City of Ketchikan, AK Chapter 14.50 IMPOUNDMENT

14.50.010 Impoundment authority.

The harbormaster is authorized to remove and impound, pursuant to the procedure provided for in KMC § 14.50.020, any boat or obstruction in the boat harbor under any of the following circumstances:

(a) When the applicable fees or charges set forth in Chapter 14.40 KMC due the city for the boat remain unpaid for 30 days after such became due.

(b) Any boat or obstruction which is in violation of KMC § 14.20.070 (rules for loading areas), 14.30.010(a) (nuisances; unseaworthy or derelict vessels), 14.30.010(c) (unattended vessel obstructing harbor, disabled vessel, vessel moored in reserved mooring space without authority), 14.30.010(e) (other nuisances), or which poses a clear and present danger to the public health, safety, or welfare.

(c) Any boat that has not been removed from the harbors upon termination of moorage under KMC § 14.30.020(c).

(Ord. 818 § 2, 1975; Ord. 825 § 3, 1975; Ord. 1114 § 25, 1987; Ord. 1682 § 46, 2011)

14.50.020 Impoundment – Procedure and disposition.

(a) As to any boat or obstruction proposed to be impounded pursuant to KMC § 14.50.010(a) or (c), by or at the request of the city, its agents or employees, a person in lawful possession of the boat shall have the right to a pre-impoundment administrative hearing to determine whether there is cause to impound the boat under applicable local, state or federal law, ordinances, rules or regulations, provided such person files a written request for such hearing with the harbormaster at the harbormaster's office not later than five calendar days after the completion of service of the notice of proposed impoundment issued pursuant to subsection (c) of this section.

(b) As to any boat or obstruction impounded pursuant to KMC § 14.50.010(b), by or at the request of the city, its agents or employees, a person in lawful possession of the boat or obstruction shall have the right to a post-impoundment administrative hearing to determine whether the impoundment was proper under applicable local, state, or federal law, ordinances, rules or regulations, provided such person files a written request for such hearing with the harbormaster at the harbormaster's office not later than five calendar days after the completion of service of the notice of impoundment issued pursuant to subsection (c) of this section. The right to a post-impoundment hearing shall be deemed waived if not timely requested as provided herein, and upon such waiver the harbormaster may proceed with disposition of the boat or obstruction by sale, destruction or other disposition as authorized by this title, unless the boat or obstruction is redeemed as provided in subsection (j) of this section.

(c) Notice to Owner. Not later than five calendar days prior to the impoundment of any boat or obstruction pursuant to subsection (a) of this section, the harbormaster shall cause a notice of such action proposed to be taken by the city to be posted on the boat or obstruction proposed to be impounded, in the harbormaster's office, in the city clerk's office, and on a board located outside of the harbormaster's office. Immediately upon the impoundment of any boat or obstruction pursuant to subsection (b) of this section, the harbormaster shall cause a notice of such action taken by the city to be posted on the boat or obstruction so impounded in the harbormaster's office, in the city clerk's office, and on a bulletin board located outside the harbormaster's office. A copy of the notice of proposed impoundment, or notice of impoundment, as applicable, shall also be given to the owner of the boat or obstruction, if known, either by personal delivery or certified mail, return receipt requested, mailed to the owner's last known address. Service of notice by personal delivery shall be complete on delivery; service by mail shall be deemed complete on the delivery date certified by the postal service on the return receipt. Proof of the giving of notice in either manner may be made by affidavit of the person giving notice by personal delivery or by mail, naming the person to whom the notice was given, and, if by mail, the address, and specifying the time, place and manner of giving notice. If the boat or obstruction is documented, the applicable notice will also be mailed to the U.S. Coast Guard Documentation Officer of the port of documentation, if such port can be reasonably ascertained.

