BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2147|
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                                   THIRD READING 


          Bill No:  AB 2147
          Author:   Eggman (D) 
          Amended:  4/14/16 in Assembly
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  5-1, 6/21/16
           AYES:  Hancock, Anderson, Glazer, Liu, Stone
           NOES:  Leno
           NO VOTE RECORDED:  Monning

           ASSEMBLY FLOOR:  76-1, 4/21/16 - See last page for vote

           SUBJECT:   Vehicles:  impoundment:  prostitution


          SOURCE:    Author
          
          DIGEST:   This bill allows the seizure and impoundment of a  
          vehicle used for the solicitation of prostitution without the  
          current requirement that the local governing body approve an  
          ordinance allowing the seizure and impoundment.


          ANALYSIS: 


          Existing law:


          1)Provides that any person who maintains or commits any public  
            nuisance for which the punishment is not otherwise prescribed,  
            or who willfully omits performing any legal duty relating to  
            the removal of a public nuisance, is guilty of a misdemeanor  








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            punishable by up to six months in the county jail and/or a  
            fine up to $1,000. (Penal Code § 372.) 


          2)Authorizes a local county, city or city and county to adopt a  
            five-year pilot program for declaring a motor vehicle used in  
            prostitution and related offenses to be a nuisance. (Vehicle  
            Code § 22659.5.) An ordinance adopted pursuant to Vehicle Code  
            Section 22659.5 shall have the following features: 


             a)   Where the defendant is arrested and taken into custody,  
               the arresting officer may remove the vehicle from a public  
               highway or public land. The owner may retrieve the vehicle  
               through proof of registration and payment of applicable  
               fees and costs. (Vehicle Code §§ 22651 and 22850 et seq.)

             b)   The nuisance provisions apply only if the defendant was  
               convicted of a specified offense, or a lesser included  
               offense as part of a plea bargain.

             c)   The defendant can be ordered not to use the vehicle  
               again for purposes of committing prostitution or a related  
               offense. Violation of such an order may result in  
               impoundment of the vehicle for up to 48 hours. 


          3)Provides that any person who maintains or commits any public  
            nuisance for which the punishment is not otherwise prescribed  
            or who willfully omits performing any legal duty relating to  
            the removal of a public nuisance is guilty of a misdemeanor  
            punishable by up to six months in the county jail and/or a  
            fine up to $1,000. (Penal Code § 372) 


          This bill:


          1)Specifies that the impoundment procedures shall apply to  
            offenders buying or purchasing sexual services. 


          2)Imposes the same procedures for impoundment, storage, and  
            release of the vehicle as are provided under the  







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            ordinance-authorizing provisions under existing law, as they  
            apply to solicitation of prostitution offenses, without the  
            requirement that an ordinance be passed in order to authorize  
            local authorities to make use of the impounding authority. The  
            following procedures shall apply:


             a)   Requires that within two working days after impoundment,  
               the impounding agency shall send a notice by certified  
               mail, return receipt requested, to the legal owner of the  
               vehicle, at the address obtained from the Department of  
               Motor Vehicles, informing the owner that the vehicle has  
               been impounded;

             b)   States the notice shall also include notice of the  
               opportunity for a post-storage hearing to determine the  
               validity of the storage or to determine mitigating  
               circumstances establishing that the vehicle should be  
               released. The impounding agency shall be prohibited from  
               charging for more than five-days' storage if it fails to  
               notify the legal owner within two working days after the  
               impoundment when the legal owner redeems the impounded  
               vehicle;

             c)   Provides that the impounding agency shall maintain a  
               published telephone number that provides information 24  
               hours per day regarding the impoundment of vehicles and the  
               rights of a legal owner and a registered owner to request a  
               hearing;

             d)   Mandates the notice include all of the following  
               information: the name, address, and telephone number of the  
               agency providing the notice; the location of the place of  
               storage and description of the vehicle, that shall include,  
               if available, the model or make, the manufacturer, the  
               license plate number, and the mileage; the authority and  
               purpose for the removal of the vehicle; and, a statement  
               that in order to receive a post-storage hearing, the  
               owners, or their agents, shall request the hearing in  
               person, writing, or by telephone within 10 days of the date  
               appearing on the notice;

             e)   States the post-storage hearing shall be conducted  
               within 48 hours of the request, excluding weekends and  







