BILL ANALYSIS SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 949 SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: oropeza VERSION: 4/22/10 Analysis by: Jennifer Gress FISCAL: no Hearing date: May 4, 2010 SUBJECT: Municipal ordinance enforcement DESCRIPTION: This bill clarifies that the provisions of the California Vehicle Code are applicable throughout the state and that local authorities may not enact or enforce an ordinance related to matters covered in the state Vehicle Code, including an ordinance that assesses a penalty for a violation of the Vehicle Code, unless expressly authorized to do so. ANALYSIS: The California Vehicle Code provides that its provisions are applicable and uniform throughout the state. A local authority may not enact or enforce any ordinance on matters covered by the Vehicle Code unless it expressly authorizes a local authority to do so. Local authorities may adopt rules and regulations by ordinance or resolution regarding the following matters: Regulating or prohibiting processions or assemblages on the highways. Licensing and regulating the operation of vehicles for hire (e.g., taxis), drivers of passenger vehicles for hire, tow trucks, and tow truck drivers. Regulating traffic by means of traffic officers, official traffic control devices, persons authorized for that duty by the local authority, and at the site of road construction or SB 949 (OROPEZA) Page 2 maintenance. Operation of bicycles and of electric carts by physically disabled persons or persons 50 years of age or older on the public sidewalks. Providing for the appointment of nonstudent school crossing guards. Regulating the methods of deposit of refuse in streets for collection. Regulating cruising, closing streets to vehicular traffic, and diverting traffic under certain circumstances. Regulating or authorizing the removal by peace officers of vehicles unlawfully parked in a fire lane on private property. Designating any highway as a through highway and requiring that all vehicles observe official traffic control devices before entering or crossing the highway. Prohibiting certain vehicles from using particular highways. Closing particular streets during regular school hours for the purpose of conducting driver training. Temporarily closing a portion of any street for celebrations, parades, local special events, etc. Prohibiting entry to or exit from any street by means of islands, curbs, traffic barriers, or other roadway design features to implement the circulation element of a general plan. The Vehicle Code also prescribes specific fines and assessments for numerous violations of the code. For violations for which the code does not prescribe a specific penalty, the Vehicle Code provides a maximum fine in which case the Judicial Council may establish the exact fine to be assessed. This bill clarifies that the provisions of the Vehicle Code are applicable throughout the state and that local authorities may not enact or enforce an ordinance related to matters covered in the Vehicle Code, including an ordinance that assesses a penalty for a violation of the Vehicle Code, unless expressly authorized SB 949 (OROPEZA) Page 3 to do so by the Vehicle Code. COMMENTS: 1.Purpose . According to the author, several local governments, including the county of Alameda and the cities of Marysville, Roseville, Riverbank, and Newman, have elected to make it their official policy to ignore certain moving violations and penalties in the state Vehicle Code and punish these offenses under their own local ordinances. Legislative Counsel has opined that such actions by local governments are illegal. The Los Angeles Police Department, the largest local law enforcement entity in the state, has reached a similar conclusion, finding such actions by local governments to be in violation of the California Constitution. With this understanding, the author considers this bill to be a technical cleanup measure to remove any misunderstanding local governments may have regarding their authority under state law. I nconsistency in the enforcement of the state's V ehicle C ode fosters confusion and distrust among drivers . In addition, it inhibits accurate collection of statewide data on moving violations , used to track unsafe drivers and calculate insurance rates , and it puts the state at risk of losing millions in federal transportation dollars. 2.The debate: state preemption . A hand full of local governments around the state have established municipal ordinances that include violations identical to ones contained in the Vehicle Code (e.g., a person shall obey traffic signs and signals) and that assess penalties for the violations. If a person is cited for a violation under a municipal ordinance, the penalty assessed is the penalty contained in the ordinance, not the state Vehicle Code. The local government receives the revenue from the penalty and it does not communicate the violation to the Department of Motor Vehicles (DMV). At issue is whether the state Vehicle Code preempts local ordinances with regard to regulating traffic. Section 7 of Article XI of the California Constitution provides that a local authority "may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Opinions issued formally SB 949 (OROPEZA) Page 4 by the Office of the Attorney