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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