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               holidays. The public agency may authorize one of its own  
               officers or employees to conduct the hearing if that  
               hearing officer is not the same person who directed the  
               seizure of the vehicle. Failure of the legal and the  
               registered owners, or their agents, to request or to attend  
               a scheduled hearing shall satisfy the post-storage hearing  
               requirement;

             f)   Requires the agency employing the person who directed  
               the storage to be responsible for the costs incurred for  
               towing and storage if it is determined in the post-storage  
               hearing that reasonable grounds for the storage are not  
               established. Any period during which a vehicle is subjected  
               to storage under an ordinance adopted pursuant to this bill  
               shall be included as part of the period of impoundment;

             g)   States the impounding agency shall release the vehicle  
               to the registered owner or his or her agent prior to the  
               end of the impoundment period under any of the following  
               circumstances:

                i)      The driver of the impounded vehicle was arrested  
                  without probable cause;

                ii)     The vehicle is a stolen vehicle;

                iii)    The vehicle is subject to bailment and was driven  
                  by an unlicensed employee of a business establishment,  
                  including a parking service or repair garage;

                iv)     The driver of the vehicle is not the sole  
                  registered owner of the vehicle and the vehicle is being  
                  released to another registered owner of the vehicle who  
                  agrees not to allow the driver to use the vehicle until  
                  after the end of the impoundment period;

                v)      The registered owner of the vehicle was neither  
                  the driver nor a passenger of the vehicle at the time of  
                  the alleged violation, or was unaware that the driver  
                  was using vehicle to engage in solicitation of  
                  prostitution;

                vi)     A spouse, registered domestic partner, or other  
                  affected third party objects to the impoundment of the  







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                  vehicle on the grounds that it would create a hardship  
                  if the subject vehicle is the sole vehicle in a  
                  household; and 

                vii)    The hearing officer shall release the vehicle  
                  where the hardship to a spouse, registered domestic  
                  partner, or other affected third party created by the  
                  impoundment of the subject vehicle, or the length of the  
                  impoundment, outweigh the seriousness and the severity  
                  of the act in which the vehicle was used.

             h)   Provides that notwithstanding any provision of law, if a  
               motor vehicle is released prior to the conclusion of the  
               impoundment period because the driver was arrested without  
               probable cause, neither the arrested person nor the  
               registered owner of the motor vehicle is responsible for  
               towing and storage charges nor shall the motor vehicle be  
               sold to satisfy those charges;

             i)   Requires that the registered owner or his or her agent  
               be responsible for all towing and storage charges related  
               to the impoundment except as otherwise provided; 

             j)   States no lien sale processing fees shall be charged to  
               the legal owner who redeems the vehicle prior to the 15th  
               day of impoundment. Neither the impounding authority nor  
               any vehicle having possession of the vehicle shall collect  
               from the legal owner fees associated with towing a storage,  
               as specified, unless the legal owner voluntarily requests a  
               post storage hearing;

             aa)  Provides a person operating or in charge of a storage  
               facility where vehicles are stored, as specified, shall  
               accept a valid bank credit card or cash for payment of  
               towing, storage and related fees by a legal or registered  
               owner or the owner's agent claiming the vehicle. A credit  
               card or debit card shall be in the name of the person  
               presenting the card. The term "credit card" does not  
               include one issued by a retail seller and is defined in the  
               Civil Code;

             bb)  Requires that if a person operating or in charge of a  
               storage facility, as specified, does not allow for the use  
               of a credit card or cash, he or she shall be civilly liable  







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               to the owner of the vehicle or the person who tendered the  
               fees for four times the amount of the towing, storage, and  
               related fees not to exceed $500;

             cc)  Mandates a person operating or in charge of the storage  
               facility, as specified, must have sufficient funds on the  
               premises during normal business hours to accommodate, and  
               make change for a reasonable monetary transaction;

             dd)  States credit charges for towing and storage services  
               shall comply with relevant sections of the Civil Code. Law  
               enforcement agencies may include the costs of providing for  
               payment by credit when making agreements with towing  
               companies on rates;

             ee)  States a vehicle removed and seized under an ordinance  
               adopted pursuant to this bill shall be released to the  
               legal owner of the vehicle or the legal owner's agent prior  
               to the end of the impoundment period if all of the  
               following conditions are met:

