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Ord 01-393 ORDINANCE NO. 01-393 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, ADDING A NEW ARTICLE TO CHAPTER 15 OF THE FEDERAL WAY CITY CODE AUTHORIZING IMPOUNDMENT OF VEHICLES DRIVEN BY SUSPENDED OR REVOKED DRIVERS. WHEREAS, in Washington Laws 1998, Ch. 203, section 4, the Legislature adopted certain findings concerning the threat to public safety posed by drivers with suspended and/or revoked drivers' licenses and, in order to protect public safety, the need to provide authorization to local governments to impound any vehicle when it is found to be operated by a driver with a suspended or revoked license; and WHEREAS, RCW 46.55.113 authorizes Washington cities and towns to adopt ordinance providing for the impoundment of vehicles of drivers arrested for driving with a suspended or revoked license; and WHEREAS, the City of Federal Way City CoUllcil does hereby adopt by reference the findings contained in Washington Laws 1998, Ch. 203, section 4; and WHEREAS, notwithstanding the threat of criminal punishment, drivers arrested and cited for driving with a suspended or revoked license in Federal Way ftequentIy fail to appear for court appearances, leading to the issuance of a bench warrant for their arrest and subsequent incarceration; and WHEREAS, the City of Federal Way'sjail costs have increased an average ofI04% per year ftom 1991 to 2000; and ORD # 01-393 ,PAGEl C~~y WHEREAS, the City Council desires to exercise the authority granted it under RCW 46.55.113, to protect the public safety against the threat posed by drivers with suspended or revoked licenses, provide for immediate and certain consequences in the form of impoundment of vehicles driven by drivers with suspended or revoked licenses, deter future such violations, reduce the incidence of future driving while suspended violations, and halt the increase of jail costs; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Creation. A new article entitled: Article VIII. Impoundment of Vehicles Driven By SuspendedlRevoked Drivers is added to Chapter 15 of the Federal Way City Code as follows: Section 15-220. Definitions. The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Authorization means a notarized statement from a person with legal authority giving another person legal authority to act on his or her behalf. Costs of Impoundment means the costs of removal, towing and storage incurred by a registered tow truck operator in impounding a vehicle as provided for herein. Court means the Federal Way Municipal Court. Department means the Federal Way Department of Public Safety. Director means the Director of the Federal Way Department of Public Safety. DWLS 1 means RCW 46.20.342 (1) (a) or as hereafter amended. DWLS 2 means RCW 46.20.342 (1) (b) or as hereafter amended. DWLS 3 means RCW 46.20.342 (1) (c) or as hereafter amended. Local ordinance means any ordinance or statute enacted by any town, city, municipality or county regardless of what state the ordinance or statute is enacted in. ORD # 01-393 , PAGE 2 NVOL / No Valid Operator's License means RCW 46.20.005. or as hereafter amended. Penalties, fines, and foifeitures mean monetary obligations in addition to costs of removal, towing and storage of the vehicle. (RCW 46.55.110). Registered tow truck operator means the towing company awarded the contract for performance of impounds pursuant to FWCC Section l5-228(a), if the City Manager exercises his or her option to seek bidders for an exclusive towing contract, or any towing company which the Director requests pursuant to FWCC Section 15-228(b) to tow and impound vehicles. Registered tow truck operators shall hold a valid City of Federal Way business license and be registered with the State of Washington pursuant to RCW 46.55. Section 15-221. Impoundment. Whenever the driver of a vehicle is arrested for violation ofDWLS 1, DWLS 2, or DWLS 3, NVOL, or for violation ofRCW 46.20.345, the vehicle is subject to impoundment at the discretion of an officer of the Department of Public Safety, by an authorized agent of the Department, or by a registered tow truck operator acting at the request of an officer or authorized agent of the Department. For purposes of this subsection, arrested includes, but is not limited to, being temporarily detained and served with a citation and notice to appear pursuant RCW 46.64.015, as now or hereafter amended. Section 15-222. Period ofImpoundment. (a) If a vehicle is impounded because the driver is arrested for a violation of DWLS 3, NVOL, or RCW 46.20.345 and the Washington Department of Licensing's records show that the driver has been convicted of a violation ofDWLS 1, DWLS 2, DWLS 3, NVOL, RCW 46.20.342 or similar local ordinance one (1) time