BILL ANALYSIS
AB 14
Page 1
Date of Hearing: March 17, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 14 (Fuentes) - As Amended: March 12, 2009
SUMMARY : Authorizes cities or counties to adopt local
ordinances declaring a motor vehicle to be a public nuisance
subject to impoundment for not more than 30 days upon a valid
arrest of a person who uses the vehicle in the commission or
attempted commission of specified prostitution crimes or illegal
commercial dumping and has one prior conviction for either of
those crimes. Specifically, this bill :
1)Requires that within two working days after impoundment, the
impounding agency shall send a notice by certified mail,
return receipt requested, to the legal owner of the vehicle,
at the address obtained from the department, informing the
owner that the vehicle has been impounded.
2)States the notice shall also include notice of the opportunity
for a post-storage hearing to determine the validity of the
storage or to determine mitigating circumstances establishing
that the vehicle should be released. The impounding agency
shall be prohibited from charging for more than five-days'
storage if it fails to notify the legal owner within two
working days after the impoundment when the legal owner
redeems the impounded vehicle.
3)Provides that the impounding agency shall maintain a published
telephone number that provides information 24 hours per day
regarding the impoundment of vehicles and the rights of a
legal owner and a registered owner to request a hearing.
4)Mandates the notice include all of the following information:
a) The name, address, and telephone number of the agency
providing the notice;
b) The location of the place of storage and description of
the vehicle, that shall include, if available, the model or
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make, the manufacturer, the license plate number, and the
mileage;
c) The authority and purpose for the removal of the
vehicle; and,
d) A statement that in order to receive a post-storage
hearing, the owners, or their agents, shall request the
hearing in person, writing, or by telephone within 10 days
of the date appearing on the notice.
5)States the post-storage hearing shall be conducted within 48
hours of the request, excluding weekends and holidays. The
public agency may authorize one of its own officers or
employees to conduct the hearing if that hearing officer is
not the same person who directed the seizure of the vehicle.
Failure of the legal and the registered owners, or their
agents, to request or to attend a scheduled hearing shall
satisfy the post-storage hearing requirement.
6)Requires the agency employing the person who directed the
storage to be responsible for the costs incurred for towing
and storage if it is determined in the post-storage hearing
that reasonable grounds for the storage are not established.
Any period during which a vehicle is subjected to storage
under an ordinance adopted pursuant to this bill shall be
included as part of the period of impoundment.
7)States the impounding agency shall release the vehicle to the
registered owner or his or her agent prior to the end of the
impoundment period under any of the following circumstances:
a) The driver of the impounded vehicle was arrested without
probable cause.
b) The vehicle is a stolen vehicle.
c) The vehicle is subject to bailment and was driven by an
unlicensed employee of a business establishment, including
a parking service or repair garage.
d) The driver of the vehicle is not the sole registered
owner of the vehicle and the vehicle is being released to
another registered owner of the vehicle who agrees not to
allow the driver to use the vehicle until after the end of
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the impoundment period.
e) The registered owner of the vehicle was neither the
driver nor a passenger of the vehicle at the time of the
alleged violation, or was unaware that the driver was using
the vehicle to engage in pimping or pandering, as
specified, or solicitation of prostitution.
f) A spouse, registered domestic partner, or other affected
third party objects to the impoundment of the vehicle on
the grounds that it would create a hardship if the subject
vehicle is the sole vehicle in a household. The hearing
officer shall release the vehicle where the hardship to a
spouse, registered domestic partner, or other affected
third party created by the impoundment of the subject
vehicle, or the length of the impoundment, outweigh the
seriousness and the severity of the act in which the
vehicle was used.
8)Provides that notwithstanding any provision of law, if a motor
vehicle is released prior to the conclusion of the impoundment
period because the driver was arrested without probable cause,
neither the arrested person nor the registered owner of the
motor vehicle is responsible for towing and storage charges
nor shall the motor vehicle be sold to satisfy those charges.
9)Requires that the registered owner or his or her agent be
responsible for all towing and storage charges related to the
impoundment except as otherwise provided.
10)States no lien sale processing fees shall be charged to the
legal owner who redeems the vehicle prior to the 15th day of
impoundment. Neither the impounding authority nor any vehicle
having possession of the vehicle shall collect from the legal
owner fees associated with towing a storage, as specified,
unless the legal owner voluntarily requests a post-storage
hearing.
