City of Ellsworth Ordinance for Vehicle Towing/Impounding/Storage

(First Published in the Ellsworth County Independent/
Reporter, March 31, 2016)

ORDINANCE NO. 3068

AN ORDINANCE PROVIDING FOR THE TOWING,
IMPOUNDING AND STORAGE OF VEHICLES; PROVING FOR A LIEN ON IMPOUNDED MOTOR VEHICLES AND
SETTING COSTS ASSOCIATED THEREWITH IN THE CITY OF ELLSWORTH, KANSAS.

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF ELLSWORTH, KANSAS:
SECTION 1. AUTHORITY TO TOW OR IMPOUND WITHOUT NOTICE TO OWNER.
Any police officer is authorized to have removed and towed away by commercial towing service to an impound lot or other safe place designated by the city, without notice to the owner or lawful custodian of such vehicle, all vehicles found under any of the following circumstances:
(1) When any vehicle upon a street is so disabled or unattended so as to constitute an obstruction to traffic and the person or persons in charge of the vehicle cannot safely operate the vehicle or are unable to provide for its timely removal;
(2) When any vehicle is parked in such a manner as to constitute a hazard or obstruction to the safe movement of traffic;
(3) When any vehicle creates an emergency situation in which damage to property or personal injury is likely to occur if the vehicle is not removed;
(4) When the operator of any vehicle is arrested and taken into custody by the police department and such vehicle would thereby be left unattended and create a hazard or obstruction to the safe movement of traffic;
(5) When any vehicle is found being driven on the streets and is not in proper or safe condition to be driven and cannot be safely removed by the owner or operator;
(6) When the driver is injured in an accident and is unable to provide for its removal;
(7) When any vehicle has accumulated three (3) or more parking citations and the fines are more than thirty (30) days past due;
(8) When any vehicle is reported or determined to be stolen and is recovered;
(9) When any vehicle is subject to seizure as evidence in a criminal prosecution; or
(10) When any vehicle is subject to seizure or forfeiture under the laws of this state or federal law.
SECTION 2. PUBLIC NUISANCE VEHICLES.
(a) A vehicle is declared to be a public nuisance when it obstructs the safe movement of traffic or creates an emergency situation in which damage to property or personal injury is likely to occur if the vehicle is not removed.  As a public nuisance vehicle,  any police officer or other authorized city employee may cause such vehicle to be removed and impounded as set forth in pursuant to this chapter.  
(b) Whenever a motor vehicle or bicycle is left legally parked on public property but is not a public nuisance vehicle, the subject vehicle shall not be removed without either:   
(1) Personally notifying the owner of the violation and giving the owner a reasonable time to move said vehicle or pay all outstanding fines; or
(2) Placing on its windshield or in another prominent location a sticker or placard indicating the vehicle is in violation of this chapter and that it will be removed at the owner's cost after seventy-two (72) hours from the time the sticker or placard was attached to the vehicle. The sticker or placard shall include such other information as the chief of police determines is necessary.  
SECTION 3. PERSONAL PROPERTY IN TOWED VEHICLES.
The owner of a vehicle towed pursuant to this chapter shall, upon demonstrating proof of title or registration, be given access to all personal property in the vehicle for a period of forty-eight (48) hours after the vehicle has been towed.  Personal property shall be released to the owner during this person at no charge.  Any personal property within the vehicle, not released in the first forty-eight (48) hours need not be released to the owner thereof until the reasonable or agreed charges for such recovery, transportation or safekeeping have been paid, or satisfactory arrangements for payment have been made, except for personal medical supplies which shall be released to the owner thereof upon request.  All personal property not returned to the owner shall be sold at the auction as authorized in this chapter.  No towing contractor shall prohibit or refuse to allow the owner of a vehicle towed pursuant to this chapter to retrieve medicine or other medical supplies from the towed and stored vehicle at any time.
SECTION 4. NOTICE AFTER IMPOUNDMENT.