                i)      The legal owner is a motor vehicle dealer, bank,  
                  credit union, acceptance corporation, or other licensed  
                  financial institution legally operating in this state,  
                  or is another person who is not the registered owner and  
                  holds a security interest in the vehicle; 

                ii)     The legal owner or the legal owner's agent pays  
                  all towing and storage fees related to the seizure and  
                  impoundment of the vehicle; 

                iii)    The legal owner, or his or her agent, presents to  
                  the law enforcement agency, impounding agency, person in  
                  possession of the vehicle or any person acting on behalf  
                  of those agencies, a copy of the assignment, as  
                  specified, a release from the one responsible  
                  governmental agency, a government-issued photographic  
                  identification card and any one of the following as  
                  determined by the legal owner or his or her agent: a  
                  certificate of repossession for the vehicle; a security  
                  agreement for the vehicle, and; title showing proof of  
                  ownership, as specified;

                iv)     The law enforcement agency, impounding agency, or  







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                  any person acting on behalf of those agencies may  
                  require the agent of the legal owner to produce a  
                  photocopy or fax of its repossession agency license or  
                  registration issued pursuant to the Business and  
                  Professions Code. Any document may be originals,  
                  photocopies or faxes or may be transmitted  
                  electronically and need not be notarized;

                v)      Administrative costs, as specified, shall not be  
                  charged to the legal owner, as specified, unless he or  
                  she requests a post-storage hearing. No agency may  
                  require a post-storage hearing as a requirement for  
                  release of a vehicle. Copies of all documents must be  
                  provided to the legal owner except for the vehicle  
                  evidentiary log book. The legal owner shall indemnify  
                  and hold harmless a storage facility from any claims  
                  arising out of the release of the vehicle to the legal  
                  owner or his or her agent and from any damage to the  
                  vehicle after its release, including the reasonable  
                  costs associated with defending any such claims; and 

                vi)     A failure by a storage facility to comply with any  
                  applicable conditions set forth in this bill shall not  
                  affect the right of the legal owner or his or her agent  
                  to retrieve the vehicle if all the conditions are met,  
                  as specified.


          3)States a legal owner, or his or her agent, who meets the  
            requirements for release of a vehicle, as specified, shall not  
            be required to request a post-storage hearing as a requirement  
            for release of the vehicle to the legal owner or the legal  
            owner's agent.


          4)Provides a legal owner, or his or her agent, who meets the  
            requirements for release of a vehicle, as specified, shall not  
            release the vehicle to the registered owner of the vehicle or  
            an agent of the registered owner unless the registered owner  
            is a rental car agency, until after the termination of the  
            impoundment period.


          5)States prior to relinquishing the vehicle, the legal owner may  







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            require the registered owner to pay all towing and storage  
            charges related to the seizure and impoundment.


          6)Provides a vehicle removed and seized pursuant to an ordinance  
            adopted pursuant to this bill shall be released to a rental  
            car agency prior to the end of the impoundment period if the  
            agency is either the legal owner or registered owner of the  
            vehicle and the agency pays all towing and storage fees  
            related to the seizure and impoundment of the vehicle. 


          7)States the owner of a rental vehicle that was seized under an  
            ordinance adopted pursuant to this bill may continue to rent  
            the vehicle upon recovery of the vehicle. However, the rental  
            car agency shall not rent another vehicle to the driver of the  
            vehicle that was seized until the impoundment period has  
            expired. The rental car agency may require the person to whom  
            the vehicle was rented to pay all towing and storage charges  
            related to the seizure and impoundment.


          Background


          Existing law authorizes local jurisdictions to adopt ordinances  
          declaring vehicles used in the commission of prostitution to be  
          impounded as a public nuisance. Vehicle Code Section 22659.5 was  
          enacted in 1993 and allowed a local government to impound a  
          vehicle after a conviction for prostitution, as specified, for  
          up to 48 hours. AB 1332 (Gotch, Chapter 485, Statutes of 1993)  
          declared legislative intent as follows: 


            The Legislature hereby finds and declares that under the  
            Red Light Abatement Law every building or place used for,  
            among other unlawful purposes, prostitution is a nuisance  
            which shall be enjoined, abated, and prevented, and for  
            which damages may be recovered. It is recognized that in  
            many instances vehicles are used in the commission of acts  
            of prostitution and that if these vehicles were subject to  
            the same procedures currently applicable to buildings and  
            places, the commission of prostitution in vehicles would  
            be vastly curtailed. The Legislature, therefore, intends  







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            to enact a five-year pilot program in order to ascertain  
            whether declaring motor vehicles a public nuisance when  
            used in the commission of acts of prostitution would have  
            a substantial effect upon the reduction of prostitution in  
            neighborhoods, thereby serving the local business owners  
            and citizens of our urban communities. 