11)Provides a person operating or in charge of a storage
facility where vehicles are stored, as specified, shall accept
a valid bank credit card or cash for payment of towing,
storage and related fees by a legal or registered owner or the
owner's agent claiming the vehicle. A credit card or debit
card shall be in the name of the person presenting the card.
The term "credit card" does not include one issued by a retail
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seller and is defined in the Civil Code.
12)Requires that if a person operating or in charge of a storage
facility, as specified, does not allow for the use of a credit
card or cash, he or she shall be civilly liable to the owner
of the vehicle or the person who tendered the fees for four
times the amount of the towing, storage, and related fees not
to exceed $500.
13)Mandates a person operating or in charge of the storage
facility, as specified, must have sufficient funds on the
premises during normal business hours to accommodate, and make
change for a reasonable monetary transaction.
14)States credit charges for towing and storage services shall
comply with relevant sections of the Civil Code. Law
enforcement agencies may include the costs of providing for
payment by credit when making agreements with towing companies
on rates.
15)States a vehicle removed and seized under an ordinance
adopted pursuant to this bill shall be released to the legal
owner of the vehicle or the legal owner's agent prior to the
end of the impoundment period if all of the following
conditions are met:
a) The legal owner is a motor vehicle dealer, bank, credit
union, acceptance corporation, or other licensed financial
institution legally operating in this state, or is another
person who is not the registered owner and holds a security
interest in the vehicle.
b) The legal owner or the legal owner's agent pays all
towing and storage fees related to the seizure and
impoundment of the vehicle.
c) The legal owner, or his or her agent, presents to the
law enforcement agency, impounding agency, person in
possession of the vehicle or any person acting on behalf of
those agencies, a copy of the assignment, as specified, a
release from the one responsible governmental agency, a
government-issued photographic identification card and any
one of the following as determined by the legal owner or
his or her agent: a certificate of repossession for the
vehicle; a security agreement for the vehicle, and; title
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showing proof of ownership, as specified.
d) The law enforcement agency, impounding agency, or any
person acting on behalf of those agencies may require the
agent of the legal owner to produce a photocopy or fax of
its repossession agency license or registration issued
pursuant to the Business and Professions Code. Any
document may be originals, photocopies or faxes or may be
transmitted electronically and need not be notarized.
e) Administrative costs, as specified, shall not be charged
to the legal owner, as specified, unless he or she requests
a post-storage hearing. No agency may require a
post-storage hearing as a requirement for release of a
vehicle. Copies of all documents must be provided to the
legal owner except for the vehicle evidentiary log book.
The legal owner shall indemnify and hold harmless a storage
facility from any claims arising out of the release of the
vehicle to the legal owner or his or her agent and from any
damage to the vehicle after its release, including the
reasonable costs associated with defending any such claims.
f) A failure by a storage facility to comply with any
applicable conditions set forth in this bill shall not
affect the right of the legal owner or his or her agent to
retrieve the vehicle if all the conditions are met, as
specified.
16)States a legal owner, or his or her agent, who meets the
requirements for release of a vehicle, as specified, shall not
be required to request a post-storage hearing as a requirement
for release of the vehicle to the legal owner or the legal
owner's agent.
17)Provides a legal owner, or his or her agent, who meets the
requirements for release of a vehicle, as specified, shall not
release the vehicle to the registered owner of the vehicle or
an agent of the registered owner unless the registered owner
is a rental car agency, until after the termination of the
impoundment period.
18)States prior to relinquishing the vehicle, the legal owner
may require the registered owner to pay all towing and storage
charges related to the seizure and impoundment.
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19)Provides a vehicle removed and seized pursuant to an
ordinance adopted pursuant to this bill shall be released to a
rental car agency prior to the end of the impoundment period
if the agency is either the legal owner or registered owner of
the vehicle and the agency pays all towing and storage fees
related to the seizure and impoundment of the vehicle.
20)States the owner of a rental vehicle that was seized under an
ordinance adopted pursuant to this bill may continue to rent
the vehicle upon recovery of the vehicle. However, the rental
car agency shall not rent another vehicle to the driver of the
vehicle that was seized until the impoundment period has
expired. The rental car agency may require the person to whom
the vehicle was rented to pay all towing and storage charges
related to the seizure and impoundment.
EXISTING LAW :
1)States that notwithstanding any other provision of law, any
city, any county, or any city and county may adopt an
ordinance establishing a five-year pilot program that
implements procedures for declaring any motor vehicle a public
nuisance when the vehicle is used in the commission of an act
in violation of prostitution, as specified, or a provision
involving any lesser included offense to which the defendant
enters a plea of guilty or no contest as part of a plea
agreement subsequent to the defendant having been charged with
prostitution, as specified. [Vehicle Code Section
22659.5(a).]
