BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 14|
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THIRD READING
Bill No: AB 14
Author: Fuentes (D)
Amended: 6/29/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/9/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
ASSEMBLY FLOOR : 74-0, 4/20/09 - See last page for vote
SUBJECT : Vehicle nuisances: seizure and impoundment
SOURCE : Author
DIGEST : This bill authorizes a local government entity
to enact a nuisance abatement ordinance under which a
vehicle used in illegal dumping or prostitution would be
subject to seizure and impoundment for up to30 days if the
operator of the vehicle has a prior conviction for the same
offense within the past three years, and the person was
validly arrested in the current matter.
Senate Floor Amendments of 6/29/09 provide that a person
whose vehicle is subject to impoundment because the person
used the vehicle to engage in prostitution or illegal
dumping offense shall have been previously convicted of
such an offense within the prior three years.
ANALYSIS : Existing law provides that any person who
CONTINUED
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maintains or commits any public nuisance for which the
punishment is not otherwise prescribed, or who willfully
omits performing any legal duty relating to the removal of
a public nuisance, is guilty of a misdemeanor punishable by
up to 6 months in the county jail and/or a fine up to
$1000. (Pen. Code 372.)
Existing law authorizes a local county, city or city and
county to adopt a five-year pilot program for declaring a
motor vehicle used in prostitution and related offenses to
be a nuisance. (Veh. Code 22659.5.) An ordinance
adopted pursuant to Vehicle Code Section 22659.5 shall have
the following features:
1.Where the defendant is arrested and taken into custody,
the arresting officer may remove the vehicle from a
public highway or public land. The owner may retrieve
the vehicle through proof of registration and payment of
applicable fees and costs. (Veh. Code 22651 and 22850
et seq .)
2.The nuisance provisions apply only if the defendant was
convicted of a specified offense, or a lesser included
offense as part of a plea bargain.
3.The defendant can be ordered not to use the vehicle again
for purposes of committing prostitution or a related
offense. Violation of such an order may result in
impoundment of the vehicle for up to 48 hours.
Existing law provides that any person who maintains or
commits any public nuisance for which the punishment is not
otherwise prescribed or who willfully omits performing any
legal duty relating to the removal of a public nuisance is
guilty of a misdemeanor punishable by up to six months in
the county jail and/or a fine up to $1000. (Pen. Code
372.)
Existing law prohibits any person from dumping or causing
to be dumped any waste matter, including rocks or dirt, in
or upon any public or private highway or road, without the
consent of the owner, or in or upon any public park or
other public property, without the consent of the state or
local agency having jurisdiction over the highway, road, or
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property. The penalty is an infraction with a penalty of
$250-$1000 plus penalty assessments for a first offense.
(Pen. Code 374.3.)
Existing law provides that dumping commercial quantities of
waste in violation of Penal Code Section 374.3 is a
misdemeanor, punishable by imprisonment in the county jail
for up to six months and a mandatory fine of between $1000
and $3000 for a first conviction, between $3000 and $6000
for a second conviction, and between $6000 and $10,000 for
a third or subsequent conviction. (Pen. Code 374.3,
subd. (h).)
Existing law defines commercial quantities of waste as
either waste generated in the course of a business or
trade, or an amount equal to one cubic yard. (Pen. Code
374.3, subd. (h).)
Existing law authorizes the impoundment and, in specific
instances, civil forfeiture of a motor vehicle when the
registered owner has multiple convictions for misdemeanor
illegal dumping of waste matter. (Veh. Code 23112.7.)
Existing law authorizes a local county, city or city and
county to adopt a five-year pilot program for declaring a
motor vehicle used in prostitution and related offenses to
be a nuisance. (Veh. Code 22659.5.) An ordinance
adopted pursuant to Vehicle Code Section 22659.5 shall have
the following features: Where the defendant is arrested
and taken into custody, the arresting officer may remove
the vehicle from a public highway or public land. The
owner may retrieve the vehicle through proof of
registration and payment of applicable fees and costs.
