of the owner's right to a final hearing and it shall be deemed admitted that the seized vehicle was used in violation of division (A) above.
(4) At the hearing, if the Special Magistrate finds that the vehicle is subject to impoundment and seizure pursuant to division (A) above, and that none of the exceptions set forth in division (C) above apply, then the Special Magistrate shall enter an Order finding the owner of record of the vehicle civilly liable to the city for an administrative fee not to exceed one hundred dollars ($100.00), plus towing and storage costs. The seized vehicle shall remain impounded until the administrative penalty plus any towing or storage costs are satisfied.
(5) If the Special Magistrate finds that the City did not meet its burden of proof or that one (1) of the exceptions of division (C) above applies, the vehicle shall be returned to the owner forthwith along with any bond posted.
(F) The City Attorney, or his designee, is hereby authorized to enter into settlement agreements as may be appropriate to accomplish the objectives of this section. In addition, nothing herein shall prohibit the City from releasing a motor vehicle seized under the provisions of this section, if such release is determined to be in the best interests of the City. Nothing herein shall be construed to prohibit the City from enforcing the provisions of this section against a vehicle initially seized pursuant to the Florida Contraband Forfeiture Act (but not both) if in the best interest of the City.
(G) Unclaimed seized vehicles. Unclaimed seized vehicles may be subject to disposal pursuant to Fla. Stat. Chapter 705.
(H) The owner of the vehicle which was seized and impounded may appeal a ruling or order of the Special Magistrate by proceedings in the Circuit Court for Brevard County in accordance with Rule 9.190 of the Florida Rules of Appellate Procedure. An appeal shall be filed within thirty (30) days of the execution of the order to be appealed. The nature of the appeal shall be from a final administrative order.
(Ord. 2008-38, passed 5-15-08)