cover
TO: Mayor Thomas J. Weisner
FROM: Blanca Dominguez, Asst. Corp. Counsel
DATE: Feb. 12, 2015
SUBJECT:
Amendment to the City of Aurora's Vehicle Seizure and Impoundment Ordinance found in Ch. 29, Articles II and II, Sections 29-20.1 and 29-48.
PURPOSE:
To amend the City's Vehicle Seizure and Impoundment Ordinance provision to avoid duplication and to more clearly set forth offenses and procedures governing impounded vechicles.
BACKGROUND:
The City's Vehicle Seizure and Impoundment Ordinance, as set forth in Sections 29.20.1 and 29-48 were initially enacted in 1992. The last amendment to these sections occurred in 2009.
In 2012, with subsequent amendments in 2013 and 2015, the General Assembly promulgated Section 11-208.7 of the Vehicle Code, allowing any county or municipality to provide, by ordinance, procedures for the release of properly impounded vehicles and for the imposition of an administrative fee of $500.00.
DISCUSSION:
Deleting Section 29-20.1 and amending Section 29-48 will serve to clarify what offenses can result in impoundment. In this way, law enforcement officers tasked with the enforcement of this ordinance will have a clearer understanding of what constitutes an eligible offense, resulting in a more effective manner of enforcing the ordinance.
Additionally, amending the City's ordinance to incorporate provisions set forth in Section 11-208.7 of the Vehicle Code will further the City's goal to more regulating the use of a vehicle in the commission of a listed offense. Since the State law closely resembles the City's current ordinance, only minimal revisions are required. By way of example, the State law requires notification of impoundment and right to a hearing be sent to a lienholder as well as owner of record and lessee.
IMPACT STATEMENT:
By revising the City's ordinance in the manner stated above, the City will further its objective of more clearly setting forth the offenses and procedures applicable to impounded vehicles to ensure an efficient manner of controlling the operation or use of a vehicle in the commission of, or in the attempt to commit certain enumerated violations. A proper and concise understanding of the offenses, which can result in seizure and impoundment of a vehicle, will also have the added benefit of serving as a deterrent to future violations.
RECOMMENDATIONS:
This matter be referred for consideration to the Government Operations Committee on February 24, 2015."
cc: Alderman Hart-Burns, Chairman
Alderman Johnson
Alderman Mesiacos
Alderman Mervine, Alternate
CITY OF AURORA, ILLINOIS
ORDINANCE NO. _________
DATE OF PASSAGE ________________
title
An Ordinance Deleting Chapter 29, Art. II, Section 29-20.1 entitled "Vehicle Seizure and Impoundment" and Amending Chapter 29, Art.
body
WHEREAS, the City of Aurora has a population of more than 25,000 persons and is, therefore, a home rule unit under subsection (a) of Section 6 of Article VII of the Illinois Constitution of 1970; and
WHEREAS, subject to said Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs for the protection of the public health, safety, morals, and welfare; and
WHEREAS, the City deems it necessary and appropriate to amend the provisions regarding vehicle seizure and impoundment to more clearly set out impoundable offenses in an effort to more effectively enforce the provision and to provide a further deterrent to such violations in the City of Aurora.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Aurora, Illinois, as follows: by the City Council of the City of Aurora, Illinois, that Chapter29, Section 29-20.1 shall be deleted and Section 29-48 entitled “Vehicle seizure and impoundment” of the City of Aurora Code of Ordinances is hereby amended as follows:
Section One: That Chapter 29, Section 29-20.1 entitled “Vehicle seizure and impoundment” shall be stricken in its entirety.
Section Two: That Chapter 29, Section 29-48 entitled “Vehicle Seizure and impoundment” shall be amended as follows:
(a) For purposes of this section and in accordance with Section 11-208.7 of the Illinois Vehicle Code (625 ILCS 5/11-208.7), the following terms shall be defined as follows:
“Hearing Officer” shall mean a licensed attorney, who has been licensed in the State of Illinois for a minimum of three (3) years, who is not an officer or employee of the city.
“Lessee” shall mean a person operating a motor vehicle pursuant to a lease or any other such written document vesting exclusive possession, use, control and responsibility of the motor vehicle during the specified time period.
“Lienholder of Record” shall mean a person holding a security interest in a vehicle.
“Owner of Record” shall mean the registered owner or record titleholder of a motor vehicle as registered with the Secretary of State of the State of Illinois.