(d) Contents of Notice. The notice of proposed impoundment and the notice of impoundment referred to in subsection (b) of this section shall contain the following information:

(1) A description of the boat or obstruction, its name and number, if any, and its location;

(2) The name and address of the owner, if known;

(3) The grounds for impoundment and, if the boat or obstruction has been impounded, the date of such impoundment;

(4) State that if a written request for a hearing is filed with the harbormaster at the harbormaster's office within five calendar days after the completion of service of the notice, a hearing will be conducted within 24 hours, excluding Saturdays, Sundays, and city holidays, to determine whether there is cause to impound the boat or obstruction or, if the boat or obstruction has been impounded, whether the impound was proper under applicable local, state or federal law, ordinances, rules and regulations, unless the right to a hearing within such 24-hour time period is waived;

(5) State that the right to a hearing shall be deemed waived if not timely requested as provided herein and state that upon the waiver of the right to a hearing, the harbormaster may proceed with impoundment and disposition of the boat or obstruction by sale, destruction or other disposition as authorized by this title;

(6) The notice of proposed impoundment shall state that if the boat or obstruction is impounded and is not redeemed within 30 days after the date of service of notice of such proposed impoundment, title to the boat or obstruction, and its contents, shall vest in the city and the boat or obstruction, and its contents, will be sold or otherwise disposed of as provided in this title;

(7) The notice of impoundment shall state that if the boat or obstruction is not redeemed within 30 days after the date of service of such notice, title to the boat or obstruction, and its contents, shall vest in the city and that the boat or obstruction, and its contents, shall be sold or otherwise disposed of as provided in this title.

(e) Hearing.

(1) A pre-impoundment or a post-impoundment hearing, as applicable, shall be conducted before a hearing officer designated by the city manager within 24 hours after receipt of a written request therefor from the person seeking the hearing unless such person waives the right to a hearing or has been granted a hearing delay by the hearing officer. Saturdays, Sundays, and city holidays shall be excluded from the calculation of the 24-hour period. The hearing officer may not have participated in the decision under review. The issue before the hearing officer in a pre-impoundment hearing shall be whether there is cause to impound the boat or obstruction in question. "Cause to impound" shall mean such a state of facts as would lead a person of ordinary care and prudence to believe that there was a violation of local, state, or federal law, ordinances, rules or regulations rendering the boat or obstruction subject to impoundment. The issue before the hearing officer in a post-impoundment hearing shall be whether the impoundment was proper under applicable local, state or federal law, ordinances, rules or regulations. The hearing officer shall conduct the hearing in an informal manner and shall not be bound by technical rules of evidence. The proceedings at the hearing shall be recorded.

(2) The hearing officer may grant a hearing delay if the party requesting the delay presents good cause for the delay. If the person requesting the hearing, or other authorized person on his behalf, fails to appear for a scheduled hearing and a hearing delay has not been granted, such failure to appear shall be deemed a waiver of the right to a hearing, and upon such waiver the harbormaster may proceed with impoundment and disposition of the boat or obstruction by sale, destruction or other disposition as authorized by this title, unless the boat or obstruction is redeemed as provided in subsection (j) of this section.

(3) The hearing officer shall render a written decision within 48 hours after the conclusion of the hearing which shall state the reasons for the determination and indicate the evidence relied upon. Saturdays, Sundays, and city holidays shall be excluded from the calculation of the 48-hour period. A copy of such decision shall be provided to the harbormaster, the owner of the boat or obstruction, if the owner's name and address is known, and the person who requested the hearing. The hearing officer's decision shall in no way affect any other proceedings brought under this title or any criminal proceedings in connection with the impound in question and any proceedings pursuant to this title or criminal charges relating to such events may only be challenged in the appropriate court.

(4) If, in the case of a pre-impoundment hearing, the hearing officer determines that there is cause to impound the boat or obstruction, the harbormaster may, upon receipt of the decision, proceed with impoundment and disposition by sale, destruction or other disposition as authorized by this title, unless the boat or obstruction is redeemed as provided in subsection (j) of this section. Immediately upon such impoundment, the harbormaster shall cause a notice of such action taken by the city to be posted and delivered as provided in subsection (c) of this section for a notice of proposed impoundment and a notice of impoundment. Such notice shall contain the information set forth in subsections (d)(1), (2) and (3) of this section, and shall further state that if the boat or obstruction is not redeemed within 30 days after the date of service of such notice, title to the boat or obstruction, and its contents, shall vest in the city and the boat or obstruction, and its contents, will be sold or otherwise disposed of as provided in this title.

(5) If, in the case of a post-impoundment hearing, the hearing officer finds that the impoundment was not proper, the boat or obstruction shall be released to the owner or other authorized person and no charges shall be imposed for any towing or storage charges accrued prior to the time the hearing officer finds the impound improper. If the hearing officer finds that the impound was proper, the harbormaster may proceed with disposition of the boat or obstruction by sale, destruction or other disposition as authorized by this title, unless the boat or obstruction is redeemed as provided in subsection (j) of this section.