If reasonably possible, whenever any motor vehicle is towed and impounded pursuant to this chapter, notice shall be given to the owner or person entitled to custody of the motor vehicle that (1) such vehicle has been towed and impounded; (2) the reasons for the tow; (3) how the vehicle may be recovered, including the right to a hearing as set out in Section 6; and (4) that unless the owner takes action within thirty (30) days from the date of receipt or the notice, proceedings may be instituted to sell the motor vehicle. A person is not entitled to custody of the motor vehicle or personal property found in the vehicle if a court order has been issued to hold such vehicle or personal property for the purpose of a criminal investigation or for use as evidence at a trial.  If a court orders any vehicle or personal property to be held for the purpose of a criminal investigation or for use as evidence at a trial, then such order shall be in writing, and the court shall access as costs the reasonable or agreed charges for the protection, storage or safekeeping accrued while the vehicle or personal property was held pursuant to such written order.  Sale shall be pursuant to Kansas law to cover any costs accrued as a result of the towing and impounding. When feasible, the notice shall be provided to the owner or person entitled to custody of the motor vehicle at the time the motor vehicle is towed and the officer providing the notice shall obtain written acknowledgment of receipt of the notice. If notice cannot be provided to the owner or person entitled to custody of the motor vehicle at the time the motor vehicle is towed, notice shall be made by certified mail with return receipt requested. Notice by certified mail shall be mailed to the owner of vehicles displaying Kansas registration plates no later than close of business of the second business day after the towing. The notice shall be mailed to the owner of vehicles not displaying Kansas registration plates no later than close of business of the second business day after ownership is determined. The police department shall use reasonable diligence in determining the titled or registered owner of the vehicle.
SECTION 5. RECOVERY PROCEDURES.
(a) All motor vehicles towed and impounded pursuant to this chapter shall be surrendered to the owner or person entitled to custody of the vehicle subject to the provisions of subparagraph (b) herein, upon presentation of the following to the towing contractor where the vehicle is impounded:
(1) Proof of ownership of the vehicle by lawful title or other proof of lawful entitlement to the vehicle;
(2) Proof of liability insurance on the vehicle as required by the laws of the state of Kansas;
(3) Proof of current registration of the vehicle as required by the laws of the state of Kansas;
(4) Payment of all storage charges and towing fees incurred in the towing and impounding of the vehicle unless otherwise relieved of that requirement by application of the hearing provisions set forth section 38-56 and payment of all parking fines.
(b) Should a person seeking release of a motor vehicle impounded pursuant to this chapter fail to present proof of current registration and/or proof of insurance, the vehicle will not be released to be driven away from the impound lot, but the vehicle shall be released to be towed from the tow lot if proof of ownership is shown and all storage charges, towing charges, and parking fines are paid.   
(c) Vehicles towed pursuant to subsection (10) of Section 1 shall be disposed of pursuant to the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et. seq. and amendments thereto.
SECTION 6. HEARING PROCEDURES.
(a) Owners or persons entitled to the lawful custody of motor vehicles impounded pursuant to this chapter who wish to contest the validity of the motor vehicle tow may request a hearing for such purpose by notifying the clerk of the municipal court in writing. The request shall state the grounds upon which the person requesting the hearing believes the impoundment invalid or unjustified. Absent exigent circumstances, such request must be made no later than fourteen (14)  business days from receipt of the notice of impoundment.
(b) A hearing for the purpose of determining the validity of the tow shall be held by the municipal court within fourteen  (14) business  days after such hearing is requested. The time of the hearing shall be set by the clerk of the municipal court.
(c) Pending the hearing, the owner or person lawfully entitled to custody of any vehicle impounded pursuant to this chapter may retrieve the impounded vehicle upon posting bond with the clerk of the municipal court in the amount of the towing charges, storage fees and, if applicable, parking fines. Upon showing to the commercial tow service proof of the posting of the bond, the motor vehicle shall be released immediately. If a bond is not posted, the vehicle shall remain in storage until the requested hearing is held.
(d) If the municipal court judge determines the vehicle was lawfully towed pursuant to this chapter, then all charges shall be paid by the owner or person lawfully entitled to custody of the vehicle. The charges may be paid for partly or in whole by the bond, if posted, and any surplus bond money shall be returned.
