BILL ANALYSIS Ó
AB 451
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Brian Maienschein, Chair
AB 451
(Bonilla) - As Introduced February 23, 2015
SUBJECT: Private parking facilities.
SUMMARY: Allows cities or counties to authorize, via ordinance
or resolution, operators of privately owned and maintained
off-street parking facilities to regulate unauthorized parking
in their facilities. Specifically, this bill:
1)Provides that, if a city or county enacts an ordinance or
resolution finding and declaring that there are privately
owned and maintained off-street parking facilities within the
city or county that are generally held open for use of the
public for purposes of vehicular parking, a city or county may
include in that ordinance or resolution authorization for the
operator of a privately owned and maintained off-street
parking facility to regulate unauthorized parking in that
facility.
2)Provides that, if a city or county has exercised its authority
pursuant to 1) above, and unauthorized parking is regulated in
a privately owned and maintained off-street parking facility,
the owner or operator of that facility shall include in a
parking fee invoice instructions that describe the manner in
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which to contest the notice of parking violation.
3)Provides that, if a city or county has exercised its authority
pursuant to 1) above, and unauthorized parking is regulated in
a privately owned and maintained off-street parking facility,
the owner or operator of that facility shall not file with, or
transmit to, the Department of Motor Vehicles (DMV) a parking
fee invoice for the purpose of having the DMV attempt to
collect unpaid parking fees by refusing to issue or renew a
license or refusing to renew the registration of a vehicle, as
specified.
4)Requires a city or county that authorizes private parking
regulation pursuant to this bill to, in its ordinance or
resolution, include provisions that include all of the
following:
a) Procedures of dispute resolution in accordance with
those procedures set forth in current law governing
procedures on parking violations, which shall include all
of the following:
i) A written and publicly available dispute resolution
policy that includes specified time periods for
notifications, review, and appeal;
ii) An administrative hearing process that includes all
of the following:
(1) Options for a hearing in person or by mail;
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(2) Administrative review;
(3) A hearing by a third-party examiner who has
been adequately trained and who provides an
independent, objective, fair and impartial review;
(4) Personal delivery or delivery by first-class
mail of an examiner's decision; and,
(5) Authority for the examiner to allow payment of
the parking charge in installments for persons showing
evidence of inability to pay the parking charge in
full;
b) A prohibition against incentives based on the number of
invoices issued or the number or percent of disputed
invoices adjudicated that uphold parking charges;
c) A cap on a parking invoice fee that is commensurate with
the most nearly equivalent municipal parking fine; and,
d) Measures to prevent a private parking regulator from
representing itself as a government enforcement agency,
including a prohibition against use of terminology in
ordinances or resolutions, and in parking fee invoices,
which are restricted to governmental law enforcement, and a
requirement for a conspicuous statement on parking fee
invoices to the effect that "This parking charge notice is
not issued by the [local government]."
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EXISTING LAW:
1)Allows any city or county, by ordinance or resolution, to find
and declare that there are privately owned and maintained
off-street parking facilities as described in the ordinance or
resolution within the city or county that are generally held
open for use of the public for purposes of vehicular parking,
and that specified traffic laws apply to such facilities,
including those related to basic speed law, reckless driving,
speed contests and exhibitions
of speed.
2)Prohibits any ordinance or resolution described above from
applying to any off-street parking facility unless the owner
or operator posts specified notices that the parking facility
is subject to public traffic regulations and control.
3)Prohibits any ordinance or resolution described above from
being enacted without a public hearing and 10 days prior
written notice to the owner and operator of the privately
owned and maintained off-street parking facility involved.
4)Outlines the requirements for, and limitations on, the removal
of vehicles parked on private property, as specified (Vehicle
Code Section 22658).
FISCAL EFFECT: None
COMMENTS:
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1)Bill Summary. This bill clarifies that a city or a county may
enact an ordinance that allows the owners or operators of
privately owned and maintained off-street parking facilities
to regulate parking in their facilities. The bill requires
operators of a privately owned and maintained off-street
parking facility to include in any parking fee invoice
instructions on how to contest the notice of parking
violation. The bill also prohibits information regarding
parking violations from being filed with, or transmitted to,
the DMV for the purpose of a DMV "hold" on issuing or renewing
a license or refusing to renew a vehicle registration. The
bill also requires a city or county to include in its
ordinance or resolution a number of consumer protection
measures, such as procedures for dispute resolution,
prohibitions against incentives for issuing or upholding
invoices, a cap on a parking invoice fee, and measures to
prevent a private parking regulator from representing itself
as a government agency. This bill is sponsored by the City of
Walnut Creek.
