§ 35-190. - Procedure used to abate public nuisance per se relating to a vehicle used for prostitution-related transportation or prostitution-related criminal activity, a drive-by shooting, a speed contest violation, to block vehicular traffic, or for an eluding a peace officer violation as declared by this division.
(a) The City Manager or designated agent, as designated by the applicable provisions of this section, acting on behalf of the City, or City Police Officers, are authorized to use the procedures set forth in this section to abate a public nuisance per se as declared by Section 35-189 of this division.
(b) Any vehicle used by an involved owner or lessee or an involved licensee in a manner that creates a public nuisance per se as declared in Section 35-189 of this division may be impounded as authorized by this section. The purpose of impounding the vehicle is to hinder the continuation of the public nuisance declared by Section 35-189 of this division. The procedure for impoundment of such a vehicle shall follow the applicable procedures for impoundments as set forth in Division 4 of Article II of Chapter 32 of this Code, except that the specific additional procedures set forth in this section shall also apply and be controlling as to the impoundment of a vehicle as a public nuisance.
(c) Impoundment of a vehicle under this division may be done by a City Police Officer immediately, in the field, when the impoundment is incident to an arrest of an involved owner or lessee or an involved licensee for commission of prostitution-related transportation or prostitution-related criminal activity, a drive-by shooting, a speed contest violation, blocking vehicular traffic, or an eluding a peace officer violation. Immediate impoundment in such cases without prior notice to and an opportunity to be heard for vehicle owners and lessees is necessary to summarily abate the public nuisance and prior notice to and an opportunity to be heard for vehicle owners and lessees are impracticable under the circumstances. Following such impoundment incident to an arrest, the post-impoundment procedures set forth in Subsection (f) of this section shall be followed.
(d) As soon as reasonably possible following the summary abatement by impoundment of the vehicle, as authorized by Subsection (c) of this section, the Police Department shall notify each titled owner, lessee and lien holder of the abatement and the costs thereof. The notice shall inform any titled owner, lessee and lien holder that they may attend upon request a hearing concerning the impoundment of the vehicle as a public nuisance per se which shall be conducted at a specific date, time and place, if requested as prescribed in the notice.
(e) When the impoundment of a vehicle under this division is not incident to an arrest in the field, and the vehicle remains in the possession of the involved owner, lessee or licensee, the following procedures shall apply:
(1) The impoundment shall be preceded by five business days' prior notice to the vehicle lien holders, owners and lessees, and an opportunity for them to be heard, if this can be given. Notice shall be directed to the last known addresses of such record lien holders, owners and lessees. Notice may be served by personal delivery or by certified mail, with return-receipt requested, and proof of service shall be placed in the City file regarding the matter. The notice shall inform said lien holders, owners and lessees that a hearing shall be held before the City Manager or designated agent acting on behalf of the City at a date, time, and place to be specified in the notice to determine whether or not reasonable cause exists that the vehicle should be impounded as a public nuisance per se as declared by Section 35-189 of this division and inform them that they have the right to appear at a hearing and be heard and present evidence.
(2) The hearing shall be held before the City Manager or designated agent acting on behalf of the City, who shall act as the hearing officer and exercise quasi-judicial powers. At the hearing, the hearing officer shall determine whether the vehicle should be impounded as a public nuisance per se, as declared by Section 35-189 of this division. The standards to be applied by the said hearing officer in determining whether the vehicle should be impounded as a public nuisance per se shall be the same as those set forth in Subsection (f) of this section concerning vehicles impounded incident to an arrest.
(3) Following the hearing at which the said order is issued by the City Manager or designated agent acting on behalf of the City, with appropriate findings having been made by the said hearing officer, the Municipal Counselor is authorized to bring an action in the appropriate district court in the name of the City pursuant to 50 O.S. § 17 for the issuance of a court order authorizing the Chief of Police or his designee to impound the vehicle and to remove it from the possession of the involved owner or lessee or the involved licensee and to thereafter hold it for the mandatory holding period, subject to the other provisions of this division, including the provisions authorizing non-involved owners or lessees, if any exist, to redeem the vehicle at any time in accordance with this section. Following the issuance of the court order by the District Court, the Chief of Police or designee shall impound the vehicle.
