BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 14 (Fuentes)
As Amended June 3, 2009
Hearing date: June 9, 2009
Vehicle Code
JM:br
VEHICLE NUISANCES - SEIZURE AND IMPOUNDMENT
USE OF VEHICLE FOR PROSTITUTION OR ILLEGAL DUMPING
HISTORY
Source: Author
Prior Legislation: AB 1751 (Fuentes) - 2008, vetoed
AB 1724 (Jones) - 2008, vetoed
Support: Los Angeles County District Attorney's Office;
California State Sheriffs' Association; Los Angeles
County Sheriff's Department; Association for Los
Angeles Deputy Sheriffs; Riverside Sheriffs'
Association; City of Los Angeles; California State
Association of Counties; City of Lakewood; City of
Lynwood; City of Moreno Valley; California Public
Parking Association; California Peace Officers'
Association; California Police Chiefs Association
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
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SHOULD ANY COUNTY, CITY OR CITY AND COUNTY BE AUTHORIZED TO
ENACT A NUISANCE ABATEMENT ORDINANCE UNDER WHICH A MOTOR VEHICLE
USED IN ILLEGAL DUMPING OR PROSTITUTION SHALL BE SUBJECT TO
SEIZURE AND IMPOUNDMENT FOR UP TO 30 DAYS IF THE VEHICLE
OPERATOR HAS A PRIOR CONVICTION FOR SUCH AN OFFENSE, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to authorize a local government
entity to enact a nuisance abatement ordinance under which a
vehicle used in illegal dumping or prostitution would be subject
to seizure and impoundment for up to30 days if the operator of
the vehicle has a prior conviction for such an offense, as
specified, and the person was validly arrested in the current
matter.
Existing law 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 6 months in the county jail
and/or a fine up to $1000. (Pen. Code 372.)
Existing law 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.
(Veh. Code 22659.5.) An ordinance adopted pursuant to Vehicle
Code Section 22659.5 shall have the following features:
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. (Veh. Code 22651 and 22850 et seq.)
The nuisance provisions apply only if the
defendant was convicted of a specified offense, or a
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lesser included offense as part of a plea bargain.
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.
Existing law 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 $1000. (Pen. Code 372.)
Existing law prohibits any person from dumping or causing to
be dumped any waste matter, including rocks or dirt, in or
upon any public or private highway or road, without the
consent of the owner, or in or upon any public park or other
public property, without the consent of the state or local
agency having jurisdiction over the highway, road, or
property. The penalty is an infraction with a penalty of
$250-$1000 plus penalty assessments for a first offense.
(Pen. Code 374.3.)
Existing law provides that dumping commercial quantities of
waste in violation of Penal Code Section 374.3 is a misdemeanor,
punishable by imprisonment in the county jail for up to six
months and a mandatory fine of between $1000 and $3000 for a
first conviction, between $3000 and $6000 for a second
conviction, and between $6000 and $10,000 for a third or
subsequent conviction. (Pen. Code 374.3, subd. (h).)
Existing law defines commercial quantities of waste as either
waste generated in the course of a business or trade, or an
amount equal to one cubic yard. (Pen. Code 374.3, subd. (h).)
Existing law authorizes the impoundment and, in specific
instances, civil forfeiture of a motor vehicle when the
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registered owner has multiple convictions for misdemeanor
illegal dumping of waste matter. (Veh. Code 23112.7.)
Existing law 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. (Veh. Code 22659.5.) An ordinance
adopted pursuant to Vehicle Code Section 22659.5 shall
have the following features: 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.
(Veh. Code 22651 and 22850 et seq.)
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.
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.
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. (Veh. Code 22651 and 22850 et seq.)
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.
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
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vehicle for up to 48 hours.
This bill authorizes a city, county, or city and county to adopt
an ordinance declaring a motor vehicle to be a public nuisance
subject to seizure and impoundment for up to 30 days if the
ordinance meets the following conditions:
(A) The motor vehicle is used in the dumping of a
commercial quantity of material or in specified
prostitution offenses and the person involved
in the offense was validly arrested.
(B) The person involved in the offense was
validly arrested.
(C) The person dumping the material has a prior
conviction for dumping (in the case of a
dumping violation seizure); or the person
engaged in the prostitution offense has a prior
conviction for such an offense (in the case of
a prostitution violation seizure).
This bill would require any local ordinance adopted pursuant to
the bill to include due process and specified protections for
innocent owners and community property owners. Any ordinance
shall include the following features:
Within two working days after impoundment, the
impounding agency shall send a notice of the impoundment to
the legal owner of the vehicle.