(b) Police officers shall have the right to seize and impound a motor vehicle, operated used or in the physical control of any person with the permission, express or implied, of the owner of record, on any public street within the City of Aurora that is used in the commission or furtherance of violation of the following offenses, including any subsequent amendments to such provisions:
(1) operation or use of a motor vehicle in the commission of, or in the attempt to commit, an offense for which a motor vehicle may be seized and forfeited pursuant to Section 36-1 of the Illinois Criminal Code of 2012 (“Criminal Code”), 720 ILCS 5/1-1, et seq.;
(2) driving under the influence of alcohol, another drug or drugs, an intoxicating compound or compounds, or any combination thereof, in violation of Section 11- 501 of the Illinois Vehicle Code (“Vehicle Code”);
(3) operation or use of a motor vehicle in the commission of, or in the attempt to commit an offense in violation of the Cannabis Control Act, 720 ILCS 550/1, et seq.;
(4) operation or use of a motor vehicle in the commission of, or in the attempt to commit, an offense in violation of the Illinois Controlled Substances Act, 720 ILCS 570/100, et seq.;
(5) operation or use of a motor vehicle in the commission of, or in the attempt to commit an offense in violation of Section 24-1(unlawful use of weapons), 24-1.5 (reckless discharge of a firearm) or 24-3.1 (unlawful possession of firearms and firearm ammunition) of the Criminal Code of 2012;
(6) driving while a driver’s license, permit or privilege to operate a motor vehicle is suspended or revoked pursuant to Section 6-303 of the Vehicle Code; except that vehicles shall not be subjected to seizure or impoundment if the suspension is for unpaid citation (parking or moving) or due to failure to comply with emission testing;
(7) operation or use of a motor vehicle while soliciting, possessing, or attempting to solicit or possess cannabis or a controlled substance, as defined by the Cannabis Control Act or the Illinois Controlled Substances Act;
(8) operation or use of a motor vehicle with an expired driver’s license, in violation of Section 6-101 of the Vehicle Code, if the driver’s license has been expired more than one year;
(9) operation or use of a motor vehicle without ever having been issued a driver’s license or permit, in violation of Section 6-101 of the Vehicle Code, or operating a motor vehicle without ever having been issued a driver’s license or permit due to a person’s age;
(10) operation or use of a motor vehicle by a person against whom a warrant has been issued by a circuit court clerk in Illinois for failing to answer charges that the driver violated Section 6-101 (no valid driver’s license), 6-303 (suspended or revoked license), or 11-501 (driving under the influence) of the Vehicle Code;
(11) operation or use of a motor vehicle in the commission of, or in the attempt to commit, an offense in violation of Article 16 (theft and other related offenses) of the Criminal Code of 2012;
(12) Paragraphs 9-3.3 (drug-induced homicide), 11-14 (prostitution), 11-14.1 (solicitation of a sex act), 11-14.3 (promoting prostitution); 11-14.4 (promoting juvenile prostitution), 11-18 (patronizing a prostitute), 11-18.1 (patronizing a minor engaged in prostitution), 12-2 (aggravated assault), 12-4 (aggravated battery), 20-1.1 (aggravated arson), 24-2.1 (unlawful use of firearm projectiles), 24-3.3 (unlawful sale/delivery of firearms on premises of any school), or 33A-2 (armed violence) of the Criminal Code of 2012 (720 ILCS 5/9-3.3, 5/11-14, 5/11-14.1, 5/11-14.3, 5/11-14.4, 5/11- 18, 5/11-18.1, 5/12-2, 5/12-4, 5/20-1.1, 5/24-2.1,5/24-3.3 or 5/33A-2);
(13) Paragraph 3.5 of the Drug Paraphernalia Control Act (720 ILCS 600/3.5);
(14) Paragraph 6-101(d) through (e) (no valid driver's license) of the Illinois Vehicle Code (625 ILCS 5/6-101(d) through (e)) in conjunction with a violation of Paragraph 3-707 (operation of uninsured vehicle) and 7-601 (required liability insurance) of the Illinois Vehicle Code (625 ILCS 5/3- 707, 7-601) or a similar provision of this code:
(15) 625 ILCS 5/3-702 (registration revoked, cancelled or suspended):
(16) 625 ILCS 5/11-401 (motor vehicle accident involving death or personal injuries);
(17) 625 ILCS 5/11-503 (reckless driving/aggravated reckless driving), including without limitation, (i) while the vehicle is part of a funeral procession; or (ii) in a manner that interferes with a funeral procession;
(18) 625 ILCS 5/11-506 (street racing/aggravated street racing);
(19) The use of a motor vehicle as part of the commission of a felony not otherwise expressly listed herein shall be subject to seizure and impoundment under this section;
(20) operation or use of a motor vehicle in the commission of, or in an attempt to commit any violation set forth in 625 ILCS 5/11-208.7 and/or any misdemeanor or felony offense in Section 36-1 of the Criminal Code of 2012 which may not otherwise referenced herein or may be subsequently added via amendment.