or less within the last five (5) years, there shall be no mandatory period of impoundment and the vehicle may be redeemed subject to the provisions ofFWCC 15-224. (b) If a vehicle is impounded because the driver is arrested for a violation of DWLS 3, NVOL, or RCW 46.20.345 and the Washington Department of Licensing's records show that the driver has been convicted two (2) or more times of a violation of DWLS 1, DWLS 2, DWLS 3, NOVL, RCW 46.20.345 or similar local ordinance within the last five (5) years, the vehicle shall be impounded for thirty (30) days subject to the provisions ofFWCC 15-224. (c) If a vehicle is impounded because the driver is arrested for a violation of DWLS 1 or DWLS 2 and the Washington Department of Licensing's records show that the driver has not been convicted of a violation ofDWLS 1 or DWLS 2 or similar local ordinance within the last five (5) years, the vehicle shall be impounded for thirty (30) days, subject to the provisions ofFWCC 15- 224. (d) If a vehicle is impounded because the driver is arrested for a violation ofDWLS 1 or DWLS 2 and the Washington Department of Licensing's records show that the driver has been ORD # 01-393 , PAGE 3 convicted one (1) time ofa violation ofDWLS 1 or DWLS 2 or similar local ordinance within the last five (5) years, the vehicle shall be impounded for sixty (60) days, subject to the provisions of FWCC 15-224. (e) If a vehicle is impoUllded because the driver is arrested for a violation ofDWLS lor DWLS 2 and the Washington Department of Licensing's records show that the driver has been convicted two (2) or more times of a violation of DWLS 1 or DWLS 2 or similar local ordinance within the last five (5) years, the vehicle shall be impoUllded for ninety (90) days, subject to the provisions of FWCC 15-224. (f) Notwithstanding the provisions of subsections (a) - (e) of this section, a rental car business may immediately redeem a rented vehicle it owns by payment of the administrative fee and costs of impoUlldment, whereupon the vehicle will not be held for the mandatory period of impoUlldment. The officer or authorized agent of the Department who directs the impoUlld shall notify the rental car business as soon as practicable ofthe impound. Section 15-223. Notice of Impoundment. (a) The person impoUllding the vehicle shall provide the driver of the impoUllded vehicle with a notice including the following: (1) the name of the impoUllding registered tow truck operator, its address, and telephone number; (2) the location and time of the impound, and by whose authority (including the name of the officer or authorized agent of the Department) the vehicle was impounded; (3) the mandatory period of impoundment under Section 15-222; and (4) a form, approved by the City, which describes the right to and process for vehicle redemption requirements as set forth in Section 15-224, and which describes the process of Section 15-225 for contesting an impoUlld or the costs of impoUlldment. (b) Not more than twenty-four (24) hours after impoUlldment of any vehicle, the registered tow truck operator shall mail a copy ofthe notice described in subsection (a) of this section by first class mail to the last known address of the legal and registered owner(s) of the vehicle, as may be disclosed by the vehicle identification number and/or as provided by the Washington State Department of Licensing. If the vehicle is redeemed prior to the mailing of this notice, the notice need not be mailed. A proof of mailing form shall be completed by the registered tow truck operator and filed with the Municipal Court. If the registered tow truck operator wishes to request that the person seeking redemption of the vehicle pay a security deposit, the notice shall also state that the person who desires to redeem an impounded vehicle at the end ofthe mandatory period must within five days of the impound pay a security deposit to the registered tow truck operator of not more than one-half of the applicable impoUlld storage rate for each day of the proposed period of impoUlldment, as set forth in Section 15- 222, to ensure payment of the costs of impoundment. The notice shall state that if the security ORD # 01-393 , PAGE 4 deposit is not posted within five days of the impound, the vehicle will be processed and sold at auction as an abandoned vehicle pursuant to RCW 46.55.130. (c) The registered tow truck operator or the Department of Public Safety, as applicable, shall provide notice as described in subsection (a) of this section by first class mail to each person who contacts the Department or the registered tow truck operator seeking to redeem an impounded vehicle, except that if a vehicle is redeemed prior to the mailing of notice, then notice need not be mailed. The