FOR IMMEDIATE RELEASE
May 13, 2008
CONTACT:
ACLU of Florida media office: (786) 363-2737 or media@aclufl.org
ACLU of Florida Brevard Chapter: (321) 768-6262
PALM BAY, Fla. – The American Civil Liberties Union of Florida’s Brevard Chapter today sent a letter to the Palm Bay Mayor and City Council Members warning that a proposed ordinance that would provide for vehicle impoundment is overbroad and should not be approved.
“If passed, this ordinance will endanger the property rights of Palm Bay residents,” said Kevin Aplin, Vice President of the Brevard Chapter of the ACLU of Florida. “Forfeiture schemes in general violate the fundamental principle that the government must prove a person guilty before depriving them of liberty.”
The ordinance, which voted four to one in favor at first reading, will come up on second hearing this Thursday, May 15. Concerned Citizens are encouraged to attend speak at the meeting, which will be at 7PM this Thursday at 120 Malabar Rd., SE Palm Bay, FL 32907.
A copy of the letter is below:
May 13, 2008
To the Mayor and City Council Members of the City of Palm Bay
Weare writing to you with regard to proposed ordinance number 2008-38 that would provide for the impoundment of vehicles involved in specified offenses.
The ACLU of FL Brevard Chapter urges the Council not to establish a harsh and overbroad local forfeiture operation that places at risk basic individual and property rights and is inconsistent with fundamental principles of fairness and due process that are the hallmarks of our system of justice.
The Florida Contraband Forfeiture act already provides law enforcement with adequate tools to seize property used or purchased in the commission of serious crimes.
If we have a patchwork of cities creating their own and different standards for when a vehicle can be seized, it will be next to impossible for a citizen to know when driving from town to town what type of offenses that may lead to vehicle seizure, and what type of rights they may have in quasi judicial proceedings that may result in the loss of their private property.
This ordinance gives too much power and discretion to law enforcement to deprive persons accused of committing relatively minor offenses of their private property
Some specific problems with this proposed ordinance are that an owner of a vehicle is given only five days after receipt of written notice of the vehicles seizure and impoundment in which to request a preliminary hearing. This is woefully inadequate. For example the owner may receive the notice and be leaving for a business trip or vacation that day, or may not have had time within the five days to consult with a legal representative
The hearing also proposes to allow hearsay evidence to be admissible, and the city can prevail with a preponderance of the evidence. The city should consider whether these weaker standards of evidence are appropriate when deciding to deprive someone of their private property.
Will the city be providing interpreters, stenographers, and court reporters at these administrative hearings?
Depriving a citizen and possibly a family who may be innocent or cannot be proven guilty of any crime of their means of transportation is a very serious matter. The city in its zeal to reduce public nuisance may end up causing an owner or family members to lose their means of getting to work, their income, getting to medical appointments, or caring for an elderly relative.
What happens if an owner cannot afford to take time off from work to attend hearings, afford to hire legal representation and or cannot pay the towing charges and administrative fees?
If a vehicle owner is from out of town or from out of the state, the burden of requesting and attending administrative hearings in order to retrieve their private property may be too burdensome for many. This may cause many to either ultimately forfeit their vehicle and or not to contest the proceedings not because they are guilty of any misconduct but because it will be too onerous to travel to and or take time off to attend and understand the hearings.
Many impacted by this ordinance will not be able to afford legal representation and the ordinance makes no provision to provide council for the indigent. Arguably next to the potential for incarceration (which requires the appointment of counsel) the loss of one’s means of transportation in our society is probably the next most serious loss of personal freedom.
The ordinance also claims that it does not intend to be used to forfeit the vehicles of those driving in Palm Bay. However if someone does not or cannot pay the towing charges and administrative fee you are claiming authority under FS Chapter 705 to dispose of an unclaimed vehicle.
If the city and law enforcement are serious about reducing the specified public nuisance, that can be accomplished by increasing patrols, issuing more citations and proving the accused guilty beyond a reasonable doubt in a criminal court.
Reducing public nuisance offenses are a legitimate goal of a city and law enforcement. However the constitutional rights of its citizens are equally important. When considering whether to enact a scheme to deprive people of their private property we believe the utmost caution and standards of due process and fairness should apply.
Sincerely,
Kevin Aplin
Vice President
ACLU of FL Brevard Chapter
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