(f) Title. Title to an impounded boat or obstruction, and its contents, shall vest in the city 30 days after completion of service of the notice of impoundment; provided, that if a post-impoundment hearing is requested pursuant to subsection (b) of this section, title shall vest upon determination that the impoundment was proper.

(g) Notice of Sale. Any boat or obstruction impounded shall be held by the city before any sale or disposition for a period of not less than 30 days after the completion of service of the notice of impoundment, before any sale or disposition. The city shall, not less than 10 calendar days prior to the sale, publish in a newspaper of general circulation in the city a notice describing the boat or obstruction in general terms, its name and number, if any, the name and address of the owner, if known, its location, and the intention of the city to sell the boat or obstruction at public auction, on a day and at a place and time specified, for cash to the highest bidder.

(h) Sale. The proceeds of the sale shall be first applied to the costs of sale, including costs and charges for towing, hauling, storage and notice, then to moorage and service fees accrued, and the balance, if any, shall be held in trust, without accrual of interest, by the city for the owner of the boat or obstruction to claim. If such balance is not claimed within one year, it shall be deemed to be abandoned to the city and be deposited into the boat harbor facilities fund. Upon the sale being made, the city shall make and deliver its bill of sale, without warranty, conveying the boat or obstruction or contents to the buyer.

(i) Other Disposition. If at the public sale there are no bidders for the boat or obstruction, or its contents, the city may destroy, sell at private sale, or otherwise dispose of the boat or obstruction, or its contents, for which there were no bidders. Such disposition shall be without liability on the city for any damage done by virtue of such disposition or for any consequences of such action by the city, including loss of use or profits or other consequential, direct, or indirect damages.

(j) Redemption. A person who presents to the harbormaster satisfactory proof of ownership or right to possession of an impounded boat or obstruction or contents may redeem such boat or obstruction or contents at any time before the close of business on the last business day before the day of the sale or other disposition by paying to the harbormaster all fees, costs, and charges incurred or imposed by reason of impoundment or removal, including towing, hauling, mooring, storage and notice. Storage charges shall be $10.00 per day plus the current daily rates per foot per day if stored by the city, or such charges the city is required to pay for any commercial storage.

(k) Deposit in Contested Cases. If an impoundment conducted pursuant to subsection (a) of this section is contested, the aggrieved party may, in addition to the remedy of redemption as outlined in subsection (j) of this section, provided such person has requested a hearing pursuant to subsection (b) of this section, obtain return of the boat or obstruction or contents impounded upon tender of one of the following forms of security pending outcome of the hearing to be conducted as provided in subsection (e) of this section:

(1) A surety bond in an amount equal to any fees due and owing plus costs incurred in impounding the boat or obstruction or contents at issue in the proceedings (including for storage and towing);

(2) A cash deposit equal to 10 percent of the sum of: the fees at issue, if any, plus the costs incurred in impounding the boat or obstruction or contents (including for storage and towing) at issue in the proceedings; provided, however, that if the amount of such loss and costs is $100.00 or less the entire amount shall be deposited.

If the impoundment is found after hearing to have been improper, the security deposit provided under this subsection (k) shall be released. Should the impoundment be found after the hearing to have been proper, or in the event the person requesting the hearing has waived the right to a hearing pursuant to subsection (b) or (e)(2) of this section or otherwise, the cash security deposited pursuant to this subsection (k) shall be applied to the amounts due. Any amount remaining after payment of all amounts due shall be returned to the person making the deposit without interest.

(l) Securing. Any boat or obstruction impounded by the harbormaster shall be secured by chaining or otherwise mooring the same to a work float or other suitable stationary object or by removing, or having it removed, from the water and placed in city or commercial land storage with all expenses and risks of haul-out and storage to be borne by the owner or other person responsible for such boat or obstruction.

(m) Additional Remedies. Nothing in this title shall preclude the city from pursuing any and all remedies otherwise available at law or in equity in addition to those set forth herein.

(Ord. 818 § 2, 1975; Ord. 1114 § 26, 1987; Ord. 1359 § 8, 1996)