registered tow truck operator shall maintain a record evidenced by the redeeming person's signature that notice was provided directly to the person redeeming the vehicle. A proof of mailing form shall be completed by the registered tow truck operator and filed with the Municipal Court. (d) Ifthe date on which a notice required by subsection (b) ofthis section is to be mailed falls upon a Saturday, Sunday, or postal holiday, the notice may be mailed on the next day that is neither a Saturday, Sunday, nor a postal holiday. Section 15-224. Redemption of impounded vehicles. Vehicles impounded by the City in accordance with this Chapter, as now or hereafter amended, shall be redeemed only under the following circumstances: (a) Only the registered owner, a person with authorization from the registered owner, or one who has purchased the vehicle from the registered owner and who produces proof of ownership or authorization from the registered owner and signs a receipt therefor, may redeem an impounded vehicle. A person redeeming a vehicle impounded pursuant to this Chapter must, prior to redemption, establish that he or she has a valid driver's license and is in compliance with RCW 46.30.020 and pay a $100.00 administrative fee to the Municipal Court, and obtain a receipt for release from the Municipal Court. Ifthe vehicle was impounded pursuant to FWCC 15-221 and was being operated by the registered owner when it was impounded, the Municipal Court shall not issue a receipt for release until all penalties, fines, or forfeitures owed by the registered owner have been satisfied, or a time payment agreement (in a form approved by the Municipal Court) has been entered into providing for the satisfaction of all said penalties, fines or forfeitures. A vehicle impounded pursuant to this Chapter for DWLS 1 or 2, or NVOL, can only be released pursuant to a written order from the Court. A vehicle impounded pursuant to this Chapter for DWLS 3 may be released pursuant to the Municipal Court receipt. (b) Any person so redeeming a vehicle impounded by the City shall pay the towing contractor for the costs of impoundment prior to redeeming such vehicle. Such towing contractor shall accept payment as provided in RCW 46.55.120 (1) (b), as now or hereafter amended. (c) The Municipal Court is authorized to release a vehicle impounded pursuant to FWCC 15- 221 prior to the expiration of any period of impoundment upon petition of the spouse of the driver, or the registered owner provided the owner was not the driver, based on economic or personal hardship to such spouse, or registered owner resulting ftom the unavailability of the vehicle and after ORD # 01-393 ,PAGES consideration ofthe threat to public safety that may result fÌ'om release of the vehicle, including, but not limited to, the driver's criminal history, driving record, license status and access to the vehicle. An individual may have only one such hardship petition granted. If such release is authorized, the person redeeming the vehicle must still satisfY the requirements ofFWCC 15-224 (a) and (b). Section 15-225. Hearing requests. Any person seeking to redeem a vehicle impounded as a result of a parking citation, traffic citation, or pursuant to FWCC 15-221 has a right to a hearing before a Municipal Court Commissioner to contest the validity of an impoUlldment or the amount or removal, towing, and storage charges and any administrative fee if such request is made in writing, in a form approved by the City Manager and signed by such person, and received by the MUIlicipal Court within ten (10) days (including Saturdays, Sundays, and holidays) of the date the notice was given to such person by the person impounding the vehicle or if the person seeking to contest the impoUlld validity was not the driver, within 10 days (including Saturdays, Sundays and holidays) of the date the notice was mailed by the registered tow truck operator pursuant to RCW 46.55.120 (2) (a). Such hearing shall be provided as follows: (a) If all of the requirements to redeem the vehicle, including expiration of any period of impoundment under FWCC 15-221, have been satisfied, then the impounded vehicle shall be released immediately, and a hearing as provided for in FWCC 15-223 shall be held within ninety (90) days of the written request for hearing. Any delay attributable to the person requesting the hearing, including but not limited to continuances of the hearing date, shall be excluded from the ninety (90) day period. (b) If not all the requirements to redeem the vehicle, including expiration of any period of impoUlldment under FWCC 15-221, have been satisfied, then the impoUllded vehicle shall not be released until after the hearing provided pursuant to FWCC 15-223, which shall be