BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2247
                                                                  Page  1

          Date of Hearing:  April 10, 2012
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 2247 (Lowenthal) - As Amended:  March 27, 2012
           
           
           SUMMARY  :  Increases the penalties for the unauthorized sales or 
          peddling of any good, merchandise, property, or services in a 
          transit facility or vehicle.  Specifically,  this bill  :  

          1)Makes a first or second violation of unauthorized sales or 
            peddling on or in a public transit facility or vehicle an 
            infraction punishable by a fine not to exceed $250 and by 
            community service not to exceed 48 hours.

          2)Makes a third or subsequent violation of unauthorized sales or 
            peddling on or in a public transit facility or vehicle 
            punishable by a fine not to exceed $400, or by imprisonment in 
            the county jail for up to 90 days, or by both a fine and 
            imprisonment.

          3)Repeals Penal Code Section 602.7.

          4)Makes conforming changes to other statutes.

           EXISTING LAW  :

          1)Prohibits unauthorized sales or peddling on any property, 
            facility, or vehicle owned by the San Francisco Bay Area Rapid 
            Transit District or the Southern California Rapid Transit 
            District, and makes this conduct punishable as an infraction.  
            ĘPenal Code Section 602.7]

          2)Makes any of the following acts committed on or in a public 
            transit facility or vehicle an infraction punishable by a fine 
            not to exceed $250, and by up to 48 hours of community 
            service:

             a)   Eating or drinking in or on a system facility or vehicle 
               in areas where those activities are prohibited by that 
               system;








                                                                  AB 2247
                                                                  Page  2


             b)   Disturbing another person by loud or unreasonable noise;

             c)   Smoking in or on a system facility or vehicle in areas 
               where those activities are prohibited by that system;

             d)   Expectorating upon a system facility or vehicle; and

             e)   Skateboarding, roller skating, bicycle riding, roller 
               blading, or operating a motorized scooter a system 
               facility, vehicle, or parking structure.  This paragraph 
               does not apply to an activity that is necessary for 
               utilization of the transit facility by a bicyclist, 
               including, but not limited to, an activity that is 
               necessary for parking a bicycle or transporting a bicycle 
               aboard a transit vehicle, if that activity is conducted 
               with the permission of the transit agency in a manner that 
               does not interfere with the safety of the bicyclist or 
               other patrons of the transit facility.  ĘPenal Code Section 
               640(a) and (b).]

          3)Punishes a first or second violation of the following acts as 
            an infraction punishable by a fine not to exceed $250, and by 
            up to 48 hours of community service, and punishes a third or 
            subsequent violation as a misdemeanor punishable by a fine of 
            not more than $400 or by imprisonment in the county jail for a 
            period of not more than 90 days, or by both that fine and 
            imprisonment:

             a)   Evasion of the payment of a fare of the system.  For 
               purposes of this section, fare evasion includes entering an 
               enclosed area of a public transit facility beyond posted 
               signs prohibiting entrance without obtaining valid fare, in 
               addition to entering a transit vehicle without valid fare; 

             b)   Misuse of a transfer, pass, ticket, or token with the 
               intent to evade the payment of a fare; and 

             c)   Unauthorized use of a discount ticket or failure to 
               present proof of eligibility to use a discount ticket.  
               ĘPenal Code Section 640(a) and (c).]

          4)Provides that the following acts committed on or in a public 
            transit facility or vehicle are punishable by a fine of not 
            more than $400, by imprisonment in the county jail for a 








                                                                  AB 2247
                                                                  Page  3

            period of not more than 90 days, or by both that fine and 
            imprisonment:

             a)   Willfully disturbing others on or in a system facility 
               or vehicle by engaging in boisterous or unruly behavior;

             b)   Carrying an explosive, acid or inflammable liquid in a 
               public transit facility or vehicle;

             c)   Urinating or defecating in a system facility or vehicle, 
               except in a lavatory.  However, this paragraph shall not 
               apply to a person who cannot comply with this paragraph as 
               a result of a disability, age, or a medical condition; 

             d)   Willfully blocking the free movement of another person 
               in a system facility; and

             e)   Willfully tampering with, removing, displacing, 
               injuring, or destroying any part of any light rail train or 
               bus equipment.  ĘPenal Code Section 640(a) and (d).]

          5)Declares that notwithstanding statutory provisions deeming 
            certain acts as to be infractions, specified transit 
            authorities may enact and enforce an ordinance providing that 
            any of the specified acts over which the authority has 
            jurisdiction, shall be subject only to an administrative 
            penalty imposed and enforced in a civil proceeding.  ĘPenal 
            Code Section 640(e).]