2)Author's Statement. According to the author, "Some cities and
counties have ordinances authorizing private parking lot
operators to regulate private lots and enforce parking
violations through the use of invoices. However, state law
does not prescribe whether or not private companies can
enforce meter limits in private parking lots, even when local
jurisdictions authorize a company to do so. Clarity is needed
to protect all parties and maintain existing parking
enforcement policies."
3)Background. In December of 2011, the Attorney General issued
an opinion that was sought to answer four questions:
a) Does California Vehicle Code Section 22658, or any other
state law, authorize private property owners to issue
parking citations imposing monetary sanctions to the owners
of vehicles parked on their property?
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b) May private property owners acquire, by means of issuing
a written warning or posting signage, the right to issue
parking citations imposing monetary sanctions to the owners
of vehicles parked on their property?
c) May persons, who tow and impound vehicles under Vehicle
Code Section 22658, require payment of parking citations
that have been issued by private property owners, in
addition to the towing and storage charges?
d) What rights or remedies are available to the owners of
vehicles that have received parking citations imposing
monetary sanctions issued by private property owners?
The opinion concluded that:
a) Neither California Vehicle Code Section 22658, nor any
other state law, authorizes private property owners to
issue parking citations imposing monetary sanctions to the
owners of vehicles parked on their property.
b) Absent statutory authorization, private property owners
may not acquire, by means of issuing a written warning or
posting signage, the right to issue parking citations
imposing monetary sanctions to the owners of vehicles
parked on their property.
c) Persons who tow and impound vehicles under Vehicle Code
Section 22658 may not require payment of parking citations
that have been issued by private property owners.
d) Owners of vehicles who have received parking citations
imposing monetary sanctions issued by private property
owners or their agents do not have rights or remedies per
se, but the citations are unenforceable against the vehicle
owners.
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Subsequent to this opinion, a class action case was filed in
August of 2012 alleging that the opinion, together with
various provisions of the Vehicle Code, preclude local
governments in California from enacting ordinances allowing
the private issuance of invoices for parking fees. The case
involved a private parking operator, Regional Parking
Corporation, doing business pursuant to a Walnut Creek
ordinance governing private parking lots.
In its order after hearing this case, the Contra Costa
Superior Court (Court) noted that, "The Opinion is silent on
the question of whether a local government ordinance would be
sufficient 'statutory authorization' to allow a private
property owner to issue parking citations. California courts
interpret the term 'statute' to include municipal
ordinances?Thus, the Court reads the Opinion as including
ordinances as potential statutory authorization for the
private issuance of citations."
The Court then considered a question not addressed in the
opinion: whether a local government can enact an ordinance
allowing for private property owners to issue citations, or
whether any such ordinance would necessarily be preempted by
state law. The Court found that, "Because the Vehicle Code
for the most part does not address the regulation of private
parking, the Court also finds that there is no implied
preemption of the Ordinance. What little state law there is
on the topic of private parking expressly provides for the
possibility
of local regulation thereof?There is no statutory scheme fully
occupying the field so as to impliedly preempt local
regulation.
"Nor is the plaintiff persuasive in arguing that because the
City of Walnut Creek cannot contract with private parties to
issue citations for public parking violations, it cannot
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authorize private parties to impose fees for unauthorized
parking on their own property?Although local governments are
restricted from contracting out the performance of their
public functions - such as the enforcement of public parking
laws - the issuance
of invoices for unauthorized parking on private property is
not such a public function."
This bill will clarify, in state statute, that cities and
counties have the authority to enact ordinances allowing
operators of privately owned and maintained off-street parking
facilities to regulate unauthorized parking in their
facilities. This bill also contains consumer protections for
contesting violations and preventing adverse impacts on
driver's licenses or vehicle registrations.
4)Previous Legislation. AB 2381 (Bonilla) of 2014 would have
allowed cities or counties to authorize, via ordinance or
resolution, operators of privately owned and maintained
off-street parking facilities to regulate unauthorized parking
in their facilities. This bill was held in Senate
Transportation and Housing Committee.
5)Arguments in Support. The City of Walnut Creek, sponsor of
this bill, states, "(T)he validity of the Walnut Creek
ordinance has been put into question by an Attorney General
legal opinion which states that California statute must
authorize such an ordinance. This opinion, while not binding,
has had the unfortunate consequence of discouraging other
cities from similar ordinances that would benefit their
downtown business associations, local merchants and
communities. AB 451 will provide clarity to the matter by
addressing the Attorney General's opinion and clearly stating
that such ordinances are valid."
6)Arguments in Opposition. None on file.
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REGISTERED SUPPORT / OPPOSITION:
Support
City of Walnut Creek [SPONSOR]
California Retailers Association
California State Association of Counties
League of California Cities
Regional Parking, Inc.
Opposition
None on file
Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958
AB 451
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