held within two (2) business days (excluding Saturdays, SUIldays and holidays) of the written request to the MUIlicipal Court for the hearing UIlless good cause as to the reason(s) for any delay is shown. Any delay attributable to the person requesting the hearing, including but not limited to continuances of the hearing date, shall be excluded fÌ'om the two (2) day period. (c) Any person seeking a hearing who has failed to request such hearing within the time specified in FWCC 15-223 may petition the MUIlicipal Court Commissioner for an extension of time to file such a request for hearing. Such extension shall only be granted upon the demonstration of good cause as to the reason(s) the request for hearing was not timely filed. For the purposes ofthis section, "good cause" shall be defined as circumstances beyond the control ofthe person seeking the hearing. In the event such extension is granted, the person receiving such extension shall be granted a hearing in accordance with this chapter. (d) If a person fails to file a timely request for hearing and no extension to file such a request has been granted, the right to a hearing is waived, the impoundment and the associated costs of impoundment and administrative fees are deemed to be proper, and the City shall not be liable for removal, towing, and storage charges arising ftom the impoundment. ORD # 01-393 , PAGE 6 (e) In accordance with RCW 46.55.240 (1) (d), a decision made by a Municipal Court Commissioner may be appealed to the Municipal Court Judge for final judgment. The hearing on the appeal UIlder this subsection shall be de novo. A person appealing such a decision must file a request for an appeal within fifteen (15) days after the date of the decision of the Municipal Court Commissioner and must pay a filing fee in the same amount required for the filing of a suit in district court. If a person fails to file a request for an appeal within the time specified by this section or does not pay the filing fee, the right to appeal is waived and the Municipal Court Commissioner's decision is final. Section 15-226. Post-impoundment hearing procedure. Hearings requested pursuant to FWCC 15-225 shall be held by a MUIlicipal Court Commissioner, who shall determine whether the impoUlldment was proper and whether the associated removal, towing, storage, and administrative fees were proper. (a) At the hearing, an abstract of the driver's driving record is admissible without further evidentiary foundation and is prima facie evidence of the status of the driver's license, permit, or privilege to drive and that the driver was convicted of each offense shown on the abstract. In addition, Department of Licensing vehicle registration records of the impounded vehicle are admissible without further evidentiary foundation and are prima facie evidence of the identity of the registered owner of the vehicle. (b) If the impoundment is found to be proper, the Municipal Court Commissioner shall enter an order so stating. In the event that the costs of impoundment (removal, towing and storage) and administrative fee have not been paid or any other applicable requirements ofFWCC 15-224(a) or (b) have not been satisfied or any period ofimpoUlldment under FWCC 15-222 has not expired, the Municipal Court Commissioner's order shall also provide that the impounded vehicle shall be released only after payment to the City of any fines imposed on any underlying traffic or parking infraction and satisfaction of any other applicable requirements ofFWCC 15-224(a) or (b) and after expiration of any period ofimpoUlldment under FWCC 15-222. The MUIlicipal Court Commissioner shall grant time payments only in cases of extreme financial need, and where there is an effective guarantee of payment. In any event, time payments shall not be granted if the person seeking time payments had failed to fully comply with the requirement to make any time payments previously granted under this section. In the event time payments are granted, the City shall advance the costs ofimpoUlldment to the towing company. (c) Ifthe impoUlld is foUlld to be improper, the Municipal Court Commissioner shall enter an order so stating and order the immediate release of the vehicle. If the costs of impoundment have already been paid, the Municipal Court Commissioner shall enter judgment against the City in favor of the person who has paid the costs of impoundment in the amoUlltofthe costs of the impoUlldment. (d) In the event that the Municipal Court Commissioner finds that the impound was proper, but that the removal, towing, storage, or administrative fees charged for the impoUlld were improper, the Municipal Court Commissioner shall determine the correct fees to be charged. If the costs of ORD # 01-393 , PAGE 