          6)Permits specified local or regional transit agencies to 
            contract with designated persons to act as its agents in 
            enforcing statutory provision relating to public transit 
            offenses.  These persons are designated as public officers, 
            not peace officers, and are not allowed to carry weapons or to 
            exercise arrest powers.  They may issue citations for 
            infractions occurring in a public transit facility or vehicle. 
             (Penal Code Section 830.14.)

          7)Provides that any violation which is an infraction is 
            punishable by a fine not exceeding $250, except where a 
            statute expressly provides for a lesser maximum fine.  (Penal 
            Code Section 19.8.)

          8)Provides that an infraction is not punishable by imprisonment. 
            (Penal Code Section 19.6.)








                                                                  AB 2247
                                                                 Page  4


          9)States that a person charged with an infraction shall not be 
            entitled to a trial by jury, or to have the public defender or 
            other counsel appointed at public expense to represent him or 
            her unless he or she is arrested and not released on his or 
            her written promise to appear, his or her own recognizance, or 
            a deposit of bail.  (Penal Code Section 19.6.)

          10)       States that, except as otherwise provided by law, all 
            provisions of law relating to misdemeanors shall apply to 
            infractions including, but not limited to, powers of peace 
            officers, jurisdiction of courts, periods for commencing 
            action and for bringing a case to trial and burden of proof.  
            (Penal Code Section 19.7.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :

           1)Author's Statement  :  According to the author, "The people who 
            take public transit in California are, whether by choice or 
            not, environmental heroes.

          "One of the ways we can say thank you is to do everything we can 
            to make sure transit is clean, safe and orderly.

          "AB 2247 moves in that direction by making it easier to ride a 
            train without being set upon by so-called pirate vendors, who 
            sell bootlegged DVDs and other items, from platforms, or by 
            going car to car, intruding on what little personal space a 
            passenger has.

          "Riders have complained.  AB 2247 will address this important 
            issue and will go a long way to create a safer and more 
            comfortable public transit experience for all Californians."

           2)Processes for Enforcing Public Transit Offenses  :  Under 
            current law, the courts have jurisdiction to handle infraction 
            offenses.  (Penal Code Section 19.7.)  The standard way to 
            enforce public transit criminal infractions is for the transit 
            officer to give the alleged violator a citation with a court 
            date, which the alleged violator signs promising to appear.  
            The court later sends a notice to the alleged violator 
            reminding him or her of the court date, listing the bail 
            amount, and stating that he/she must appear unless the bail is 








                                                                  AB 2247
                                                                  Page  5

            paid.

          However, existing law also allows specified transit authorities 
            to establish an alternative civil infraction process for 
            specified transit violations that occur within their systems.  
             ĘSee Penal Code Section 640(e).]  One major benefit of 
            "decriminalizing" these offenses and handling them 
            administratively is that penalty assessments are not imposed 
            on the base fine.

            For example, the Los Angeles County Metropolitan 
            Transportation Authority informs the Committee that when a 
            citation is processed through the court system, the infraction 
            is punished with a $30 fine, but that fine is subject to 
            numerous penalty assessments.   If the case is handled by way 
            of an administrative ticket, the offender is charged $75, 
            without penalty assessments.  Alternatively, the offender can 
            participate in an on-line transit school tutorial, and the fee 
            is reduced by $15.  (See also 
            .)

            It should be noted that under existing law, the administrative 
            procedure does not apply to juveniles.  ĘPublic Utilities Code 
            Section 99580(a).]  Those cases must be handled in the 
            juvenile court system.  

           3)Existing Penalty Assessments  :  There are penalty assessments 
            and fees assessed on the base fine for any criminal offense.  
            Assuming a first or second-time offender was fined the maximum 
            of $250 allowed for an infraction ,  the following penalty 
            assessments would be imposed pursuant to the Penal Code and 
            the Government Code:

          Base Fine:                         $  250 

            Penal Code 1464 assessment:                  $  250($10 for 
            every $10)
            Penal Code 1465.7 assessment:                      50(20% 
            surcharge)
            Penal Code 1465.8 assessment:                      40($40 fee 
            per criminal offense)
            Government Code 70372 assessment:                 125($5 for 
            every $10)
            Government Code 70373 assessment:                   35($35 for 
            infractions)








                                                                  AB 2247
                                                                  Page  6

            Government Code 76000 assessment:                 175($7 for 
            every $10)
            Government Code 76000.5 assessment:                 50($2 for 
            every $10) 
            Government Code 76104.6 assessment:                      25($1 
            for every $10)
            Government Code 76104.7 assessment                       75($3 
            for every $10)

            Total Fine with Assessments:            $1,075

           4)Creation of New Misdemeanor  :  This bill makes third and 
            subsequent offenses of unauthorized sales and peddling 
            misdemeanors where they are now treated as infractions.  This 
            bill would very likely aggravate jail overcrowding with very 
            minor offenses.  
           
