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Ordinance No. 90-04 ORDINANCE NO. AN ORDINANCE AMENDING TITLE 7, CHAPTER 7.50 OF THE TIGARD MUNICIPAL CODE BY ADDING NOTICE AND HEARING PROVISIONS FOR ABANDONED VEHICLES WHEREAS, recent Supreme Court rulings require specific notice and hearing rights when an abandoned vehicle is towed; and WHEREAS, the City of Tigard wishes to assure that all citizens have the right to notice and hearing when their vehicle is towed; now, therefore, THE CITY OF TIGARD DOES ORDAIN AS FOLLOWS: Section 1. Section 7.60.010(1) is amended to read as follows: "Section 7.60.010 Definitions. (1) 'Abandoned' or 'abandoned vehic('l means any vehicle that has been deserted or relinquished. A vehicle shall be considered abandoned if it has remained in the same location for more than 24 hours and one or more of the following conditions exist: (a) The vehicle does not have an unexpired license plate lawfully, fixed�to it, or (b) The vehicle appears to be inoperative or disabled, or (c) The vehicle appears to be wrecked, partially dismantled or junked." Section 2. Chapter 7.60 of the Tigard Municipal Code is amended by adding Section 7.60.015 to read as follows: "Section 7.60.015 Abandoned Vehicles Offense. (a) A person commits the offense of abandoning a vehicle if the person abandons the vehicle on any public right-of-way or on public property of the City of Tigard. (b) The owner of the vehicle as shown by the .records of the Department of Motor Vehicles shall be considered responsible for the abandonment of a vehicle and shall be liable for the cost of removal and disposition of the abandoned vehicle. (c) A vehicle abandoned in violation of this section is subject to the provisions for removal of abandoned vehicles under Sections 7.60.020 to 7.60.030 and to being sold as provided under Sections 7.60.070 to 7.60.110. (d) The offense described in this section, abandoning a vehicle, is a class is traffic infraction." Section 3. Section 7.60.020 is amended to read as follows: "Section 7.60.020 Removal -- Notice. (a) It shall be the duty of the police department, whenever a vehicle is found abandoned on any public right-of-way or on public property, to: (1) Make a routine investigation to discover the owner and request removal of the vehicle; or (2) Failing to discover the owner by such a process, to make diligent inquiry as to the name and address of the owner of the vehicle by examining such vehicle for license number, I.D. number, make, style and any other information which will aid in the identification of the ownership of the vehicle, and transmitting all available information pertaining to the vehicle to the Department of Motor Vehicles of this state with an inquiry for the name and address of the owners and any lessors or security interest holders. (3) If the owner cannot be identified or located or does not remove the vehicle upon request to do so, to give notice to remove the vehicle by both of the following methods: (a) By affixing a Notice to Tow to the vehicle with the required information. (b) By mailing notice, by certified mail with the receipt stamped as proof of mailing, at least five days before taking the vehicle into custody, with the required information to the owners and any lessors or security interest holders at the address of each shown by the records of the Department of Motor Vehicles, The five-day period under this paragraph does not include holidays, Saturdays or Sundays. ORDINANCE NO. %U_U y PAGE 2 (4) The notice shall state all of the following: (a) That the vehicle will be subject to being taken into custody and removed by the City if the vehicle is not removed within twenty-four (24) hours. (b) That the vehicle violates Chapter 7.60 of the Tigard Municipal Code and the vehicle will be removed under the authority of that chapter. (c) The place where the vehicle will be held in custody or the telephone number and address of the appropriate authority that will provide the information. (d) That the vehicle, if taken into custody and removed by the City, will be subject to towing and storage charges and that a lien will attach to the vehicle and its contents. (e) That the vehicle and its contents will be sold by the City or the towing and storage facility where the vehicle is located to satisfy the costs of towing and storage if the charges are not paid. (f) That the owner, possessor or person having an interest in the vehicle is entitled to a hearing, before the vehicle is impounded, to contest the proposed custody and removal if a hearing is timely requested. (g) That the owner, possessor or person having an interest in the vehicle may also challenge the reasonableness of any toning and storage charges at the hearing. (h) That a hearing must be requested not more than five days, holidays, Saturdays or Sundays not included, from the mailing date of the notice and the method for requesting a hearing. If a timely request for a hearing is received prior to towing the vehicle, the vehicle shall not be removed pending the outcome of the hearing. ORDINANCE N0. } PAGE 3 (5) The notices in Subsection (3) above are not required when the vehicle is abandoned in such a location as to constitute a hazard or obstruction to traffic using the public right-of-way or public property. 