BILL ANALYSIS Ó
SENATE COMMITTEE ON TRANSPORTATION AND HOUSING
Senator Jim Beall, Chair
2015 - 2016 Regular
Bill No: AB 451 Hearing Date: 6/16/2015
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|Author: |Bonilla |
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|Version: |2/23/2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant|Alison Dinmore |
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SUBJECT: Private parking facilities
DIGEST: This bill permits cities and counties, by ordinance or
resolution, to authorize operators of privately owned and
maintained off-street parking facilities to regulate
unauthorized parking in their facilities.
ANALYSIS:
Existing law:
1)Authorizes any city or county, by ordinance or resolution, to
authorize privately owned and maintained off-street parking
facilities to provide parking to the public. Upon enactment
of the ordinance or resolution, specific traffic laws apply to
these facilities, including those related to basic speed law,
reckless driving, speed contests, and exhibitions of speed.
2)Prohibits the enactment of the authorization under (1) above
if the operator of the facility fails to post a conspicuous
notice of a specified size that the parking facility is
subject to public traffic regulations and control.
3)Prohibits the enactment of the authorization under (1) above
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.
4)Outlines the requirements for, and limitations on, the removal
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of vehicles parked on private property.
This bill:
1)Provides that if a city or county authorizes the owner or
operator of a privately owned and maintained off-street
parking facility to provide parking to the public, a city or
county may include in that ordinance or resolution
authorization for the owner or operator to regulate
unauthorized parking in that facility.
2)Provides that if a city or county has exercised its authority
under this section and the parking facility owner or operator
regulates unauthorized parking in the parking facility, the
owner or operator shall include instructions for how to
contest a parking fee invoice in the parking fee invoice. The
owner or operator shall not file with or transmit the parking
invoice to the Department of Motor Vehicles for the purpose of
collecting unpaid parking fees by refusing to issue or renew a
license or refusal to renew vehicle registration.
3)Provides that a city or county that authorizes private parking
under this section must include the following:
a) Procedures for dispute resolution in accordance with
state law governing parking violations, which include:
i. A written and publicly available dispute resolution
policy that includes specified time periods for
notification, review, and appeal.
ii. An administrative hearing process that includes:
A. Options for a hearing in person or by mail;
B. Administrative review;
C. A hearing by a third-party examiner who has
been adequately trained and who provides an
independent, objective, fair, and impartial review;
D. Personal delivery or delivery by
first-class mail of an examiner's decision; and
E. Authority for the examiner to allow payment
AB 451 (Bonilla) Page 3 of ?
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 percentage 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.
d) Measures to prevent a private parking owner from
representing itself as a government enforcement agency,
including: 1) a prohibition against using terminology in
ordinances or resolutions and in parking fee invoices, and
2) a requirement for a conspicuous statement on the parking
fee invoices, to the effect, stating: "This parking charge
notice is not issued by the [local government]."
COMMENTS:
1)Purpose of the bill. According to the author, many parking
lots in California are privately owned. In the City of Walnut
Creek, for example, 70% of downtown parking spaces are
privately owned. For this reason, some cities, such as Walnut
Creek, have enacted ordinances authorizing private parking lot
operators to regulate their lots and enforce parking
violations through the use of invoices. Metered parking is
often recommended by parking lot managers and adopted by local
governments.
Current 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.
This bill addresses the problem by providing clarity to cities
and counties by authorizing them to adopt parking ordinances
that best facilitate economic activity within their
jurisdiction.
2)Background of inadequate authorization. In 2011, the Attorney
General concluded that state law does not authorize private
property owners to issue parking citations imposing monetary
sanctions to the owners of vehicles parked on their property.
The Attorney General reasoned that issuing "citations,"
"notices of parking violations," and otherwise imposing
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monetary sanctions are traditionally municipal functions;
absent express authority from the Legislature, only a
governmental entity may issue parking citations that impose
monetary sanctions.
Shortly after this opinion was released, a class action case
of parking invoice recipients was filed alleging that the
Attorney General opinion and the Vehicle Code preclude local
governments in California from enacting ordinances allowing
the private issuance of invoices for parking fees. In that
case, the City of Walnut Creek passed an ordinance allowing
private parking operators to regulate parking. A class of
plaintiffs alleged that the invoices they received were
unlawful and an unauthorized penalty assessed by the
defendant, a manager of a private parking facility. The
Superior Court of Contra Costa held that ordinances are
statutory authorization for the private issuance of citations.