(e) If the municipal court judge determines the vehicle was not lawfully towed pursuant to this chapter, the municipal court judge shall order the immediate release of the vehicle to its lawful owner without costs, and any bond posted shall be returned.
(f) Should any owner or person lawfully entitled to custody of an impounded vehicle post bond but fail to appear after being notified of the time for the hearing, the bond shall be forfeited.
SECTION 7. ABANDONED VEHICLES.
(a) Whenever any motor vehicle or bicycle is left in one place and unattended upon any street, highway or other public place in the city for more than seventy-two (72)  hours, the police chief is authorized to cause such motor vehicle or bicycle to be removed to a proper and suitable place of safety for storage where the same shall be kept pending disposition as provided for in subsections (b) through (d) of this section.
 b) Any motor vehicle which has been impounded as provided in this section for thirty (30) days or more shall be disposed of in the following manner: If such a motor vehicle or bicycle has displayed thereon a registration plate issued by the state division of vehicles and has been registered with such division or has been registered with the police department of the city, as the case may be, the police chief shall cause a determination to be made as to the address of the registered owner thereof. He shall check with the office of the register of deeds of the county where the registered is shown to reside for the purpose of determining the holder of any lien upon such motor vehicle. He shall use all reasonable diligence in determining the title owner, or if from a non-titled state, the registered owner, of the vehicle. Thereafter, the police chief shall cause to be mailed a notice by certified mail to all registered owners and any lienholders thereof stating that, if the owner or lienholder thereof does not claim motor vehicle or bicycle and pay the removal and storage charges thereon incurred by the city within fifteen (15) days from the date of the mailing of the notice, such vehicle or bicycle will be sold by the city at public auction to the highest bidder for cash.
(c) After fifteen (15) days from the date of mailing notice, the police chief or his designated agent, shall cause to be published in the official city newspaper a notice for two consecutive weeks, which notice shall describe the vehicle or bicycle by name of maker, model, serial number, owner and lienholder (if known) and stating that the same has been impounded by the city and that the same will be sold at public auction to the highest bidder for cash if the owner or lienholder thereof does not claim the same within ten days from the date of the second publication of the notice and pay the removal and storage charges and publication costs incurred by the city. All sales of vehicles and bicycles as hereinabove provided shall be at public auction to the highest bidder for cash and all moneys derived from the sale of such vehicles and bicycles, after payment of the expenses of the sale, shall be paid to the general fund of the city.
(d)    Upon sale of any motor vehicle at public auction pursuant to subsection (c) of this section, and upon the request of the purchaser thereof, the police chief is authorized to cause the filing of proof of such sale with the state Division of Vehicles and secure a certificate of title to such motor vehicle in the name of the purchaser.
SECTION 8. IMPOUNDMENT AND STORAGE CHARGES.
Whenever a vehicle is impounded by the police department under the provisions of this chapter, or is otherwise properly seized, said vehicle may be stored at a location owned by the City of Ellsworth.  Before the vehicle is released, the owner thereof shall pay all costs of impound and storage fee as determined in the city’s comprehensive fee schedule. Payment for towing shall be determined by the commercial towing company, however said tow fees may not exceed those as set forth in the city’s comprehensive fee schedule.  Nothing in this section prohibits private towing companies or storage yards from storing such vehicles when arrangements are made with the owner and with the police department.  The wrecker or towing service shall report the location of such vehicle to local law enforcement within two (2) hours of such tow.  
 SECTION 9. REPEAL
All ordinances and parts of ordinances conflicting with the provisions of this ordinance are hereby expressly repealed.
SECTION 10. FORCE AND EFFECT
This ordinance shall take effect and be in full force from and after its passage by the Governing Body of the City of Ellsworth and publication in the official city newspaper.
Passed by the Governing Body of the City of Ellsworth this 28th day of March, 2016.

John J. Whitmer, Mayor
City of Ellsworth, Kansas

ATTESTED BY:

Patti Booher, City Clerk

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