BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 298 (Wyland)
As Amended April 10, 2013
Hearing date: April 30, 2013
Government Code
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SUPPLEMENTAL POLICE SERVICES:
PRIVATE HOMEOWNERS' ASSOCIATIONS
HISTORY
Source: Orange County Board of Supervisors
Prior Legislation: AB 1643 (Dickenson) Chapter 48, Statutes of
2012
AB 2626 (Jones) (2010) - vetoed
Support: California State Sheriffs' Association
Opposition:Taxpayers for Improving Public Safety
KEY ISSUE
SHOULD THE BOARD OF SUPERVISORS OF A COUNTY BE AUTHORIZED TO
CONTRACT ON BEHALF OF THE SHERIFF OF THAT COUNTY, AND THE
LEGISLATIVE BODY OF A CITY BE AUTHORIZED TO CONTRACT ON BEHALF OF
THE CHIEF OF POLICE OF THAT CITY, TO PROVIDE SUPPLEMENTAL LAW
ENFORCEMENT SERVICES TO HOMEOWNERS' ASSOCIATIONS, AS DEFINED, ON AN
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OCCASIONAL OR ONGOING BASIS TO ENFORCE THE VEHICLE CODE ON A
HOMEOWNERS' ASSOCIATION'S PRIVATELY OWNED AND MAINTAINED ROAD, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to authorize the board of
supervisors of any county to contract on behalf of the sheriff
of that county, and the legislative body of any a city to
contract on behalf of the chief of police of that city, to
provide supplemental law enforcement services to homeowners'
associations, as defined, on an occasional or ongoing basis to
enforce the Vehicle Code on a homeowners' association's
privately owned and maintained road, as specified.
Current law provides that the board of supervisors of any county
may contract on behalf of the sheriff of that county, and the
legislative body of any city may contract on behalf of the chief
of police of that city, to provide supplemental law enforcement
services to:
Private individuals or private entities to preserve the
peace at special events or occurrences that happen on an
occasional basis.
Private nonprofit corporations that are recipients of
federal, state, county, or local government low-income
housing funds or grants to preserve the peace on an ongoing
basis.
Private entities at critical facilities on an occasional
or ongoing basis. A "critical facility" means any building,
structure, or complex that in the event of a disaster,
whether natural or manmade, poses a threat to public
safety, including, but not limited to, airports, oil
refineries, and nuclear and conventional fuel powerplants.
Contracts entered into pursuant to this section shall
provide for full reimbursement to the county or city of the
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actual costs of providing those services, as determined by
the county auditor or auditor-controller, or by the city,
as the case may be.
Such services, except as specified, shall be rendered by
regularly appointed full-time peace officers, as defined in
Section 830.1 of the Penal Code.
Peace officer rates of pay shall be governed by a
memorandum of understanding.
A contract entered into pursuant to this section shall
encompass only law enforcement duties and not services
authorized to be provided by a private patrol operator, as
defined in Section 7582.1 of the Business and Professions
Code.
Contracting for law enforcement services, as authorized
by this section, shall not reduce the normal and regular
ongoing service that the county, agency of the county, or
city otherwise would provide.
Prior to contracting for ongoing services, the board of
supervisors or legislative body, as applicable, shall
discuss the contract and the requirements of this section
at a duly noticed public hearing.
(Government Code section 53069.8.)
Current law provides:
Any city or county may, by ordinance or resolution, find
and declare that there are privately owned and maintained
roads as described in the ordinance or resolution within
the city or county that are not generally held open for use
of the public for purposes of vehicular travel but, by
reason of their proximity to or connection with highways,
the interests of any residents residing along the roads and
the motoring public will best be served by application of
the provisions of this code to those roads. No ordinance or
resolution shall be enacted unless it is first filed with
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the city or county a petition requesting it by a majority
of the owners of any privately owned and maintained road,
or by at least a majority of the board of directors of a
common interest development, as defined, that is
responsible for maintaining the road, and without a public
hearing thereon and 10 days' prior written notice to all
owners of the road or all of the owners in the development.
Upon enactment of the ordinance or resolution, the
provisions of this code shall apply to the privately owned
and maintained road if appropriate signs are erected at the
entrance to the road of the size, shape, and color as to be
readily legible during daylight hours from a distance of
100 feet, to the effect that the road is subject to the
provisions of this code. The city or county may impose
reasonable conditions and may authorize the owners, or
board of directors of the common interest development, to
erect traffic signs, signals, markings, and devices which
conform to the uniform standards and specifications adopted
by the Department of Transportation.
The department shall not be required to provide patrol
or enforce any provisions of this code on any privately
owned and maintained road subjected to the provisions of
this code under this section, except those provisions
applicable to private property other than by action under
this section.
As used in this section, "privately owned and maintained
roads" includes roads owned and maintained by a city,
county, or district that are not dedicated to use by the
public or are not generally held open for use of the public
for purposes of vehicular travel.
(Vehicle Code � 21107.7.)