           5)Arguments in Support  :  According to the  Los Angeles County 
            Sheriff's Department  , the sponsor of this bill, "Under current 
            law, illegal sales or peddling on the public transportation 
            system is an infraction and has a small fine.  Current law 
            does not provide for repeat offenders.  The current provisions 
            are not effectively addressing this growing problem.

          "This bill will move illegal sales or peddling to Penal Code 
            Section 640 which addresses other violations within the public 
            transportation system.  For the first two offenses, which 
            would be infractions, the penalty will only be a fine and 
            community service.  For the third violation, it would be a 
            misdemeanor punishable by an increased fine or short period of 
            time in county jail.

          "The problem of illegal sales or peddling has increased as the 
            public transportation system has grown.  These illegal 
            peddlers are sometimes aggressive and disrupt passengers' 
            transportation experience.  Our Department has received 
            numerous complaints from riders regarding the practices of 
            some of these peddlers.  The illegal peddlers often sell 
            pirated items which undermine legitimate business and 
            manufacturers, and these sales contribute to the loss of state 
            and local government tax revenue on these items.  They are 
            also selling consumable food items without the proper 
            licensing which poses a threat to public health and safety."

           6)Arguments in Opposition  :  According to the  California 








                                                                 AB 2247
                                                                  Page  7

            Attorneys for Criminal Justice  , "Essentially, this bill 
            codifies a prohibition that is  more conducive to a policy of 
            local transporation agencies.  The activity banned by this 
            statute does little or any harm to society and our court 
            system should not be besieged by thousands of cases each year 
            for offering to sell a rose to someone on a bus - even if 
            there is a willing purchaser.

          "Although this bill creates a 'traffic' type citation, these 
            cases are still handled by a branch of the local courts 
            thereby further distressing the financial situation of the 
            state.  Traffic courts are handled by judicial officers and/or 
            commissioners and are staffed by court employees.  They are 
            often located within a traditional courthouse next to 
            departments handling felonies and misdemeanors.  Additionally, 
            it is routine for individuals to miss court appointments for a 
            'ticket' not fully understanding the requirement to appear in 
            person (especially since they are not entitled to an 
            attorney).  These 'FTS's often result in the issuance of bench 
            warrants and arrests of individuals, another burden on our 
            courts and jails.

          "Although current statute already contains limited prohibitions, 
            it is unclear how these statutes are being enforced.  There 
            needs to be significant evaluation of the current statute 
            before seeking to expand its scope."

           7)Prior Legislation  :

             a)   AB 426 (Lowenthal), Chapter 100, Statutes of 2011, 
               permitted specified transit authorities to create 
               ordinances that allow citations for a violation to be 
               handled administratively.

             b)   SB 1320 (Hancock), Chapter 493, Statutes of 2010, 
               allowed the Alameda-Contra Costa Transit District to adopt 
               and enforce an ordinance to impose and enforce civil 
               administrative penalties for fare evasion or passenger 
               misconduct, other than by minors, on or in a transit 
               facility or vehicle in lieu of the criminal penalties, with 
               specified administrative adjudication procedures for the 
               imposition and enforcement of the administrative penalties.

             c)   AB 2324 (Perez), Chapter 675, Statutes of 2010, created 
               new misdemeanors and recast fines and punishments for 








                                                                  AB 2247
                                                                  Page  8

               crimes committed upon public transit vehicle stations.

             d)   SB 1749 (Migden), Chapter 258, Statutes of 2006, allowed 
               the City and County of San Francisco and the Los Angeles 
               County Metropolitan Transportation Authority to adopt and 
               enforce an ordinance to impose and enforce civil 
               administrative penalties for fare evasion or passenger 
               misconduct, other than by minors, on or in a transit 
               facility or vehicle in lieu of the criminal penalties, with 
               specified administrative adjudication procedures for the 
               imposition and enforcement of the administrative penalties.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles County Sheriff's Department (Sponsor)

           Opposition 
           
          California Attorneys for Criminal Justice
          California Public Defenders Association


           Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744