'upon discovery, thepolice department �.^ May immediately take cYLVtVs:y of and remove a vehicle constituting a hazard. However, the City shall provide the notice described in Section 7.60.050 and, if requested, a hearing described under Section 7.60.055." Section 4. Section 7.60.030 is amended to read as follows: "Section 7 60.030 Removal -- Procedure. An abandoned vehicle which remains in the same position for a period of five days, holidays, Saturdays or Sundays not included, after an owner has been requ9sted to remove it or after notice has been given as required by Section 7.06.020 shall be removed by the police department using their own personnel, equipment or facilities or those of others." Section 5. Section 7.60.040 is amended to read as follows: "Section 7 60 040 Possessory lien for towing charges. (a) A person shall have a lien on the vehicle and its contents if the person, at the request of the City tows an abandoned vehicle.- A lien established under this section shall be on the vehicle and its contents for the just and reasonable charges for the towing service .performed and any storage provided. The lien shall be subject to the provisions for liens under ORS 98.812(3) . The person holding the lien may retain possession of the vehicle and contents until the charges on which the lien is based are paid. A lien described under this section does not attach to the contents of any vehicle taken from public property until 15 days after taking the vehicle into custody. ORDINANCE NO. t PAGE 4 (b) A person who tows any vehicle at the request of the City shall provide written notice, approved by the City, containing information on the procedures necessary to obtain a hearing. Each person who redeems a vehicle shall sign a copy of the receipt issued, indicating that they have received notice of their right to a hearing." Section 6. Section 7.60.050 is amended to read as follows: "Section 7.60.050 Impoundment -- Notice. (1) If the City takes custody of a vehicle, the City shall provide, by certified mail with the receipt stamped as proof of mailing, within forty-eight (48) hours of the removal, notice with an explanation of procedures available for obtaining a hearing to the owners of the vehicle and any lessors or security interest holders as shown in the records of the Department of Motor Vehicles. The notice shall state that the vehicle has been taken into custody and shall give the location of the vehicle and describe procedures for the release of the vehicle and for obtaining a hearing. The forty-eight (48) hour period under this section does not include holidays, Saturdays or Sundays. (2) Any notice given under this section after a vehicle is taken into custody and removed shall state all of the following: (a) That the vehicle has been taken into ` custody and removed by the City, that the vehicle violated Chapter 7.60 of the Tigard Municipal Code and that the vehicle was removed under the authority of that chapter. (b) The place where the vehicle is being held in custody or the telephone number and address of the appropriate authority that will provide the information. (c) That the vehicle is subject to towing and storage charges, the amount of charges that have accrued to the date of the notice and the daily storage charges. ORDINANCE NO. C� } PAGE 5 (d) That the vehicle and its contents are subject to lien for payment of the towing and storage charges and that the vehicle and its contents will be sold by the City or the towing and storage facility where the vehicle is located to cover the charges if the charges are not paid within fifteen (15) days. (e) That the owner, possessor or person having an interest in the vehicle and its contents is entitled to a prompt nearing to contest the validity of taking the vehicle into custody and removing it and to contest the reasonableness of the charges for towing and storage if a hearing is timely requested. (f) That a hearing must be requested not more than five days, holidays, Saturdays or Sundays not included, from the mailing date of the notice and the method for requesting a hearing. (g) That the vehicle and its contents may be immediately reclaimed by presentation to the appropriate authority of satisfactory proof of ownership or right