BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 451


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          451 (Bonilla)


          As Amended  June 22, 2015


          Majority vote


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          |ASSEMBLY:  |79-0  |(April 16,     |SENATE: |39-0  | (July 6, 2015)  |
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          Original Committee Reference:  L. GOV.




          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.  


          The Senate amendments: 


          1)Clarify that an owner or operator of a private, off-street  
            parking facility must post a specified notice at each entrance  
            to the facility to the effect that violators of moving vehicle  
            laws may be subject to a parking invoice fee.


          2)Provide that, if applicable, a parking receipt distributed to  








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            drivers shall include language explicitly stating that  
            violators may be subject to a parking invoice fee.


          3)Make technical and clarifying changes.


          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  








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            Code Section 22658).




          AS PASSED BY THE ASSEMBLY, this bill:


          1)Provided 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)Provided 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)Provided 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)Required 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:








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             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;


                  (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;









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             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]."


          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.  This bill requires  
            owners or 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.  Owners or operators must also provide notice at  
            each entrance to their facilities and on any receipts issued  
            that violators may be subject to a parking fee invoice.


            This 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.  In  
            addition, this bill requires a city or county to include in  
            its ordinance or resolution a number of consumer protection  
            measures, such as procedures for dispute resolution,  








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            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?


             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  








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               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  
                 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  








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            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  
            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  
            providing notice of possible fees, contesting violations, and  
            preventing adverse impacts on drivers' licenses or vehicle  
            registrations.








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          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 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:  
          0001064