7 impoundment have been paid, the Municipal Court Commissioner shall enter a judgment against the City and in favor of the person who has paid the costs of impoundment for the amount of any overpayment. (e) No determination of facts made at a hearing under this section shall have any collateral estoppel effect on a subsequent criminal prosecution and shall not preclude litigation of those same facts in a subsequent criminal prosecution. (f) An appeal ofthe Municipal Court Commissioner's decision in Municipal Court shall be conducted according to, and is subject to, the procedures of this section. Ifthe Municipal Court finds that the impoundment or the removal, towing, storage, or administrative fees are improper, any judgment entered against the City shall include the amount ofthe filing fee. (g) As to any impoundment arising ITom an alleged violation under this article, if it is determined to be improper, then the law enforcement officer directing the impoundment and the government employing the officer are not liable for damages if the officer relied in good faith and without gross negligence on the records of the Washington Department of Licensing in ascertaining that the operator of the vehicle had a suspended or revoked driver's license. Section 15-227. Administrative Fee. An administrative fee of$100.00 shall be levied upon each vehicle redeemed under FWCC 15-224. The fee shall be remitted to the Municipal Court. The fee shall be for the purpose of offsetting, to the extent practicable, the cost to the City of implementing, enforcing, and administering the provisions ofthis chapter and shall be deposited in an appropriate account. Section 15-228. Registered Tow Truck Operators - Contracts, Requirements. (a) The City Manager is authorized to seek a towing company or companies for a one or more contracts to be a City registered tow truck operator to perform towing and impounds pursuant to this Chapter. Award of any such contract or contracts shall be consistent with the City's adopted purchasing policies and applicable state and local laws and policies, and be approved by the City Manager or the City Council, as applicable. (b) Ifthe City Manager determines not to enter into a contract for registered tow truck operator services, the City Manager may authorize the Director to have any tow truck operator registered with the State of Washington perform towing and impounds pursuant to this Chapter. (c) A registered tow truck operator shall conduct any auction of vehicles impounded pursuant to this Chapter in accordance with RCW 46.55.130, as now or hereafter amended. In addition, prior to closing any sale of an auctioned, impounded vehicle or transferring title thereto, the registered tow truck operator shall first confirm with the Washington Department of Licensing (or the applicable ORD # 01-393 , PAGE 8 licensing agency of another state) that the successful bidder at the auction has a valid Washington driver's license or a valid driver's license from another state. (d) Records. (1) With respect to any sale at auction ofa vehicle impounded under this Chapter, all registered tow truck operators shall record the date of sale, the vehicle identification number of each vehicle, the name, address and telephone number ofthe registered owner of the impounded vehicle being auctioned, as well as the name, address, driver's license number and date of driver's license expiration of each buyer. Said record shall be submitted to the Director on or before December 31 " of each calendar year. (2) A registered tow truck operator shall maintain copies of all records of all sales required pursuant to this Chapter, for at least six (6) years, and such records shall be open at all reasonable times to the inspection ofthe designated official, or his or her duly authorized designees for inspection. Section 2. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion ofthis ordinance or the invalidity ofthe application thereofto any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstances. Section 3. Ratification. Any act consistent with the authority and prior to the effective date ofthis ordinance is hereby ratified and affirmed. Section 4. Effective Date. This ordinance shall take effect and be in force sixty (60) days from and after its passage and publication, as provided by law. June PASSED by the City Council of the City of Federal Way this ,2001. 19th day of CITY OF FEDERAL WAY ~~ MAYOR, MI ORD # 01-393 , PAGE 9 )7.. '(?A-~~A~ CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: ---ßJ1-~. ~ CITY ATTORNEY, BOB C. STERBANK FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. OS/29/01 06/19/01 06/23/01 08/l2 /01 01-393 K: \0 RD IN\D WLS impo UIldordinance6. doc Revised 5-7-01 ORD# 01-393 , PAGE 10