(c) The owner of record of a vehicle that has been seized and impounded pursuant to this section shall be liable to the city for an administrative fee of five hundred dollars ($500.00) in addition to fees for the towing and storage of the vehicle as charged by the towing company. The administrative fee of five hundred dollars ($500.00) shall be paid to the City of Aurora. Towing and/or storage fees shall be collected by and paid to the person, firm, or entity that tows and stores the impounded vehicle.
(d) Whenever a police officer has probable cause to believe that a vehicle is subject to seizure and impoundment, pursuant to this section, the police officer shall provide for the towing of the vehicle by a towing company licensed under Chapter 46, Art. I of the City’s Code of Ordinances. When the vehicle is towed, the police officer shall notify, or make a reasonable attempt to notify, the owner of record, lessee, or person identifying himself or herself as the owner of record or lessee of vehicle, or any the person who is found to be in control of the vehicle at the time of the alleged violation, if there is such a person, of the fact of the seizure and of the vehicle owner of record's or lessee’s right to request an administrative hearing to be conducted under this section. Said vehicle shall be impounded pending the completion of the hearing provided for in subsection (e) herein, unless the owner of record or lessee of the vehicle posts, with the city, a cash bond in the amount of five hundred dollars ($500.00) plus fees for the towing and storage of the vehicle.
(e) Within ten (10) days after a vehicle is seized and impounded pursuant to this section, the city shall notify, by mailing a notice via first class mail or certified mail, return receipt requested, to the owner of record or lessee and any lienholder of record of the date, time and location of a hearing that will be conducted pursuant to this section. Notice served under this section is effective upon mailing of the written notice to address of the owner of record, lessee and any lienholder of record, as contained in registration records of the Illinois Secretary of State. The hearing shall be conducted no later than forty-five (45) days after the vehicle was seized. All interested persons shall be given a reasonable opportunity to be heard at the hearing. The formal rules of evidence will not apply at the hearing and hearsay evidence shall be admissible.
At the conclusion of the hearing, the hearing officer shall issue a written decision either sustaining or overruling the seizure and impoundment of the vehicle. If, after the hearing, the hearing officer determines by a preponderance of evidence that the vehicle, operated with the permission, express or implied, of the owner, was used in the commission of any of the violations set forth in this section, the hearing officer shall enter an order requiring the vehicle to continue to be impounded until the owner of record, lessee, or lienholder of record pays the administrative fee of five hundred dollars ($500.00) plus payment of fees for the towing and storage of the vehicle. The administrative fee shall be a debt due and owing the city. However, if a cash bond was posted, the bond shall be forfeited to the city. If the hearing officer overturns the basis for the impoundment of the vehicle, he or she shall order the return of the vehicle and any cash bond that may have been posted.
(f) Unless the hearing officer overturns the basis for the vehicle impoundment, no vehicle shall be released to the owner, lessee or lienholder of record until all administrative fees and towing and storage charges are paid.
(g) Pursuant to Chapter 4, Article II of the Illinois Vehicle Code, entitled “Abandoned, Lost, Stolen or Unclaimed Vehicles, 625 ILCS 5/4-201, et seq.,” which is adopted and incorporated herein, any motor vehicle that is not reclaimed within thirty-five (35) days after the entry of a final order, following a hearing under this section, shall be deemed abandoned and may be disposed of as an unclaimed vehicle as provided by law.
(h) This section shall not replace or otherwise abrogate any existing state or federal laws or local ordinances pertaining to vehicle seizure and impoundment.
(i) The statutory provisions of the Illinois Administrative Review Act (“Review Act”), 735 ILCS 5/3-101, et seq., and Section 11-208.7 of the Illinois Vehicle Code, 625 ILCS 5/11-208.7, are hereby adopted and incorporated into this section. The Review Act shall apply to the review of all final decisions issued by the administrative hearing officer in administrative proceedings under this section.
(j) Unless stayed by a court of competent jurisdiction, any fine, penalty, or administrative fee imposed under this section which remains unpaid in whole or in part after the expiration of the deadline for seeking judicial review under the Review Act may be enforced in the same manner as any judgment entered by a court of competent jurisdiction.
Section Three: That this Ordinance shall be in full force and effect, and shall be controlling immediately upon passage and approval.
Section Four: That all ordinances or parts of ordinances thereof in conflict herewith are hereby repealed to the extent of any such conflict.
Section Five: That any Section or provision of this Ordinance that is construed to be invalid or void shall not affect the remaining sections or provisions which shall remain in full force and effect thereafter.
PASSED by the City Council of the City of Aurora, Illinois, on .
AYES ___________ NAYS __________
APPROVED AND SIGNED by the Mayor of the City of Aurora, Illinois, on this _____ day of _____________________________, 2015.
__________________________________
Mayor
ATTEST:
___________________________________
City Clerk
City of Aurora
Law Department
44 East Downer Place
Aurora, IL 60507