Chapter 9.15
PROPERTY SEIZURE AND FORFEITURE
Sections:
9.15.060 Institution of legal proceedings.
9.15.070 Disposition of property.
9.15.080 Nonconsensual use of property for illegal activity.
9.15.010 Title.
This chapter shall be known as the “Forfeiture Ordinance of the City of Fairview”. (Ord. 9-1987 § 1)
9.15.020 Definitions.
As used in this chapter, unless the context requires otherwise:
A. “Controlled substances” are those terms defined in ORS 475.005(6) (1987 ed.) except that this shall not include less than one avoirdupois ounce of marijuana.
B. “Deliver or delivery” is that term defined in ORS 475.005(8) (1987 ed.).
C. “Facilitate” means that the property must have some substantial connection to, or be instrumental in, the commission of the underlying illegal activity which this chapter seeks to prevent.
D. “Gambling” is the term defined in ORS 167.117(4) (1985 ed.).
E. “Illegal activity” means:
1. Gambling or promotion of gambling except as specifically permitted by statute; or
2. The manufacture or delivery of controlled substances; or
3. The possession of controlled substances with the intent to distribute.
F. “Manufacture” is that term defined at ORS 475.005(14) (1987 ed.).
G. “Marijuana” is that term defined at ORS 475.005(15) (1987 ed.).
H. “Possession of controlled substances with the intent to distribute” is that term defined at 21 USC 841(a) (1976 ed., published 1981).
I. “Production” is that term defined at ORS 475.005(19) (1987 ed.).
J. “Promotion of gambling” is that term defined at ORS 167.117(10) (1985 ed.).
K. “Conspiracy” is that term defined at ORS 161.450 (1987 ed.). (Ord. 9-1987 § 2)
9.15.030 Policy and purpose.
A. The city council of the city of Fairview finds that:
1. Property that is seized from arrested persons which constitutes the proceeds or instrumentalities of a crime are generally returned to the criminal upon disposition of the charge.
2. These instrumentalities and proceeds are often used to again commit the same or another crime and the return of such property thus serves to encourage and perpetuate the commission of crime in the city of Fairview.
B. The city council of the city of Fairview therefore declares that to protect the safety and welfare of city of Fairview residents, it is in the best interest of the city to:
1. Cripple illegal drug trafficking and narcotics activities within this city by depriving narcotics dealers, and those persons dealing with them, of the instrumentalities and proceeds of their trade; and
2. Seize gambling equipment, records and the proceeds of illegal gambling activity; and
3. Otherwise deter illegal activity and remove the operating instrumentalities, profits and proceeds of certain crimes from criminals; and
4. Use the forfeited property to further fund general city purposes, including law enforcement and criminal prosecution functions. (Ord. 9-1987 § 3)
9.15.040 Forfeiture.
Any person who engages in or conspires to engage in illegal activity within the city of Fairview shall forfeit to the city of Fairview the following property, and no property right shall exist in them:
A. All controlled substances which are intended for or have been manufactured or delivered as defined in FMC 9.15.020.
B. All raw materials, products, containers, equipment, books, records, research materials (including formulas, microfilms, tapes and data) of any kind which are intended for use, to manufacture, compound, store, process or deliver any controlled substances.
C. All conveyances, including aircraft, vehicles or vessels which are used to manufacture or deliver or in any manner to facilitate the manufacture or delivery or any controlled substance or any such conveyance which is used to transport or conceal any controlled substance.
D. All monies, negotiable instruments, securities or other things of value furnished or exchanged or intended to be furnished or exchanged by or to any person to facilitate any illegal activities and all proceeds or profit traceable to such furnishment, exchange or illegal activity.
E. All proceeds, profits and things of value including residential property traceable to any illegal activity.
F. All equipment, materials or records of any sort that are used, or intended for use to facilitate any illegal gambling activity.
G. 1. All real property which is:
a. Used to manufacture or deliver or distribute any controlled substance; or
b. Used to facilitate the promotion of gambling as defined in ORS 167.127 (1987 ed.).
2. This section shall not apply to residential real property which is used to facilitate the manufacture of less than one ounce of marijuana when dried.
H. This chapter shall not apply to those unlawful acts defined in ORS 166.720(1), (2) and (3) (1987 ed.). (Ord. 9-1987 § 4)
9.15.050 Seizure.
Any property subject to forfeiture to the city of Fairview under this chapter may be seized by any peace officer on behalf of the city without issuance of court process when:
A. The seizure is incident to an arrest or search under a search warrant or an inspection under an administrative search; or
B. The property subject to seizure has been the subject of a prior judgment in favor of the city of Fairview in a forfeiture proceeding under this chapter; or
C. A police officer lawfully seizes the property under ORS 133.525 to 133.703 (1987 ed.) and has probable cause to believe that the property has been used or is intended for use in or to facilitate illegal activity as defined by this chapter. (Ord. 9-1987 § 5)
9.15.060 Institution of legal proceedings.
A. In the event of a seizure under this chapter, and upon the recommendation of the chief of police, the city attorney, acting in the name of the city, may institute a forfeiture proceeding to obtain a judgment of forfeiture against the seized property.
B. The proceedings shall be instituted within 180 days of the seizure for purposes of this chapter, and in accordance with the Oregon Rules of Civil Procedure and the Oregon Rules of Evidence relating to civil actions. The defendant or the owner of the property may demand a trial by jury in any civil action brought pursuant to this section.
C. The city attorney shall cause notice of any forfeiture proceeding to be served by certified mail to all parties with a recorded security interest in the property to be forfeited.
D. The city attorney shall be entitled to deduct from the proceeds any legal fees, costs and expenses incurred in litigation resulting in a forfeiture hereunder. (Ord. 9-1987 § 6)
9.15.070 Disposition of property.
A. Prior to obtaining any forfeiture judgment, any money, securities and negotiable instruments that are not retained by the police for evidentiary purposes may be held by the city recorder pending the outcome of the forfeiture proceedings.
B. Seized property other than money, securities and negotiable instruments shall be kept in the custody of the city recorder for safekeeping until a forfeiture judgment is obtained or the matter of concern concluded.
C. When a judgment of forfeiture is obtained under this chapter, the property shall be disposed of as follows:
1. At the request of the chief of police, property other than cash, securities or negotiable instruments may be retained for official use by the chief of police for criminal justice and law enforcement purposes.
2. Cash and proceeds from securities and negotiable instruments shall be forfeited to the city of Fairview and placed in the general fund to be used for general city purposes.
3. When the chief of police determines that the property, other than cash or proceeds from securities or negotiable instruments, will no longer be used for law enforcement purposes, it shall be sold at a public auction, or at the discretion of the city council, sold or disposed of on such terms as the council shall direct. Any net proceeds of the sale shall be placed in the general fund to be used for city purposes.
4. The city recorder shall give notice of the aforementioned public sale by posting written notice of the sale in three public places within the city, at least 10 days before the sale. The notice shall describe the property and shall state the time and place of public sale at which the property may be purchased by the highest bidder, for cash.
5. The city recorder may deduct reasonable costs incurred in conducting the sale. The city recorder may also cancel the sale if the bids are deemed inadequate by the city recorder.
6. Members of city government, including officials, employees, and immediate family members, shall not be allowed to bid at any of these sales. (Ord. 9-1987 § 7)
9.15.080 Nonconsensual use of property for illegal activity.
No property shall be forfeited under this chapter to the extent of the interest of an owner or holder of a recorded security interest who did not consent to or was not aware of the use of the property in the illegal activity. (Ord. 9-1987 § 8)