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G41-07 • CITY OF ELGIN ORDINANCE NO. G41-07 AN ORDINANCE AMENDING CHAPTER 11.40, ENTITLED "SPECIAL STOPS REQUIRED; MISCELLANEOUS RULES OF THE ROAD" OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED PASSED BY THE CITY COUNCIL OF THE CITY OF ELGIN ON THIS 25th DAY OF JULY 2007 Published in pamphlet form by authority of the City Council of the City of Elgin, Kane and Cook Counties, Illinois, on this 27th day of July 2007. r STATE OF ILLINOIS ) ss. COUNTY OF KANE ) CERTIFICATE I, Diane Robertson, certify that I am the duly appointed and acting municipal clerk of the City of Elgin, Cook and Kane Counties, Illinois. I further certify that on July 25, 2007, the Corporate Authorities of such municipality passed and approved Ordinance No. G41-07, which provided by its terms that it should be published in pamphlet form. The pamphlet form of Ordinance No. G41-07, including the Ordinance and a cover sheet thereof, was prepared, and a copy of such Ordinance was posted in the municipal building commencing on July 27, 2007, and continuing for at least ten days thereafter. Copies of such Ordinance were also available for public inspection upon request in the office of the municipal clerk. DATED at Elgin, Illinois, on July 27, 2007 -`c- Asa is-cw■ Municipal lerk (SEAL) Ordinance No. G41-07 AN ORDINANCE AMENDING CHAPTER 11.40, ENTITLED "SPECIAL STOPS REQUIRED; MISCELLANEOUS RULES OF THE ROAD" OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED WHEREAS, the City Council of the City of Elgin finds that using motor vehicles in the commission of offenses relating to driving under the influence of alcohol or drugs, driving on a suspended or revoked license, driving without having been issued a valid license, and operating an excessively loud sound amplification system while driving a motor vehicle, create public nuisances which endanger the physical and emotional health and well-being of the community, and in other respects reduce the quality of the city's living environment; and WHEREAS, Section 11-60-2 of the Illinois Municipal Code (65 ILCS 5/11-60-2) provides that the corporate authorities of each municipality may define, prevent and abate nuisances; and WHEREAS, the City Council of the City finds and declares that using motor vehicles in the commission of offenses relating to driving under the influence of alcohol or drugs, driving on a suspended or revoked license, and driving without having been issued a valid license constitute public nuisances; and WHEREAS, Section 11-5-2 of the Illinois Municipal Code (65 ILCS 5/11-5-2) provides in part that the corporate authorities of each municipality may prevent noises in any public or private place; and WHEREAS, the City Council of the City finds and declares that operating excessively loud sound amplification system while driving a motor vehicle constitutes a public nuisance; and WHEREAS, the City of Elgin is a home rule unit pursuant to the Illinois constitution; and WHEREAS, the City of Elgin as a home rule unit, may exercise any power and perform any function relating to its government and affairs; and WHEREAS, the prevention and enforcement of offenses involving the use of motor vehicles to drive under the influence of alcohol or drugs, drive on a suspended or revoked license, drive without having been issued a valid license, and operate an excessively loud sound amplification system while driving a motor vehicle pertain to the government and affairs of the City of Elgin; and WHEREAS, the City Council of the City of Elgin finds and declares that motor vehicles used in the commission of offenses relating to driving under the influence of alcohol or drugs, driving on a suspended or revoked license, driving without having been issued a valid license, and operating an excessively loud sound amplification system while driving a motor vehicle should be made subject to seizure and impoundment and the payment of an administrative •. penalty, and that such seizures and impoundments are not intended to be conducted pursuant to the police department's community caretaking functions, but rather for the purpose of deterring and abating such offensive conduct by motor vehicle operators and motor vehicle owners. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. Incorporation of Recitals. The foregoing recitals are substantive and are hereby incorporated in this ordinance as though fully set forth herein. Section 2. That Section 11.40.095 of the Elgin Municipal Code, 1976, as amended, entitled"Sound Amplification Devices"be and is hereby further amended to read as follows: 11.40.095: VEHICLE SEIZURE AND IMPOUNDMENT: A. A motor vehicle, operated with the permission, express or implied, of the owner of record of that motor vehicle, that is used in connection with the following violations, shall be liable to the city for an administrative penalty in an amount not to exceed two hundred fifty dollars ($250.00), in addition to any towing and storage fees as hereinafter provided. 1. Driving while the driver's license, permit or privilege to operate a motor vehicle is suspended or revoked, in violation of Section 6-303 of the Illinois Vehicle Code (625 ILCS 5/6-303), as amended, pursuant to Illinois secretary of state action. 2. Driving under the influence of alcohol, drugs or intoxicating compounds, or any combination thereof, in violation of section 11-501 of the Illinois Vehicle Code (625 ILCS 5/11-501), as amended. 3. Operating a motor vehicle without having ever been issued a driver's license or permit, in violation of section 6-101 of the Illinois Vehicle Code (625 ILCS 5/6- 101), as amended. 4. Operating or permitting the operation of any sound amplification system located in a motor vehicle when the sound amplification system can be heard outside the motor vehicle from seventy five (75) or more feet when the motor vehicle is being operated upon a street, highway or roadway unless such system is being operated to request assistance or warn of a hazardous situation. This subsection shall not apply to authorized emergency vehicles. B. The applicability of this section and the fees for towing and storing a vehicle under this section shall be as follows: 1. This section shall not replace or otherwise abrogate any existing state or federal laws or city ordinances pertaining to vehicle seizure and impoundment, and these 2 penalties shall be in addition to any penalties that may be assessed by a court for any criminal damages. 