§ 517-5. Seizure of vehicles of unlicensed home improvement contractors.

A. 

Warrantless seizures.

(1) 

Any vehicle, and any tools of the trade contained therein, which constitutes an instrumentality of an offense may be seized by any peace officer, acting pursuant to his or her special duties, or police officer, upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided. Probable cause is deemed to exist if a complaint is investigated by the Department of Consumer Affairs and is determined to be substantiated.

(2) 

Notice of seizure.

(a) 

The seizing agency shall send notification of the seizure of the property to all titled owners and registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral magistrate to determine whether probable cause existed for the warrantless seizure of the defendant's property, whether the County is likely to succeed on the merits on the forfeiture action, whether retention is necessary to preserve the property from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceedings, including, but not limited to, issuance of a restraining order prohibiting the sale, transfer, or loss of the property with imposition(s) of appropriate penalties for violation of said restraining order; taking of a bond; and/or use of an interlock device.

(b) 

When a hearing is held, the neutral magistrate shall review the documents supporting the seizure and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof as set forth in Subsection A(2)(a) of this section. If the seizing agency has sustained its burden of proof, the neutral magistrate shall authorize the continued retention of the property by the seizing agency pending a judicial determination of any civil forfeiture action. Nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return.

(c) 

The Suffolk County Executive shall designate neutral magistrates to conduct hearings in accordance with this Subsection A(2).

(3) 

Any action for forfeiture under Subsection A(1) of this section shall be commenced, in the manner prescribed by the New York Civil Practice Law and Rules § 304, within 180 days after the seizure. Failure to commence such an action within 180 days after the seizure shall result in the immediate return of the property to its lawful owners as of the time of the seizure.

B. 

Civil authority.

(1) 

A civil action shall be commenced by the County Attorney, or her or his designee, against a defendant to forfeit seized property which constitutes the instrumentality of an offense or to recover a money judgment in an amount equivalent in value to the property which constitutes the instrumentality of an offense, if it can be demonstrated that the property was seized in connection with an offense by an individual who has been found by the Department to be in violation of Article II of Chapter 563 of the Suffolk County Code at least once before within a period of 10 years prior to the offense at issue, except that:

(a) 

No property shall be forfeited under the provisions of this subsection by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than the owner while the subject property was unlawfully in the possession of a person other than the owner.

(2) 

All actions commenced under this section shall be governed by the procedures enumerated in Article 13-A of the New York Civil Practice Law and Rules, where not specifically outlined herein.

(3) 

No property shall be forfeited under this section unless the County Attorney, or her or his designee, produces clear and convincing evidence that a non-home-improvement contractor defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the defendant. The non-home-improvement contractor defendant must take all prudent steps to prevent the illegal use of his or her property, and willful disregard by the non-home-improvement contractor defendant of the acts giving rise to forfeiture shall not constitute a defense to such forfeiture.

(4) 

Any action to forfeit seized property under Subsection B(1) of this section shall be commenced within 180 days after the seizure when the property has first been seized under Subsection A of this section, and said action shall be civil, remedial, and in rem in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. An action under this section shall not be deemed a criminal proceeding of any type. The action shall be commenced in the manner prescribed by the New York Civil Practice Law and Rules § 304. Potential claimants to the seized asset shall be served with a summons and notice or summons and verified complaint. No property shall be forfeited without service of notice upon potential claimants to the seized asset and the opportunity for a prompt post-seizure hearing given prior to such forfeiture.

(5) 

In order to establish its case in any action commenced under this chapter, the County shall demonstrate, by clear and convincing evidence, that the property in question is subject to forfeiture at the time of the commission of the offense, as defined in this article, precipitated the seizure, or the commencement of an action for the seizure of the property, without regard to the final determination of any actions brought against the individual for such offense. The non-home-improvement contractor defendant shall then have the burden of proving a lack of knowledge or lack of consent on behalf of said non-home-improvement contractor defendant sufficient to constitute a defense to such forfeiture.

(6) 

If, after a seizure of property has been made under Subsection A of this section, it is determined that the non-home-improvement contractor defendant whose property which constitutes an instrumentality of an offense, or the individual whose actions precipitated the seizure, has not been previously found to be in violation of Article II of Chapter 563 of the Suffolk County Code by the Department in a ten-year period, then the property which constitutes an instrumentality of an offense so seized shall immediately be returned to its lawful owner as of the time of seizure.

(7) 

All property seized pursuant to this section is subject to reasonable and customary towing, maintenance and daily storage fees as may be established by the Suffolk County Police Commissioner. Such fees shall be payable to the seizing agent prior to the release of said property.

C. 

Disposition of forfeited property and proceeds.

(1) 

Whenever property is forfeited under this section, the County Attorney, or her or his designee, shall sell such property which is not required to be destroyed by law and which is not harmful to the public.

(2) 

Any and all proceeds realized, collected or paid pursuant to the provisions of this section shall be transferred to the Home Improvement Contractors Restitution Fund.

D. 

Discretionary action.

(1) 

Nothing contained in this section shall require the County Attorney, or her or his designee, to commence a forfeiture action when, in her or his discretion, it is in the best interests of justice not to commence such an action.

(2) 

Nothing contained in this section shall require a court to order a forfeiture when it determines, in its discretion, that it is in the interests of justice not to do so.

E. 

Rules and regulations. The County Attorney shall issue and promulgate such rules and regulations as shall be necessary to implement the provisions of this section.

Added 8-4-2004 by L.L. No. 27-2004