General (1990) and informally this year by the Los Angeles Police Department cite legal cases in which "conflict" was found to occur when the state has enacted a legislative scheme intended for uniform application throughout the state and has indicated its intention to preempt local regulation in the area. In its 1990 opinion, the Office of the Attorney General concluded, "The Vehicle Code is such an enactment and in fact contains its own preemption rule, found in its section 21." The City of Roseville argues that by allowing local authorities to adopt rules and regulations regarding "regulating traffic by means of official traffic control devices," the state Vehicle Code does expressly authorize local authorities to establish and enforce municipal ordinances regarding such actions as obeying signs or signals. Allowing local authorities to regulate traffic by means of official traffic control devices, however, has generally been interpreted to mean that local governments may determine where to place which traffic signs and signals. Furthermore, a number of legal opinions rendered over the years reinforce the state's preemption of the field of traffic control, particularly in cases where penalties for violations are established in state statute. In response to local governments enforcing local ordinances related to matters covered by the state Vehicle Code, the author requested the Legislative Counsel to opine on the following question: Does the Vehicle Code preempt local authorities from enacting and enforcing ordinances to assess a fine for nonparking-related violations (i.e., moving violations) if a fine for the violation is specified in the Vehicle Code? In its opinion, Legislative Counsel asserted that the Vehicle Code does preempt the authority of a local authority to enact and enforce ordinances assessing penalties for moving violations because it provides for a comprehensive scheme of penalties for moving violations, including the disposition of fine revenue. Statutory and case law show that local ordinances that assess penalties for moving violations contained in the Vehicle Code are preempted by the Vehicle Code and thus invalid. If a SB 949 (OROPEZA) Page 5 local authority would like to cite violators using municipal ordinances, then legislation would be needed to explicitly authorize local authorities to enact and enforce laws that establish penalties for specified moving violations. 3.Fine revenue . The fines for violations cited under municipal ordinances vary by jurisdiction, but of those that committee staff is aware of, the fines tend to range from $100 to $150 for the first offense with increasingly higher fines for subsequent offenses. For failing to obey traffic control devices, the City of Roseville has adopted a fine of $100 for a first offense, $200 for a second offense, and $500 for subsequent offenses. Local fines are not subject to the state-mandated penalty assessments, surcharges, or other fees that apply to citations issued under the Vehicle Code. One hundred percent of revenues from fines collected under municipal ordinances stay with the jurisdiction in which the violation occurred. The fines for violations cited under the Vehicle Code, by contrast, are much higher in total once penalty assessments, surcharges, and other fees are added. According to the 2010 Uniform Bail and Penalty Schedule, base fine in the amount of $35 has a total bail of $211 and a base fine of $100 has a total bail of $445. Fine revenues, including penalty assessments, are distributed according to complicated formulas established in statute, but some portion is distributed to the local jurisdiction where the violation occurred. The exact percentage depends on the amount of the base fine as some of the penalty assessments are calculated as a percentage of the base fine. For base fines of $35, the local government receives approximately 34 percent of the total bail amount, which for total bail of $211 is $71. For base fines of $100, the local government receives about 43 percent of the total bail, which equals $191. 4.Importance of uniformity . There are several reasons why the state may wish to discourage local governments from establishing their own procedures and penalties for violations covered by the Vehicle Code. Safety. When a person is convicted for a moving violation cited under the Vehicle Code, the violation is reported to the DMV who, depending on the violation, may attach negligent operator points to one's driver's license. After receiving a specified number of points within a statutorily defined SB 949 (OROPEZA) Page 6 timeframe, a driver's license may be suspended or revoked by DMV. The purpose of applying violator points is to track incidents of unsafe driving and, if necessary, remove unsafe drivers from the road. This system is intended to deter unsafe driving and protect members of the public from unsafe drivers. Points are also used by the insurance industry to determine the risk an insurance company may face by insuring a driver. The more points that accrue on one's license, the higher the insurance premium he or she will likely be charged. When a person is cited under a municipal ordinance rather than the state Vehicle Code, DMV is not contacted and no points are attached to the driver's