2)States notwithstanding any other provision of law and except
as provided in this provision, a motor vehicle is subject to
forfeiture as a nuisance if it is driven on a California
highway by a driver with a suspended or revoked license, or by
an unlicensed driver, who is a registered owner of the vehicle
at the time of impoundment and has a previous misdemeanor
conviction for driving on a suspended or revoked license.
[Vehicle Code Section 14607.6(a).]
3)Prohibits a peace officer from impounding a vehicle, as
specified, if the license of the driver expired within the
preceding 30 days and the driver would otherwise have been
properly licensed. [Vehicle Code Section 14607.6(c)(2).]
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4)Provides that a peace officer may exercise discretion in a
situation where the driver without a valid license is an
employee driving a vehicle registered to the employer in the
course of employment. A peace officer may also exercise
discretion in a situation where the driver without a valid
license is the employee of a bona fide business establishment
or is a person otherwise controlled by such an establishment
and it reasonably appears that an owner of the vehicle, or an
agent of the owner, relinquished possession of the vehicle to
the business establishment solely for servicing or parking of
the vehicle or other reasonably similar situations, and where
the vehicle was not to be driven except as directly necessary
to accomplish that business purpose. In this event, if the
vehicle can be returned to or be retrieved by the business
establishment or registered owner, the peace officer may
release and not impound the vehicle. [Vehicle Code Section
14607.6(c)(3).]
5)Provides a registered or legal owner of record at the time of
impoundment may request a hearing to determine the validity of
the impoundment, as specified. [Vehicle Code Section
14607.6(c)(4).]
6)States if the driver of a vehicle impounded, as specified, was
not a registered owner of the vehicle at the time of
impoundment, or if the driver of the vehicle was a registered
owner of the vehicle at the time of impoundment but the driver
does not have a previous conviction for driving on a suspended
or revoked license, the vehicle shall be released pursuant to
the Vehicle Code and is not subject to forfeiture. [Vehicle
Code Section 14607.6(c)(5).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Recently, the
California Supreme Court, in O'Connell v. City of Stockton ,
struck down a vehicle forfeiture ordinance on the grounds that
the area of vehicle forfeiture is fully occupied by the State,
and the ordinance was therefore preempted by state law.
Although it did not reach the question, the Court was also
concerned about whether the ordinance violated substantive and
procedural due process. This decision throws into question
the authority of cities and counties to pass vehicle
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impoundment ordinances. AB 14 expressly grants local
governments the authority to regulate in the area of nuisance
abatement vehicle impoundment so long as certain guidelines
are adhered to. Specifically, AB 14 allows local governments
to adopt ordinances intended to abate nuisances created by
vehicles that are involved in certain prostitution-related
criminal offenses (Penal Code Sections 647(b), 266h and
266i)."
2)Vehicle Code Section 22659.5 : Existing law authorizes local
jurisdictions to adopt ordinances declaring vehicles used in
the commission of prostitution to be impounded as a public
nuisance. Vehicle Code Section 22659.5 was enacted in 1993
and allowed a local government to impound a vehicle after a
conviction for prostitution, as specified, for up to 48 hours.
AB 1332 (Gotch), Chapter 485, Statutes of 1993, declared
legislative intent as follows:
"The Legislature hereby finds and declares that under the Red
Light Abatement Law every building or place used for, among
other unlawful purposes, prostitution is a nuisance which
shall be enjoined, abated, and prevented, and for which
damages may be recovered. It is recognized that in many
instances vehicles are used in the commission of acts of
prostitution and that if these vehicles were subject to the
same procedures currently applicable to buildings and places,
the commission of prostitution in vehicles would be vastly
curtailed. The Legislature, therefore, intends to enact a
five-year pilot program in order to ascertain whether
declaring motor vehicles a public nuisance when used in the
commission of acts of prostitution would have a substantial
effect upon the reduction of prostitution in neighborhoods,
thereby serving the local business owners and citizens of our
urban communities."
The author of the bill further stated, "This bill would enable
the County of San Diego and/or any city within the county to
adopt an ordinance which would permit local authorities to
impound a vehicle declared to be a public nuisance. Local
authorities could control traffic involving customers of
prostitutes by adopting an ordinance to impound vehicles used
in the commission of an act of prostitution. In parts of San
Diego County, prospective customers of prostitutes 'cruise'
the areas where the prostitutes congregate. This activity
causes traffic problems, limits parking availability for
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merchants and residents of these neighborhoods, and creates
dangerous situations due to drivers not watching where they
are driving. Under AB 1332, after a conviction and proper
notice, the police could impound the car of a repeat offender.