This bill would authorize the board of supervisors of any a
county to contract on behalf of the sheriff of that county, and
the legislative body of any a city to contract on behalf of the
chief of police of that city, to provide supplemental law
enforcement services to homeowners' associations, as defined, on
an occasional or ongoing basis to enforce the Vehicle Code on a
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homeowners' association's privately owned and maintained road,
as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
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part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the Bill
According to the author:
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State law currently limits the options available to
homeowner's associations for law enforcement services.
Traditionally, unincorporated areas are patrolled by
local law enforcement for general law enforcement
services, such as responding to crimes or criminal
complaints. General law enforcement services do not
usually cover traffic enforcement, leaving most
homeowners' associations with no one to actively
patrol their roads for vehicle code infractions.
In 1985, the California Attorney General (opinion
84-204) opined that "neither cities, counties, nor
their heads of law enforcement have the authority to
contract with private parties for regular private
security services." This opinion was based on the
fact that the Legislature at the time had only allowed
local government officials to contract with private
entities to provide supplemental law enforcement
services connected to a special event or occurrence.
Since this opinion was written, the Legislature has
expanded the code section governing supplemental law
enforcement contracting to explicitly allow local
governments to contract with the owners or operators
of "critical facilities" such as power plants,
airports, oil refineries, etc to provide occasional or
ongoing law enforcement.
SB 298 will provide statutory authority for a county
or city to enter into a contract with a homeowners'
association that owns and maintains their own private
roads for the purpose of providing vehicle code
enforcement on an occasional or ongoing basis.
Homeowner associations would be required to fully
reimburse the local government for all costs
associated with the additional services provided by
law enforcement officials. Additionally, current law
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requires that no contract entered into can reduce the
normal and regular public safety services that the
county or city should already provide.
2. Private Homeowner Association Contracts for Supplemental Law
Enforcement Services
Under current law the board of supervisors of any county may
contract on behalf of the sheriff of that county, and the
legislative body of any city may contract on behalf of the chief
of police of that city, to provide supplemental law enforcement
services to:
Private individuals or private entities to preserve the
peace at special events or occurrences that happen on an
occasional basis.
Private nonprofit corporations that are recipients of
federal, state, county, or local government low-income
housing funds or grants to preserve the peace on an ongoing
basis.
Private entities at critical facilities on an occasional
or ongoing basis." A "critical facility" means any
building, structure, or complex that in the event of a
disaster, whether natural or manmade, poses a threat to
public safety, including, but not limited to, airports, oil
refineries, and nuclear and conventional fuel powerplants."
(Gov. Code section 53069.8.)
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In general, existing law specifies that these services shall be
rendered by full-time peace officers, as defined, and shall
encompass only "law enforcement duties" and not "services
authorized to be provided by a private patrol operator" (i.e.,
private security guards). (Ibid.) Last session
AB 1643 (Dickenson) (Chapter 48, statutes of 2012) authorized
the Sacramento County Sheriff or Sacramento Police Chief to
provide the services of sheriff's or police security officers,
who are not peace officers, to provide security services at
properties owned publicly or privately, "whose primary business
supports national defense, or whose facility is qualified as a
national critical infrastructure under federal law or by a
federal agency, or that stores or manufactures material that, if
stolen, vandalized, or otherwise compromised, may compromise
national security or pose a danger to residents within the
County of Sacramento."
This bill would expand existing law in a different way. It
would authorize local governments to enter contracts on behalf
of their police or sheriff's department with private homeowner's
associations to enforce the Vehicle Code on the homeowner's
associations' "privately owned and maintained roads," as defined
by Vehicle Code � 21107.7. These are roads, closed to the
public, but where the Vehicle Code nonetheless applies. The
California Highway Patrol is not required to patrol those
streets to enforce the vehicle code but would treat them as any
other private property. (Vehicle Code � 21107.7(b).)
Because these roads are located on private property, the extent
to which local law enforcement agencies would be regularly
patrolling those roads for vehicle code violations is unclear.
This bill would allow those private homeowners to contract with
the local government for supplemental police services from their
local law enforcement agency to enforce the Vehicle Code on
those private roads.
The question this bill raises is whether it is appropriate for
private homeowners who have chosen to live in areas where their
privately owned roads are not open to the public, should be
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permitted to pay local government for additional police services
to enforce the Vehicle Code on those roads. Current Government
Code section 53069.8., which this bill would amend, contains a
provision which states: "Contracting for law enforcement
services, as authorized by this section, shall not reduce the
normal and regular ongoing service that the county, agency of
the county, or city otherwise would provide." Members may wish
to consider whether that provision would be measurable or
enforceable and whether, in practice, private, gated communities
who would be paying local law enforcement agencies for these
supplemental services, might in fact receive better police
services than non-paying neighborhoods. Regardless of whether
that proves to be true, this bill also raises the question of
whether residents of neighborhoods who do not pay for
supplemental police services might perceive it to be true.
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