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  




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            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  




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          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  




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            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  




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            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  




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            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  




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            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 the  State   
               state and in all counties and municipalities therein, and  
                no  a 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 authorized  herein  by 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  




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            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