(f) The following additional post-impoundment procedures shall apply whenever a vehicle is impounded by a City Police Officer in the field pursuant to Subsection (c) of this section:
(1) Within five business days following the impoundment of a vehicle in the field as a public nuisance per se under this section, notice of seizure shall be served on all record lien holders, owners and lessees. Notice of seizure shall be directed to the last known addresses of such record lien holders, owners and lessees and, if known, the vehicle driver. Notice may be served by personal delivery or by first-class mail, and proof of service shall be placed in the City file regarding the matter. The notice of seizure shall inform said driver, lien holders, owners and lessees that upon request a hearing shall be held before the City Manager or designated hearing officer acting on behalf of the City at a date, time, and place to be specified by the hearing officer to determine whether or not reasonable cause exists that a vehicle that said driver, lien holders, owners or lessees have an interest in should be impounded as a public nuisance per se as declared by Section 35-189 of this Division. The notice scheduling a requested hearing shall be sent by first-class mail to the driver, lien holders, owners and lessees and inform them that they have the right to appear at the hearing and be heard and present evidence. The hearing shall be set within ten business days from the date the notice of hearing is given. If no request for hearing is received within the time period provided in the notice of seizure, the hearing officer shall consider the evidence available from police reports to determine whether the vehicle shall be held as a public nuisance per se and shall issue an order in accordance with the evidence.
(2) The hearing if requested shall be held before the City Manager or designated hearing officer acting on behalf of the City at a date, time, and place to be specified in the notice of hearing to determine whether or not reasonable cause exists that a vehicle that said lien holders, owners or lessees have an interest in should be impounded as a public nuisance per se, as declared by Section 35-189 of this division.
(3) The requested hearing shall be held before the City Manager or designated agent acting on behalf of the City, who shall act as the hearing officer and exercise quasi-judicial powers. The procedure to be followed and the standards to be applied by the said hearing officer in determining whether the vehicle should be impounded as a public nuisance per se, as declared by Section 35-189 of this division shall be the following:
a. The hearing affords the lien holder, owner or lessee an opportunity to appear, respond and present evidence and argument on the pertinent issues of the hearing:
b. Only relevant, competent and material evidence is allowed;
c. Unduly repetitive evidence is excluded;
d. Judicial notice is taken of judicially cognizable facts;
e. A record of the proceedings is made that reflects:
1. Documentary evidence considered;
2. A list of witnesses who testify and an audio or video recording of their testimony or a transcript of proceedings;
3. Content of matters officially noticed;
4. Any offers of proof; and
5. A list of other evidence or data submitted;
f. At the conclusion of the hearing or as soon as possible thereafter, the hearing officer shall issue a written order indicating the decision and addressing the following issues:
1. Whether the vehicle at issue was used in a criminal activity as identified in the Criminal Activities Public Nuisance Abatement Ordinance;
2. Whether the vehicle, if used in criminal activity, is a public nuisance pursuant to the provisions of the Criminal Activities Public Nuisance Abatement Ordinance; and
3. Whether a 90-day mandatory impound of the public nuisance vehicle is appropriate;
g. The burden of proof at any such hearing shall be a preponderance of the evidence based upon a totality of the circumstances;
h. Once a vehicle has been adjudicated by the hearing officer to be a public nuisance, no other such hearing for that vehicle for that incident shall be allowed;
i. The written order of the hearing officer shall be served in person or by mail at the last-known address of the persons who received the notice of seizure, shall be final and shall be subject only to review of a court of competent jurisdiction as allowed by law; and
j. Notwithstanding an order to abate the availability of a vehicle pursuant to this section, an involved owner or involved lessee may still obtain possession as otherwise allowed in this article.
(g) Any vehicle impounded under this section and for which the City Manager or designated agent acting on behalf of the City as the hearing officer finds reasonable cause to exist that the vehicle is a public nuisance per se under Section 35-189 of this division shall be held by the City and not released to any involved owner or lessee for the mandatory holding period, which shall be a period of 90 days from and after the date of impoundment. Any vehicle impounded as a public nuisance shall be held at a location as duly determined by the City.