Notice shall state the opportunity for a post-storage
hearing to determine the validity of the storage or
mitigating circumstances establishing that the vehicle
should be released. The owner may not be charged for more
than five days of storage if he or she does not receive
timely notice.
Notice shall include all of the following information:
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The name, address, and telephone number
of the agency providing the notice;
The location of the place of storage
and description of the vehicle, as specified;
The authority and purpose for the
seizure 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.
The impounding agency shall maintain a (24-hour)
telephone number providing information about the rights of
legal or registered owners to request a hearing.
The hearing shall be conducted within 48 hours of the
request, excluding weekends and holidays. The agency may
authorize one of its own officers or employees to conduct
the hearing if that hearing officer is not the person who
directed the seizure of the vehicle.
The agency employing the person who directed the storage
is responsible for towing and storage costs if reasonable
grounds for the storage are not established at the hearing.
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:
The driver of the vehicle was arrested
without probable cause.
The vehicle was stolen.
The vehicle is subject to bailment and
was driven by an unlicensed employee of a
business establishment, including a parking
service or repair garage.
The driver of the vehicle is not the
sole registered owner of the vehicle and the
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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.
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 the
vehicle to engage in activities allowing
seizure of the vehicle
A spouse, domestic partner, or other party may object to
the impoundment on the grounds that it would create a
hardship because there is no other vehicle available to the
household. The hearing officer shall release the vehicle
where the hardship to the objecting party outweighs the
seriousness of the act in which the vehicle was used.
If a 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 owner
of the vehicle is responsible for towing and storage
charges, nor shall the motor vehicle be sold to satisfy
those charges.
The registered owner or his or her agent shall be
responsible for charges related to the impoundment except
as otherwise provided.
No lien sale fees shall be charged to an owner who
redeems the vehicle prior to the 15th day of impoundment.
Neither the impounding authority nor any person having
possession of the vehicle shall collect fees associated
with towing or storage, as specified, unless the legal
owner voluntarily requests a post-storage hearing.
The vehicle storage facility shall accept a bank card,
as specified, or cash for payment of towing, storage and
related fees. Storage facility operators who do accept a
credit card or cash shall be civilly liable for four times
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the amount of fees, not to exceed $500.
The operator of the storage facility, as specified, must
have sufficient funds on the premises during normal
business hours to accommodate reasonable transactions.
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:
The legal owner is a motor vehicle
dealer or a specified financial institution, or
is another person holding a security interest
in the vehicle.
The legal owner or the legal owner's
agent pays all towing and storage fees related
to the seizure and impoundment of the vehicle.
The legal owner, or his or her agent,
presents a copy of specified documents
establishing the security interest in or
ownership of the vehicle and valid
identification.
Administrative costs shall not be charged to the legal
owner unless he or she requests a post-storage hearing. No
agency may require a post-storage hearing as a requirement
for release. The legal owner shall indemnify a storage
facility from claims arising out of the release of the
vehicle to the legal owner or his or her agent and from any
post-release damage to the vehicle.
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.
A legal owner, or his or her agent, who meets the
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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.
Prior to relinquishing the vehicle, the legal owner may
require the registered owner to pay all towing and storage
charges related to the seizure and impoundment.
An impounded vehicle 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.
The owner of a seized rental vehicle 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 charges related to the
seizure and impoundment.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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According to the author:
Recently, the California Supreme Court, in O'Connell
v. City of Stockton, struck down a vehicle forfeiture
ordinance on the grounds that the area of vehicle
forfeiture is fully occupied by the State, and the
ordinance was therefore preempted by state law.
Although it did not reach the question, the Court was
also concerned about whether the ordinance violated
substantive and procedural due process. This decision
throws into question the authority of cities and
counties to pass vehicle impoundment ordinances. AB
14 expressly grants local governments the authority to
regulate in the area of nuisance abatement vehicle
impoundment so long as certain guidelines are adhered
to. Specifically, AB 14 allows local governments to
adopt ordinances intended to abate nuisances created
by vehicles that are involved in certain
prostitution-related criminal offenses (Penal Code
Sections 647(b), 266h and 266i).
2. Prior Conviction Requirement - Repeat Offenders and the
General Nuisance of Prostitution and Related Activity
This bill includes a requirement that a person whose vehicle is
impounded as a nuisance be previously convicted of the offense
underlying the impoundment. Generally speaking, street
prostitution constitutes a nuisance in many neighborhoods.
Legitimate businesses have difficulty serving customers and
persons purchasing acts of prostitution may leave liquor bottles
and prophylactics in streets.
However, it has also been argued that a person who attempts to
purchase an act of prostitution on one occasion only marginally
contributes to the general nuisance. That is, a single event
will not likely adversely affect the community in a significant
manner. However, where a person repeatedly returns to the
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community to engage in prostitution, such conduct does
substantially contribute to the destruction of the community.