(Veh. Code 22651 and 22850 et seq .)
1.The nuisance provisions apply only if the defendant was
convicted of a specified offense, or a lesser included
offense as part of a plea bargain.
2.The defendant can be ordered not to use the vehicle again
for purposes of committing prostitution or a related
offense. Violation of such an order may result in
impoundment of the vehicle for up to 48 hours.
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3.Where the defendant is arrested and taken into custody,
the arresting officer may remove the vehicle from a
public highway or public land. The owner may retrieve
the vehicle through proof of registration and payment of
applicable fees and costs. (Veh. Code 22651 and 22850
et seq .)
4.The nuisance provisions apply only if the defendant was
convicted of a specified offense, or a lesser included
offense as part of a plea bargain.
5.The defendant can be ordered not to use the vehicle again
for purposes of committing prostitution or a related
offense. Violation of such an order may result in
impoundment of the vehicle for up to 48 hours.
This bill authorizes a city, county, or city and county to
adopt an ordinance declaring a motor vehicle to be a public
nuisance subject to seizure and impoundment for up to 30
days if the ordinance meets the following conditions:
1.The motor vehicle is used in the dumping of a commercial
quantity of material or in specified prostitution
offenses and the person involved in the offense was
validly arrested.
2.The person involved in the offense was validly arrested.
3.The person dumping the material has a prior conviction
for dumping (in the case of a dumping violation seizure);
or the person engaged in the prostitution offense has a
prior conviction for the same offense within the past
three years.
This bill requires any local ordinance adopted pursuant to
the bill to include due process and specified protections
for innocent owners and community property owners. Any
ordinance shall include the following features:
1.Within two working days after impoundment, the impounding
agency shall send a notice of the impoundment to the
legal owner of the vehicle.
2.Notice shall state the opportunity for a post-storage
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hearing to determine the validity of the storage or
mitigating circumstances establishing that the vehicle
should be released. The owner may not be charged for
more than five days of storage if he or she does not
receive timely notice.
3.Notice shall 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, as specified;
C. The authority and purpose for the seizure 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.
4.The impounding agency shall maintain a (24-hour)
telephone number providing information about the rights
of legal or registered owners to request a hearing.
5.The hearing shall be conducted within 48 hours of the
request, excluding weekends and holidays. The agency may
authorize one of its own officers or employees to conduct
the hearing if that hearing officer is not the person who
directed the seizure of the vehicle.
6.The agency employing the person who directed the storage
is responsible for towing and storage costs if reasonable
grounds for the storage are not established at the
hearing.
7.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 vehicle was arrested without
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probable cause.
B. The vehicle was stolen.
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 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
activities allowing seizure of the vehicle.
8.A spouse, domestic partner, or other party may object to
the impoundment on the grounds that it would create a
hardship because there is no other vehicle available to
the household. The hearing officer shall release the
vehicle where the hardship to the objecting party
outweighs the seriousness of the act in which the vehicle
was used.
9.If a 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 owner of the vehicle is responsible for towing and
storage charges, nor shall the motor vehicle be sold to
satisfy those charges.
10. The registered owner or his or her agent shall be
responsible for charges related to the impoundment
except as otherwise provided.
11. No lien sale fees shall be charged to an owner who
redeems the vehicle prior to the 15th day of
impoundment. Neither the impounding authority nor any
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person having possession of the vehicle shall collect
fees associated with towing or storage, as specified,
unless the legal owner voluntarily requests a
post-storage hearing.
12. The vehicle storage facility shall accept a bank
card, as specified, or cash for payment of towing,
storage and related fees. Storage facility operators
who do accept a credit card or cash shall be civilly
liable for four times the amount of fees, not to exceed
$500.
13. The operator of the storage facility, as specified,
must have sufficient funds on the premises during
normal business hours to accommodate reasonable
transactions.
14. 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 or a
specified financial institution, or is another
person holding 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
a copy of specified documents establishing the
security interest in or ownership of the vehicle and
valid identification.