2. This section shall not apply if the motor vehicle used in the violation was stolen at that time and the theft was reported to the appropriate police authorities within twenty-four(24)hours after the theft was discovered. 3. Fees for towing and storage of a motor vehicle under this section shall not exceed those approved by the city manager or chief of police for all towers authorized to tow motor vehicles for the police department. C. A motor vehicle that is used in the violation of subsection A of this section shall be subject to seizure and impoundment under this section. The owner of record of such vehicle shall be liable to the city for a penalty of two hundred fifty dollars ($250.00) in addition to fees for the towing and storage of the vehicle. For the purposes of this section, the "owner of record" of a motor vehicle is the record title holder as registered with the secretary of state. 1. Whenever a police officer has probable cause to believe that a motor vehicle is subject to seizure and impoundment pursuant to this section, the police officer shall provide for the towing of the motor vehicle to a facility controlled by the city or its agents. When the motor vehicle is towed, the police officer shall notify the person who is found to be in control of the motor vehicle at the time of the alleged violations, if there is such a person, of the fact of the seizure and of the motor vehicle owner's right to request a preliminary hearing to be conducted under this section. 2. Whenever the owner of a motor vehicle seized pursuant to this section requests a preliminary hearing within twelve (12) hours after the seizure, a deputy police chief of the city or his designee shall conduct such preliminary hearing within twenty four (24) hours after the seizure, excluding Sundays and holidays. All interested persons shall be given a reasonable opportunity to be heard at the preliminary hearing. The formal rules of evidence will not apply at the hearing. If, after the hearing, the deputy police chief or his designee determines that there is probable cause to believe that the motor vehicle was used in the violation of subsection A of this section he shall order the continued impoundment of the motor vehicle as provided in this section unless the owner of the vehicle posts with the city a cash bond in the amount of two hundred fifty dollars ($250.00) plus fees for towing and storing the motor vehicle. If the deputy police chief or his designee determines that there is no such probable cause, the motor vehicle will be returned without penalty or other fees. 3. Within ten (10) days after a motor vehicle is seized and impounded pursuant to this section, the city shall notify by personal service or by certified mail, return receipt requested, the owner of record of the date, time and location of a hearing that will be conducted pursuant to this section. The hearing shall be scheduled and 3 held, unless continued by order of the court or hearing officer, not less than fifteen (15) days and not more than forty five (45) days after the vehicle was seized. All interested persons shall be given a reasonable opportunity to be heard at the hearing. If after a hearing, it is determined by a preponderance of evidence that the motor vehicle was used in the commission of any of the violations described in subsection A of this section the motor vehicle shall continue to be impounded until the owner pays a penalty of two hundred fifty dollars ($250.00) plus fees for towing and storage of the motor vehicle. The penalty and fees shall be a debt due and owing the city. However, if a cash bond has been posted the bond shall be applied to the penalty. If it is determined at a hearing that the motor vehicle was not used in such a violation, the vehicle or cash bond shall be returned without penalty or other fees. Notwithstanding any other provision of this section, whenever a person with a lien of record against a motor vehicle impounded under this section has commenced foreclosure proceedings, possession of the motor vehicle shall be given to that person if he agrees in writing to refund to the city the net proceeds of any foreclosure sale, less any amount necessary to pay all lien holders of record, up to the total amount of penalties imposed under this subsection C. 4. Any motor vehicle that is not reclaimed within thirty (30) days after the expiration of the time during which the owner of record may seek judicial review of the city's action under this section, or the time at which a final judgment is rendered in favor of the city, or the time a final administrative decision is rendered against an owner of record who is in default, may be disposed of as an unclaimed motor vehicle as provided by law. Section 3. Severability. If any provision, clause, sentence, paragraph, section or part of this ordinance or application thereof to any person or circumstance, shall for any reason be adjudged by a court of competent jurisdiction to be unconstitutional or invalid, said judgment shall not affect, impair or invalidate the remainder of this ordinance and the application of such provision to other persons or circumstances, but shall be confined in its operation to the provision, clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered and to the person or circumstances involved. It is hereby declared to be the legislative intent of the City Council that this ordinance would have been adopted had such unconstitutional or invalid provisions, clause, sentence, paragraph, section or part thereof not been included Section 4. That all ordinances or parts of ordinances in conflict with the provisions of this ordinance be and are hereby repealed. Section 5. That this ordinance shall be in full force and effect upon its passage and publication in the manner provided by law. Ed Schock, ayor 4 Presented: July 25, 2007 Passed: July 25, 2007 Vote: Yeas: 6 Nays: 1 Recorded: July 26, 2007 Published: July 27, 2007 Attest: Diane Robertson, City erk 5