The prostitution activity - and its attendant ills - becomes
entrenched. One could perhaps argue that once is a mistake,
twice is a nuisance.
DOES THE REQUIREMENT OF A PRIOR CONVICTION LIMIT APPLICATION OF
THE LAW TO PERSONS WHO SIGNIFICANTLY CONTRIBUTE TO CREATION AND
MAINTENANCE OF A PROSTITUTION AREA NUISANCE?
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3. O'Connell v. City of Stockton (2007) Struck Down Local
Forfeiture Ordinances as Preempted by State Law
In O'Connell v. City of Stockton (2007) 41 Cal.4th 1061 the
California Supreme Court overturned a Stockton ordinance
allowing forfeiture to the city of any vehicle used to solicit
prostitution or to obtain or attempt to obtain controlled
substances. The court held that the ordinance was preempted by
state law.
As to the Stockton drug forfeiture provisions, the court ruled
that the comprehensive nature of the Uniform Controlled
Substances Act, which includes vehicle forfeiture (Health &
Saf. Code 11469 et seq.), manifest the Legislature's intent
to preclude local regulation. Further, the Stockton ordinance
conflicted with state law because it provided for penalties in
excess of those prescribed by the Legislature.
As to the prostitution related forfeiture provisions, the court
held that the Vehicle Code preempted local ordinances. Vehicle
Code Section 21 expressly states that "no local authority shall
enact or enforce any ordinance on the matters covered by [the
Vehicle Code] unless expressly authorized therein."
Vehicle Code Section 22659.5, subdivision (a), sets out the
limits and requirements for local ordinances declaring vehicles
used in the solicitation of prostitution to be nuisances. Such
ordinances can only be enacted as five-year pilot programs.
Allowed ordinances can include provisions ordering the defendant
not to use the vehicle again and allowing forcible removal of
the vehicles. "Section 22659.5 contains no language, however,
that would allow a local entity such as the City [of Stockton]
here to seize and forfeit a vehicle that, through its use in
soliciting prostitution, has created a public nuisance."
(O'Connell v. City of Stockton, supra, 41 Cal.4th 1061, 1074.)
4. Prior Legislation
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This bill is essentially a combination of two bills from the
2007-2008 legislative session - AB 1751 (Fuentes) and AB 1724
(Jones). The Fuentes bill concerned prostitution and the Jones
bill concerned illegal dumping. Each bill was vetoed because
the Governor, because of the Budget delay, signed only bills that
he felt had the "highest priority for California." The Governor
gave no policy reasons for his rejection of the bills.
5. Argument in Support
The League of California Cities argues in support:
AB 14 will provide local governments with an additional
resource to reduce public nuisances stemming from illicit
activities by granting them the authority to enact local
ordinances to impound vehicles associated with
prostitution offenses. This offers cities an important
tool to directly target local criminal activity and
promote safer communities.
6. Argument in Opposition
The California Attorneys for Criminal Justice argue in
opposition:
In 2005, the 9th Circuit Court of Appeals reaffirmed the
long-standing principle that a warrantless seizure (e.g.
impoundment) by police is presumed to be unconstitutional
and a violation of the Fourth Amendment. "The impoundment
of an automobile is a seizure within the meaning of the
Fourth Amendment. . . . A seizure ?without a warrant is per
se unreasonable under the Fourth Amendment." (Miranda v.
City of Cornelius (2005) 429 F. 3rd 858.) The Miranda court
concluded constitutional barriers are not overcome simply
because a local government adopts an ordinance such as
authorized under AB 14. ". . . [T]he decision to impound
pursuant to the authority of a city ordinance and state
statute does not, in and of itself, determine the
reasonableness of the seizure under the Fourth Amendment . .
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. The question . . . is not whether the search or seizure
was authorized by state law. The question is . . . whether
the search was reasonable under the Fourth Amendment. (Id.
at 864; citation omitted.)
The Miranda decision permits impoundment following an arrest
only if law enforcement determines that leaving the vehicle at
its point of rest creates a public safety hazard under the
community caretaking doctrine. "Whether an impoundment is
warranted . . . depends on the location of the vehicle and
police officer's duty to prevent it from creating a hazard to
other drivers or being a target for vandalism or theft."
(Ibid.) California appellate cases have also held that
pre-conviction vehicle impoundment is authorized only if
taking custody of the vehicle is necessary to secure its or
the public's safety. Since AB 14 authorizes unconstitutional
pre-conviction vehicle impoundments, CACJ must regretfully
oppose.
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