license, precluding DMV and insurance companies from assessing whether or not a driver has a record of safe driving, thereby allowing unsafe drivers to remain undetected. Equity. Ensuring that all persons who commit the same violation are treated equally is another reason for promoting uniformity and discouraging the use of local ordinances to cite for violations covered by the Vehicle Code. Is it fair for a person in one jurisdiction to receive a penalty that is different from the penalty assessed on a person in another jurisdiction for the exact same violation? Potential loss of federal funds. Federal law requires each state to establish a highway safety plan that, among many other things, provides for "sustained enforcement of statutes addressing impaired driving, occupant protection, and driving in excess of posted speed limits." Failure to implement a program approved by the United States Department of Transportation (U.S. DOT) could result in the withholding of up to 50 percent of federal safety funds. By allowing local authorities to enforce moving violations using local ordinances, some are concerned that U.S. DOT could find that the state was not providing for sustained enforcement and thus withhold federal transportation funds. 5.Officer discretion . Opponents to this measure assert that it will interfere with officer discretion to ensure "an appropriate response to local needs." Violations enforced through municipal ordinances (e.g., obedience to traffic signs and signals) are no different than those provided for in the Vehicle Code; what has differed is the penalty. The committee may wish to question why officer discretion is necessary for SB 949 (OROPEZA) Page 7 determining which penalties may be appropriate for an observed violation, a role traditionally reserved for the court, and whether such discretion could lead to discrimination or abuse if an officer chooses to cite some persons under a municipal ordinance and others under the state Vehicle Code for the same violation. 6.Suggested amendments . The intent of the bill is to clarify two things with regard to the state preemption of traffic regulation: 1) a local authority may not enact or enforce an ordinance that establishes a violation that is already covered by the Vehicle Code and 2) a local authority may not enact or enforce an ordinance that establishes a fine or penalty that is already established in the Vehicle Code. Language contained in the bill does not achieve these aims as clearly as might be desired. First, the bill adds to the Vehicle Code the following paragraph: "A local authority shall not enact or enforce an ordinance that assesses a penalty for a violation of this code or an ordinance adopted pursuant to this code ?" This language may be somewhat confusing as it appears to prohibit a local authority from enacting and enforcing "an ordinance adopted pursuant to this code," in other words, an ordinance that was adopted lawfully, in accordance with state law. In addition, the language does not address any assessments or fees that a local authority may impose rather than a fine per se. To clarify the intent, the author or committee may wish to amend the bill by deleting subdivision (b) and amending Section 21 as follows: Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout theStatestate and in all counties and municipalities therein, andnoa local authority shall not enact or enforce any ordinance or resolution on the matters covered by this code, including ordinances or resolutions that establish regulations or procedures for, or assess a fine, penalty, assessment, or fee for a violation of, matters covered by this code, unless expressly authorizedhereinby this code. Second, the bill specifies that "This section does not authorize a local authority to enact or enforce an ordinance assessing a penalty for a violation where a penalty for the violation is expressly provided for in this code." This language pertains only to the establishment of penalties by SB 949 (OROPEZA) Page 8 local ordinance when penalties exist in the Vehicle Code and does not address the issue of establishing a violation by local ordinance for conduct that is already covered by the Vehicle Code. To remedy these issues, the author or committee may wish to consider amending this provision to read: This section does not authorize a local authority to enact or enforce an ordinance or resolution that establishes a violation where a violation for the same or similar conduct is provided for in this code, nor does it authorize a local authority to enact or enforce an ordinance or resolution that assesses a fine, penalty, assessment, or fee for a violation where a fine, penalty, assessment, or fee for a violation involving the same or similar conduct is provided for in this code. POSITIONS: (Communicated to the Committee before noon on Wednesday, April 28, 2010) SUPPORT: Automobile Club of Southern California California State Automobile Association OPPOSED: Association for Los Angeles Deputy Sheriffs California Fraternal Order of Police California State Association of Counties California State Sheriffs' Association County Professional Peace Officers Association League of California Cities Long Beach Police Officer's Association Riverside Sheriffs' Association Urban Counties Caucus