BILL ANALYSIS Ó AB 451 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 451 (Bonilla) As Amended June 22, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |79-0 |(April 16, |SENATE: |39-0 | (July 6, 2015) | | | |2015) | | | | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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 AB 451 Page 2 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 AB 451 Page 3 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: AB 451 Page 4 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; AB 451 Page 5 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, AB 451 Page 6 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 AB 451 Page 7 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 AB 451 Page 8 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. AB 451 Page 9 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