BILL ANALYSIS                                                                                                                                                                                                    Ó






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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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