15. Administrative costs shall not be charged to the
legal owner unless he or she requests a post-storage
hearing. No agency may require a post-storage hearing
as a requirement for release. The legal owner shall
indemnify a storage facility from claims arising out of
the release of the vehicle to the legal owner or his or
her agent and from any post-release damage to the
vehicle.
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16. 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.
17. 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. 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.
19. An impounded vehicle 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. The owner of a seized rental vehicle 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 charges related to the
seizure and impoundment.
Prior Legislation
This bill is essentially a combination of two bills from
the 2007-08 legislative session, AB 1751 (Fuentes), which
passed the Senate on 8/5/08 (33-0) and AB 1724 (Jones),
which passed the Senate on 7/7/08 (36-0). The Fuentes bill
concerned prostitution and the Jones bill concerned illegal
dumping. Each bill was vetoed because the Governor,
because of the Budget delay, signed only bills that he felt
had the "highest priority for California." The Governor
gave no policy reasons for his rejection of the bills.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/29/09)
Association for Los Angeles Deputy Sheriffs
California Peace Officers' Association
California Police Chiefs Association
California Public Parking Association
California State Association of Counties
California State Sheriffs' Association
City of Lakewood
City of Los Angeles
City of Lynwood
City of Moreno Valley
Los Angeles County District Attorney's Office
Los Angeles County Sheriff's Department
Riverside Sheriffs' Association
OPPOSITION : (Verified 6/29/09)
California Attorneys for Criminal Justice
ARGUMENTS IN SUPPORT : According to the author's office:
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 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.
The League of California Cities argues in support:
AB 14 will provide local governments with an
additional resource to reduce public nuisances
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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.
ARGUMENTS IN OPPOSITION : The California Attorneys for
Criminal Justice argue in opposition:
In 2005, the 9th Circuit Court of Appeals reaffirmed
the long-standing principle that a warrantless seizure
(e.g. impoundment) by police is presumed to be
unconstitutional and a violation of the Fourth
Amendment. "The impoundment of an automobile is a
seizure within the meaning of the Fourth Amendment.
?A seizure ?without a warrant is per se unreasonable
under the Fourth Amendment." ( Miranda v. City of
Cornelius (2005) 429 F. 3rd 858.) The Miranda court
concluded constitutional barriers are not overcome
simply because a local government adopts an ordinance
such as authorized under AB 14. "?[T]he decision to
impound pursuant to the authority of a city ordinance
and state statute does not, in and of itself,
determine the reasonableness of the seizure under the
Fourth Amendment? The question ? is not whether the
search or seizure was authorized by state law. The
question is ? whether the search was reasonable under
the Fourth Amendment. ( Id . at 864; citation omitted.)
The Miranda decision permits impoundment following an
arrest only if law enforcement determines that leaving
the vehicle at its point of rest creates a public
safety hazard under the community caretaking doctrine.
"Whether an impoundment is warranted ? depends on the
location of the vehicle and police officer's duty to
prevent it from creating a hazard to other drivers or
being a target for vandalism or theft." ( Ibid .)
California appellate cases have also held that
pre-conviction vehicle impoundment is authorized only
if taking custody of the vehicle is necessary to
secure its or the public's safety. Since AB 14
authorizes unconstitutional pre-conviction vehicle
impoundments, CACJ must regretfully oppose.
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ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Caballero, Carter, Conway, Cook, Coto, Davis,
De La Torre, De Leon, DeVore, Duvall, Emmerson, Eng,
Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani,
Gaines, Galgiani, Garrick, Gilmore, Hagman, Harkey,
Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries,
Jones, Knight, Krekorian, Lieu, Logue, Bonnie Lowenthal,
Ma, Mendoza, Miller, Nava, Nestande, Niello, Nielsen,
John A. Perez, V. Manuel Perez, Portantino, Price,
Ruskin, Salas, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, Bass
NO VOTE RECORDED: Buchanan, Charles Calderon, Chesbro,
Hall, Monning, Saldana
RJG:nl 6/29/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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