to possession and payment of the towing and storage charges." Section 7. Chapter 7.60 is amended by adding Section 7.60.55 to read as follows: "Section 7.60.055 Hearing to contest validitv of custody and removal. A person provided notice under Section 7.60.020 or 7.60.050 or any other person who reasonably appears to have an interest in the vehicle may request a hearing under this section to contest the validity of the removal and custody under Section 7.60.050 or the proposed removal and custody of a vehicle under Section 7.60.020 by submitting a request for hearing with the City not more that five days from the :nailing date of the notice. The five-day period in this section does not include holidays, Saturdays or Sundays. A hearing under this section shall comply with all of the following: (1) If the City proposes to remove a vehicle under Section 7.60.020 and receives a request for hearing before the vehicle is taken into custody and removed, the vehicle shall not be removed unless it constitutes a hazard. ORDINANCE ;NO. PAGE 6 s: (2) A request for hearing shall be in writing and shall state grounds upon which the person requczting the hearing believes that the custody aiid removal of the vehicle is not justified. (3) Upon receipt of a request for a hearing under this section, the City shall set a time for a hearing within 72 hours of the receipt of the request and shall provide notice of the hearing to the person requesting the hearing and to the owners of the vehicle and any lessors or security interest holders shown in the records of the Department of Motor Vehicles, if not the same as the person requesting the hearing. The 72-hour period in this subsection does not include holidays, Saturdays or Sundays. (4) If the City finds, after hearing and by substantial evidence on the record, that the custody and removal of a vehicle was: (a) Invalid, the City shall order the immediate release of the vehicle to the owner or person with right to possession. If the vehicle is released under this paragraph, the person to whom the vehicle is released is not liable for any pre-decision towing or storage charges. If the person has already paid the towing and storage charges on the vehicle, the City shall reimburse the person for the charges The person shall be liable for new storage charges incurred after the decision. New storage charges on the vehicle will not start to accrue until more than 24 hours after the time the vehicle is officially released to the person. (b) Valid, the City shall order the vehicle to be held in custody until the costs of the hearing and all towing and'storage costs are paid by the person claiming the vehicle. If the vehicle has not yet been removed, the City shall order its removal. (5) A person who fails to appear at a hearing under this section is not entitled to another hearing unless the person provides reasons satisfactory to the City for the person's failure to appear. ORDINANCE NO. �U PACE 7 (6) The'City is only required to provide one hearing under this section for each time the City takes a vehicle into custody and removes the vehicle or proposes to do so. (7) A hearing under this section may be used to determine the reasonableness of the charge for towing and storage of the vehicle. Towing and storage charges set by law, ordinance or rule or that comply with law, ordinance or rule are reasonable for purposes of this subsection. (8) The City shall provide a written statement of the results of the hearing to the person requesting the hearing. (9) Hearings held under this section may be informal in nature, but shall afford a reasonable opportunity for the person requesting the hearing to demonstrate by the statements of witnesses and other evidence, that the tow and/or storage of the vehicle was invalid, or for any other reason not justified. (10) The hearings officer at a hearing under this section may be an officer, official or employee of the City, other than the Tigard Police Department, but shall not have participated in any determination or investigation related to taking into custody and removing the vehicle that is the subject of the heaving. The hearings officer may promulgate necessary rules and regulations for conducting the hearings. (11) The determination of the hearings officer at a hearing is final and is not subject to appeal." Section 8. Chapter 7.60 is amended by adding Section 7.60.057 to read as follows: "Section 7.60.057 Exemption for criminal investigation. A vehicle that is being held as part of any criminal investigation is not subject to any .requirements of Section 7.60.020, 7.60.050 and 7.60.055." ORDINANCE NO. PAGE 8 Section 9. Section 7.60.060 is amended to read as follows: "S-ection 7.60.060 Appraisals. A person who is issued an appraiser