          In 2009, the pilot program was extended to be a statewide  
          program which permitted the same provisions and procedures in  
          this bill to be adopted by local ordinance through passage of AB  
          14 (Fuentes, Chapter 210, Statutes of 2009). AB 2147 carves out  
          the solicitation of prostitution offenses from pimping and  
          pandering offenses. The programs for solicitation would be  
          authorized under state law, while programs for pimping and  
          pandering would continue to need local authorization under  
          Vehicle Code Section 22659.5. Additionally, this bill limits the  
          solicitation offenses to buyers rather than persons selling  
          sexual services.  The procedures are identical to those that  
          must currently be adopted by a local ordinance.




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/24/16)


          California District Attorneys Association
          California Police Chiefs Association
          California State Sheriffs' Association
          San Joaquin County District Attorney's Office


          OPPOSITION:   (Verified6/24/16)




          California Attorneys for Criminal Justice 








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          ARGUMENTS IN SUPPORT:  According to the San Joaquin District  
          Attorney's Office:
          
            This bill would allow for the impoundment of vehicles  
            belonging to sex purchasers, including those arrested for  
            purchasing sex, or attempting to purchase sex, from  
            children who are victims of human trafficking. The number  
            of children who become victims of human trafficking is  
            staggering, on a local, statewide and national level.  
            These victims are our children, our future, deserving of  
            dignity and respect which they do not encounter when they  
            are repeatedly purchased and abused on a daily basis. The  
            act of purchasing sex should not simply be considered an  
            act of prostitution, the extent of this crime runs much  
            deeper and the mind set surrounding these criminal acts  
            must change. 

            In many instances, those who purchase, or attempt to  
            purchase, sex from another, whether a child or an adult,  
            can only be arrested and prosecuted for a misdemeanor  
            offense. These offenses carry little or no consequence.  
            Assembly Bill 2147 would provide a mechanism to impound  
            vehicles belonging to sex purchasers, providing an  
            additional penalty designed to curtail the demand and  
            impede the purchasers repeated conduct.  


          ARGUMENTS IN OPPOSITION:  The California Attorneys for Criminal  
          Justice opposes this bill stating:

            A vehicle is "property" and accordingly, the Due Process  
            clauses of the Federal and State Constitutions apply to  
            their seizure. A person's property may not be confiscated  
            by the state without notice and an opportunity to be  
            heard.  In most cases the hearing must be the property  
            taken before the defendant is provided a hearing pursuant  
            to the due process clause. There is nothing in these acts  
            that is "unusual" such that it would trigger a  
            constitutional seizure of a vehicle prior to a noticed  
            hearing. See Bryte v. City of La Mesa 207 Cal. App. 3d 687  
            (1989)

            The use of a collateral hearing, such as a hearing at the  







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            arresting agency is insufficient to satisfy due process  
            requirements, whether before or after such a seizure of  
            property.

            Further, the seizure of a vehicle not registered to the  
            actor at issue is also a violation of the State and  
            Federal Constitutions as well as causing undue harm to an  
            otherwise completely innocent citizen. This person would  
            then be deprived of their property of ran unknown period  
            of time after taking of the vehicle, left unable to take  
            children to school, shop for groceries or go to their  
            place of worship.


          ASSEMBLY FLOOR:  76-1, 4/21/16
          AYES:  Achadjian, Alejo, Arambula, Atkins, Baker, Bigelow,  
            Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos,  
            Chang, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,  
            Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            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, Rodriguez, Salas, Santiago, Steinorth, Mark Stone,  
            Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood,  
            Rendon
          NOES:  Travis Allen
          NO VOTE RECORDED:  Chau, Quirk, Ridley-Thomas

          Prepared by:Mary Kennedy / PUB. S. / 
          6/24/16 14:33:39


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