BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 451|
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THIRD READING
Bill No: AB 451
Author: Bonilla (D)
Amended: 6/22/15 in Senate
Vote: 21
SENATE TRANS. & HOUSING COMMITTEE: 11-0, 6/16/15
AYES: Beall, Cannella, Allen, Bates, Gaines, Galgiani, Leyva,
McGuire, Mendoza, Roth, Wieckowski
ASSEMBLY FLOOR: 79-0, 4/16/15 - See last page for vote
SUBJECT: Private parking facilities
SOURCE: City of Walnut Creek
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
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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
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)Prohibits the enactment of the authorization under this
section if the operator of the facility fails to post a
conspicuous notice of a specified size that violators may be
subject to a parking invoice fee. If applicable, a parking
receipt distributed to drivers shall include language
explicitly stating that violators may be subject to a parking
invoice fee.
4)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:
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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:
(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 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.
5)Requires 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
Purpose of the bill. According to the source, 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
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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.
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 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
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regulate unauthorized parking.
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
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.
Prior Legislation
This bill is similar to AB 2381 (Bonilla, 2014) that was held at
the author's request in Senate Transportation and Housing
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 the Senate Transportation and Housing Committee
pointed out potential abuses of private enforcement, including:
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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. It also requires parking owners to provide notice on
a conspicuous sign at each entrance of the parking facility and,
if applicable, on a parking receipt, that violators may be
subject to an invoice
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/22/15)
City of Walnut Creek (source)
California Retailers Association
City of Indian Wells
League of California Cities
Regional Parking, Inc.
OPPOSITION: (Verified6/22/15)
None received
ASSEMBLY FLOOR: 79-0, 4/16/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
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Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Perea, Rendon, Ridley-Thomas, Rodriguez, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Quirk
Prepared by:Alison Dinmore / T. & H. / (916) 651-4121
6/25/15 8:52:06
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