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Mulligan v. City of Hollywood10/1/2003
Today we consider the extent of municipal powers by ordinance to seize personal property used in the commission of a crime. In so doing, we also address whether a city's willingness to restore the property it has thereby seized, upon payment of an "administrative" fee, conduces to a finding of validity for such an ordinance. In the end we hold the ordinance in question invalid.
First we set the factual stage. The City of Hollywood (City) has adopted a vehicle "impoundment" ordinance. It purports to authorize the City to seize motor vehicles of those accused of violations of section 796.07, Florida Statutes - that is, offenses involving prostitution. According to the ordinance, a vehicle is subject to seizure whenever a police officer has probable cause to believe that the vehicle was used to facilitate prostitution. Ord. § 101.46(A)(3).
Upon seizure the vehicle is towed to a facility controlled by the City. The City then gives notice to the owner that the vehicle has been seized and that the owner has the right to a preliminary hearing. § 101.46(B)(1)-(3). The owner must request the hearing in writing within five days of the written notice. § 101.46(D)(1). The police chief is then required to schedule a hearing before another City official, called a "special master", within 96 hours. § 101.46(2).
At the preliminary hearing, the City has the burden to show probable cause to believe that the vehicle is subject to seizure. § 101.46(3). If the City official finds probable cause, the vehicle shall remain "impounded" unless the owner pays $500 plus towing and storage costs, or posts a bond in the same amount. § 101.46(4). The City must set a final hearing within 45 days from the date the vehicle was seized. § 101.46(e)(1).
The City has the burden at the final hearing to show by the greater weight of the evidence that the vehicle was properly seized under the ordinance and that the owner of the vehicle knew the vehicle was likely to be used to facilitate an act of prostitution. § 101.46(E)(2)(a), (b). If the City official finds that the City has carried its burden, the official enters a written determination that the owner is "civilly liable to the City for an administrative fee not to exceed $500, plus towing and storage costs." § 101.46 (E)(2)(b). The vehicle remains seized until and unless the penalty assessed by the official is paid. § 101.46(E)(2)(b).
Mulligan (owner) was arrested for offering to commit prostitution in violation of section 796.07. The City seized his vehicle under the authority of ordinance section 101.46. The official found probable cause and ordered him to pay $500 or forfeit the bond he had previously posted. He paid the fee, and his vehicle was returned to him. The owner then filed suit challenging the validity of the ordinance. The court certified a class of "all owners of motor vehicles impounded by the City of Hollywood under the City of Hollywood Code, section 101.46." Both parties moved for summary judgment.
The trial court's decision and rationale, omitting only formal parts, states as follows:
"The ordinance in question does not pass the `smell test.' In a somewhat similar context it was once noted that ` mproperly used, forfeiture could become more like a roulette wheel employed to raise revenue.fn1 Further, `there is strength ... in the contention that ... [the ordinance at issue] seems to violate that justice which should be the foundation of the due process of law required by the Constitution.fn2 However, this Court is constrained to follow precedent and uphold the practice in question, as the court just quoted did. Unfortunately, as Justice Thomas once noted, `the Federal Constitution does not
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