This is intended to help alleviate the traffic problems in
the present, and by forcing the offender to go to the impound
lot and retrieve the car, discourage such activity in the
future."
3)O'Connell vs. City of Stockton : In July of 2007, the
California Supreme Court ruled that Vehicle Code Section
22659.5 pre-empted local ordinances on the subject of vehicle
impoundment and forfeiture for specified crimes. [O'Connell
vs. City of Stockton (2007) 41 Cal.4th 1061, 1068.] The
Stockton ordinance at issue, the "Seizure and Forfeiture of
Nuisance Vehicles", authorized impoundment and/or forfeiture
"of any vehicle used to solicit an act of prostitution, or to
acquire or attempt to acquire any controlled substance if
found by a preponderance of evidence." [O'Connell at 1069.]
Local ordinances that "duplicate, contradict or enter into an
area totally occupied" by general state law are
unconstitutional and preempted by the general state law.
[Sherwin Williams Co. vs. City of Los Angeles (1993) 4 Cal.4th
893, 897.]
First, the Court found the Uniform Controlled Substances Act
(UCSA) impliedly occupied the entire field of drug sentencing
and penalties including forfeiture of a vehicle. The UCSA
requires forfeiture of a vehicle only upon proof beyond a
reasonable doubt of the vehicle's use to facilitate certain
serious drug crimes. [Health and Safety Code Section 11469;
O'Connell at 1081.] Second, the Court held that Vehicle Code
Section 22659.5(a) expressly pre-empted the provision related
to vehicle forfeiture for solicitation. As noted above, the
Vehicle Code provision does not authorize forfeiture and only
allows for impoundment after conviction for a period of 48
hours. [Vehicle Code Section 22659.5(b).] Moreover, Vehicle
Code Section 21 prohibits local governments from enacting
ordinances on matters included by the Vehicle Code unless
otherwise specified. Hence, because state law occupies the
entire field of drug sentencing and penalties and specified
Vehicle Code sections expressly speak to the issue of vehicle
impoundment for prostitution, conflicting local ordinances are
pre-empted and unconstitutional. [California Constitution,
Article XI, 7.]
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The California Supreme Court asked the parties involved in this
case to brief issues regarding federal and state
constitutional guarantees of substantive and procedural due
process for pre-conviction impoundment and forfeiture.
Ultimately, however, because the Court ruled the Stockton
ordinance was pre-empted by state law, the Court did not
resolve the issues of due process. [O'Connell at 1068, fn.
1.] It is important to note the issue of due process still
remains and may be litigated in the future.
4)Veto Message of AB 1751 : A substantially similar bill, AB
1751 (Fuentes), of the 2007-08 Legislative Session, was vetoed
due to the late passage of the budget. The Governor stated,
"The historic delay in passing the 2008-09 State Budget has
forced me to prioritize the bills sent to my desk at the end
of the year's legislative session. Given the delay, I am only
signing bills that are the highest priority for California.
This bill does not meet that standard and I cannot sign it at
this time." The veto does not appear to be based on any
policy or fiscal reasoning.
5)Argument in Support : According to the League of California
Cities , "AB 14 will provide local governments with an
additional resource to reduce public nuisances stemming from
illicit activities by granting them the authority to enact
local ordinances to impound vehicles associated with
prostitution offenses. This offers cities an important tool
to directly target local criminal activity and promote safer
communities."
6)Prior Legislation :
a) AB 1751 (Fuentes), of the 2007-08 Legislative Session,
was virtually identical to this bill and was vetoed.
b) AB 1724 (Jones), of the 2007-08 Legislative Session,
would have authorized a city, county, or a city and county
to adopt an ordinance declaring, under specified
conditions, a motor vehicle used in the commission or the
attempted commission of an act that constitute the illegal
dumping of commercial quantities of waste matter upon a
public or private highway or road a public nuisance subject
to seizure and 30-day impoundment. AB 1724 was vetoed.
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c) AB 1145 (Huff), of the 2007-08 Legislative Session,
would have authorized vehicle seizure and forfeiture when
the owner of the vehicle uses it in connection with the
commission of a crime of vandalism, as specified. AB 1145
failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
League of California Cities
Office of Mayor Antonio R. Villaraigosa
Opposition
None received
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744