(h) Following the mandatory holding period, the involved owner or lessee shall have the right to redeem the vehicle from the City upon payment of all impoundment and storage fees due as of the date of redemption. Provided, as stated in Subsection (i)(1) of this section, the mandatory holding period shall not apply as to any non-involved owner or lessee who wishes to assume possession of the vehicle or redeem the vehicle upon payment of all costs, if any, relating to the impoundment and storage of the vehicle as of the date the non-involved owner or lessee assumes possession or redeems the vehicle, as provided by Subsection (j) of this section.
(i) A vehicle declared a public nuisance per se and impounded under this division shall also be subject to the following provisions:
(1) The mandatory holding period shall not apply as to non-involved owners or lessees and any non-involved owner or lessee who wishes to claim the vehicle and who can prove a lawful right to possess the vehicle shall have a right to assume possession of the vehicle or to redeem the vehicle at any time upon payment of all costs, if any, relating to the impoundment and storage of the vehicle as of the date the non-involved owner or lessee assumes possession or redeems the vehicle. Provided, to assume possession of the vehicle or to redeem the vehicle once impounded, the non-involved owner or lessee (or agent if the said owner or lessee is not an individual) must sign a notice stating that he or she will not permit any involved owner, lessee or licensee to drive or ride in the vehicle for a one-year period from the date of the incident that caused the vehicle to be declared a public nuisance per se and as specified in the notice, and that the non-involved owner or lessee understands that any violation of this notice shall be a Class "a" offense and may subject him or her to prosecution and make the vehicle subject to impoundment as a method of summary abatement of the public nuisance caused by any such involved owner or licensee driving or riding in the vehicle during the said one-year period.
(2) When a vehicle is being used in violation of the notice provided for in Subsection (i)(1) above and the driver of the vehicle is arrested in the field, the vehicle will be considered to be a continuing public nuisance per se and may be summarily abated by immediate impoundment at the time of the arrest with the post-impoundment procedures in Subsection (f) of this section to be followed. When a vehicle is being used in violation of the notice provided for in Subsection (i)(1) above but the driver of the vehicle is not arrested in the field, the vehicle will be considered to be a continuing public nuisance per se, but it will not be immediately impounded; but rather shall be subject to impoundment as allowed in Subsection (e) of this section. When a vehicle is impounded pursuant to the provisions of this Subsection (i), the mandatory impoundment period for such continuing public nuisance per se shall be 180 days from the date of the violation of the notice provided for in Subsection (i)(1) above.
(j) The release of a vehicle impounded under the provisions of this section shall take place under the circumstances set forth in this division and any applicable provisions of the Oklahoma Statutes.
(k) In the event no owner or lessee of a vehicle impounded under the provisions of this division takes possession of or redeems the vehicle when permitted herein, then disposition of the vehicle shall take place pursuant to the provisions of Section 32-111 of this Code and the applicable provisions of the Oklahoma Statutes.
(l) Vehicles used by trespassers for prostitution-related transportation or prostitution-related criminal activity, a drive-by shooting, a speed contest, blocking vehicular traffic, or eluding or attempting to elude a peace officer shall not be impounded pursuant to this section, but may be impounded or released, pursuant to any applicable provision of Division 4 of Article II of Chapter 32 of this Code.
(m) Once a vehicle has been determined by a hearing officer under this section to be a public nuisance per se, no other such administrative hearing for that vehicle for that incident shall be allowed; provided, no owner of a vehicle shall be deprived of an opportunity for a hearing regarding his or her right to possession of the vehicle.
(n) A written order entered by a hearing officer under this section shall be final and subject only to review by a court of competent jurisdiction as allowed by law.
(o) Notwithstanding an order to abate the availability of a vehicle pursuant to this section, a non-involved owner or a non-involved lessee may still obtain possession as otherwise allowed in this article.
(p) Nothing in the division shall be construed to prohibit the filing of any criminal charges or of any other civil action or actions, including but not limited to forfeiture proceedings, against any owner or lessee of the vehicle as may otherwise be allowed by law.
(Ord. No. 23450, § 2, 9-25-07; Ord. No. 23692, § 3, 9-23-08; Ord. No. 24352, § 1, 10-18-11 ; Ord. No. 25000, § 1, 10-7-14; Ord. No. 26746, § 1, 5-11-21; Ord. No. 27170, § 2, 9-13-22)