certificate by the Department of Motor Vehicles shall be the only person qualified to appraise vehicles for sale under Sections 7.6G.070 and 7.60.0$0-7.60.;390." Section 10. Section 7.60.070(a) is amended to read as follows: "Section 7.60.070 Vehicles--Disposition. As often as necessary, the Chief of Police shall be provided with a list of all unclaimed vehicles which have been towed and stored by or for the City. (a) If the vehicle has been stored more than 15 days and has been appraised at seven hundred fifty dollars ($750) , or less, or has been in storage for 30 days or longer, the Chief of Police or designee shall as soon as convenient, authorize the sale of, or sell the vehicle in accordance with the pgvisions of any contract authorized by the Council and pertaining thereto. If there is no such contract and the vehicle is valued at $750 or Tess, the Chief of Police shall file with the Department of Motor Vehicles the license plates, if any, and an affidavit describing the vehicle, stating the location and appraised value of the vehicle, and stating that the vehicle will be junked or dismantled. The Chief of Police or designee shall state that notice of intent to junk or dismantle the vehicle has been sent with notification of the location of the vehicle to the owner." Section 11. Section 7.60.070 is amended by adding 'Section 7.60.070(e) to read as follows: c'(e) In the event a vehicle is sold in accordance with the provisions of a contract, the Chief of Police shall ensure that, at the time of sale, that a certificate of sale in substantially the same form as described in Subsection 7.60.070(d) is issued to the purchaser." OitUINA13CE NO. v PAGE 9 P _ Section 12. Section 7.60.080(a) is amended to read as follows: v "Section 7.60.080 Sale--Notice. (a) The Grief of Police may decide to sell at public auction any vehicles which have not been claimed within 30 days and which are valued at $750 or more, if there is no contract authorized by the Council pertaining thereto. if there is to be a public auction, the Chief of Police shall cause to be published, in a newspaper of general circulation within the city, a notice of sale which shall state: (1) The sale is of abandoned property in the city's possession; (2) A description of the vehicle, including the type, make, license number, I.D. number and any other information which will aid in accurately identifying the vehicle; (3) The terms of the sale; (4) The date, time and place of the sale." Section 13. Section 7.60.090(a) is amended to read as follows: "Section 7764.090 Sale--Procedure. (a) If the Chief of Police decides to sell any vehicles at public auction under the provisions of Section 7.60.080, then the Chief of Police shall hold a sale at the time and place appointed ;with the vehicle to be sold in view." Section 14. Section 7,60.130 is amended to read as follows: "Section7.60.130 Charges. A person or owner entitled to a vehicle held under the provisions of this Chapter is not liable for nor shall be required to pay storage charges for a period in excess of Go days." Section 15. Section 7.60.140 is amended to read as follows: j "Section 7.60.140 Forms. All forms necessary to implement and enforce the provisions of this ordinance shall be prepared and on file in the city recorder's office." ORDINANCE NO. PAGE 10 Q Section 16. Section 7.60.150 is amended to read as follows: "Section _ 7.60.150 Claim of owner to uroceeds. (a) If the vehicle is sold by tha Chief of Police under the provisions of Section 7.60.070 or 7.60.080 and 7.60.090, then at any tamp within two years after the sale of the vehicle the farmer owner of the vehicle may recover the proceeds of the sale, as deposited in the general fund of the City pursuant to Section 7.60.110, by filing a claim with the City Treasurer. Such claims shall be audited in the same manner as other claims against the City. (b) If the vehicle is sold under the provisions of a contract, the balance of the proceeds of the sale, with Fa return of sale, shall be transmitted to the City Treasurer for deposit in the general fund of the City. The towing and storage facility under contract may deduct from the proceeds of the sale the costs incurred in the sale and the costs and expenses in the removal, preservation and custody of the vehicle. At any time within two years after the sale of the vehicle the farmer owner of the vehicle may recover the proceeds of the sale, r as deposited in the general fund of the City, by filing a claim with the City Treasurer. " PASSED: By WI?%lY1 6 _ vote of all Council members present, his =+ day of� -L9-i&d 1990. erine W Utley, Be~puty C ty Recorder APPROVED: s d f , 1990. Gera awards, Mayor Approved as to form: Z;�-H--:2-nK City Attorney m,.d\tfBard\abandveh.aie ORDINANCE NO. PAGE 11