BILL ANALYSIS Ó
AB 451
Page 1
ASSEMBLY THIRD READING
AB
451 (Bonilla)
As Introduced February 23, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+------------------------+--------------------|
|Local |9-0 |Maienschein, Gonzalez, | |
|Government | |Alejo, Chiu, Cooley, | |
| | |Gordon, Holden, Linder, | |
| | |Waldron | |
| | | | |
| | | | |
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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.
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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 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:
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(1) Options for a hearing in person or by mail;
(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).
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FISCAL EFFECT: None
COMMENTS:
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
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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?
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:
i) 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.
ii) 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
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vehicles parked on their property.
iii) 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.
iv) 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.
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
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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
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. AB 2381 was held in the Senate
Transportation and Housing Committee.
5)Arguments in Support. The City of Walnut Creek, sponsor of this
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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.
Analysis Prepared by:
Angela Mapp / L. GOV. / (916) 319-3958 FN:
0000119