It further held that because the Vehicle Code does not
address the regulation of private parking, there is no implied
state preemption of the Walnut Creek Ordinance. For this
reason, the court found the Walnut Creek ordinance to be valid
and not preempted by state law.
The holding in that case, however, is limited in application
to Walnut Creek and does not apply to other jurisdictions.
This bill would clarify that cities and counties across the
state have the authority to enact ordinances allowing
operators of privately owned and maintained off-street parking
facilities to regulate unauthorized parking.
3) Empty threat? The sponsor states that the intent of the
bill is to facilitate the flow of traffic and ease parking in
busy shopping areas. In Walnut Creek, for example, hikers
park early on Saturday mornings near the downtown for day-long
climbs at Mount Diablo, taking up limited parking spaces near
high-end shopping. Consumers, therefore, become frustrated
that they cannot find parking, and, in some cases, go
somewhere else. Presently, the only recourse for private
parking operators is to tow an unauthorized vehicle; operators
hope that receiving a parking invoice will encourage consumers
to abide by time restrictions and free up limited parking for
other consumers.
Those in support state that, even though this bill authorizes
them to do so, the bill is not intended to generate money for
AB 451 (Bonilla) Page 5 of ?
unauthorized parking. Supporters have also stated, however,
that private parking operators could and likely will retain
lists of license plates of "repeat offenders" so that
operators may exercise their right to prohibit offenders from
re-entering their private parking lots. While the bill
expressly prohibits the private parking operators from
remitting information to and therefore receiving identifiable
information from the DMV, it is not clear whether parking
operators may obtain personal information from another source.
This personal information could be used to take the parking
violator to small claims court to obtain the parking invoice
fee or send the parking violator to collections for failure to
pay. When asked, the supporters stated that it is unlikely a
private parking operator would pursue a violator in small
claims court for a mere $25 fee. The hope is that the receipt
of an invoice will be enough of an incentive to prevent
unauthorized parking, and that a violator will simply pay the
invoice.
4) Prior legislation. This bill is similar to AB 2381
(Bonilla) that was held at the author's request in this
committee last year. That bill would have allowed cities or
counties to authorize, by ordinance or resolution, operators
of privately owned and maintained off-street parking
facilities to regulate unauthorized parking in their
facilities. The analysis for AB 2381 in this committee
pointed out potential abuses of private enforcement,
including: 1) unfair or arbitrary adjudication of contested
violation notices, 2) private entities masquerading as public
law enforcement, 3) exorbitant fines, and 4) promotion of
bounty hunter activity in issuing violation notices.
This bill has addressed those concerns by: 1) establishing
dispute resolution processes similar to those set forth in
existing state law, 2) requiring measures to prevent a private
parking owner or operator from representing itself as a local
government, 3) capping parking invoice fees, and 4)
prohibiting incentives to issue invoices. Additionally, this
bill replaces the terms "violation" and "penalties" used in AB
2381 that are associated with governmental sanctions with the
terms "invoices" and "fees," which are more appropriate for
non-governmental entities.
5) Advance notice to consumers. While drivers are aware that
parking violations on city or county streets may result in a
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fine or citation, drivers will not be aware that a private
parking operator may impose a parking fee invoice for
unauthorized parking. The author will accept amendments in
committee to ensure that if a city or county has exercised its
authority pursuant to subparagraph (2) (A) of Section 21107.8
of the Vehicle Code, private parking facility owners or
managers shall post signage in a conspicuous place at each
entrance to that off-street parking facility in a notice not
less than 17 by 22 inches in size with lettering not less than
one inch in height notifying drivers that parking violators
may be subject to a parking fee invoice. In addition, if
applicable, any parking tickets or receipts distributed to
drivers must also include language explicitly stating that
those in violation may be subject to a parking fee invoice.
Assembly votes:
Floor: 79-0
L Gov: 9-0
Related Legislation:
AB 2381 (Bonilla, 2014) - would have permitted cities and
counties, by ordinance or resolution, to authorize operators of
privately owned and maintained off-street parking facilities to
regulate parking in their facilities. This bill was held at the
author's request in the Senate Transportation and Housing
Committee.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local:
No
POSITIONS: (Communicated to the committee before noon on
Wednesday,
June 10, 2015.)
SUPPORT:
City of Walnut Creek (sponsor)
California Retailers Association
California State Association of Counties
City of Indian Wells
League of California Cities
Regional Parking, Inc.
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OPPOSITION:
None received
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