BILL ANALYSIS
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 949
SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: oropeza
VERSION: 4/22/10
Analysis by: Jennifer Gress FISCAL: no
Hearing date: May 4, 2010
SUBJECT:
Municipal ordinance enforcement
DESCRIPTION:
This bill clarifies that the provisions of the California
Vehicle Code are applicable throughout the state and that local
authorities may not enact or enforce an ordinance related to
matters covered in the state Vehicle Code, including an
ordinance that assesses a penalty for a violation of the Vehicle
Code, unless expressly authorized to do so.
ANALYSIS:
The California Vehicle Code provides that its provisions are
applicable and uniform throughout the state. A local authority
may not enact or enforce any ordinance on matters covered by the
Vehicle Code unless it expressly authorizes a local authority to
do so.
Local authorities may adopt rules and regulations by ordinance
or resolution regarding the following matters:
Regulating or prohibiting processions or assemblages on the
highways.
Licensing and regulating the operation of vehicles for hire
(e.g., taxis), drivers of passenger vehicles for hire, tow
trucks, and tow truck drivers.
Regulating traffic by means of traffic officers, official
traffic control devices, persons authorized for that duty by
the local authority, and at the site of road construction or
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maintenance.
Operation of bicycles and of electric carts by physically
disabled persons or persons 50 years of age or older on the
public sidewalks.
Providing for the appointment of nonstudent school crossing
guards.
Regulating the methods of deposit of refuse in streets for
collection.
Regulating cruising, closing streets to vehicular traffic, and
diverting traffic under certain circumstances.
Regulating or authorizing the removal by peace officers of
vehicles unlawfully parked in a fire lane on private property.
Designating any highway as a through highway and requiring
that all vehicles observe official traffic control devices
before entering or crossing the highway.
Prohibiting certain vehicles from using particular highways.
Closing particular streets during regular school hours for the
purpose of conducting driver training.
Temporarily closing a portion of any street for celebrations,
parades, local special events, etc.
Prohibiting entry to or exit from any street by means of
islands, curbs, traffic barriers, or other roadway design
features to implement the circulation element of a general
plan.
The Vehicle Code also prescribes specific fines and assessments
for numerous violations of the code. For violations for which
the code does not prescribe a specific penalty, the Vehicle Code
provides a maximum fine in which case the Judicial Council may
establish the exact fine to be assessed.
This bill clarifies that the provisions of the Vehicle Code are
applicable throughout the state and that local authorities may
not enact or enforce an ordinance related to matters covered in
the Vehicle Code, including an ordinance that assesses a penalty
for a violation of the Vehicle Code, unless expressly authorized
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to do so by the Vehicle Code.
COMMENTS:
1.Purpose . According to the author, several local governments,
including the county of Alameda and the cities of Marysville,
Roseville, Riverbank, and Newman, have elected to make it
their official policy to ignore certain moving violations and
penalties in the state Vehicle Code and punish these offenses
under their own local ordinances.
Legislative Counsel has opined that such actions by local
governments are illegal. The Los Angeles Police Department,
the largest local law enforcement entity in the state, has
reached a similar conclusion, finding such actions by local
governments to be in violation of the California Constitution.
With this understanding, the author considers this bill to be
a technical cleanup measure to remove any misunderstanding
local governments may have regarding their authority under
state law.
I nconsistency in the enforcement of the state's V ehicle C ode
fosters confusion and distrust among drivers . In addition, it
inhibits accurate collection of statewide data on moving
violations , used to track unsafe drivers and calculate
insurance rates , and it puts the state at risk of losing
millions in federal transportation dollars.
2.The debate: state preemption . A hand full of local
governments around the state have established municipal
ordinances that include violations identical to ones contained
in the Vehicle Code (e.g., a person shall obey traffic signs
and signals) and that assess penalties for the violations. If
a person is cited for a violation under a municipal ordinance,
the penalty assessed is the penalty contained in the
ordinance, not the state Vehicle Code. The local government
receives the revenue from the penalty and it does not
communicate the violation to the Department of Motor Vehicles
(DMV).
At issue is whether the state Vehicle Code preempts local
ordinances with regard to regulating traffic. Section 7 of
Article XI of the California Constitution provides that a
local authority "may make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations
not in conflict with general laws." Opinions issued formally
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by the Office of the Attorney General (1990) and informally
this year by the Los Angeles Police Department cite legal
cases in which "conflict" was found to occur when the state
has enacted a legislative scheme intended for uniform
application throughout the state and has indicated its
intention to preempt local regulation in the area. In its
1990 opinion, the Office of the Attorney General concluded,
"The Vehicle Code is such an enactment and in fact contains
its own preemption rule, found in its section 21."
The City of Roseville argues that by allowing local
authorities to adopt rules and regulations regarding
"regulating traffic by means of official traffic control
devices," the state Vehicle Code does expressly authorize
local authorities to establish and enforce municipal
ordinances regarding such actions as obeying signs or signals.
Allowing local authorities to regulate traffic by means of
official traffic control devices, however, has generally been
interpreted to mean that local governments may determine where
to place which traffic signs and signals. Furthermore, a
number of legal opinions rendered over the years reinforce the
state's preemption of the field of traffic control,
particularly in cases where penalties for violations are
established in state statute.
In response to local governments enforcing local ordinances
related to matters covered by the state Vehicle Code, the
author requested the Legislative Counsel to opine on the
following question: Does the Vehicle Code preempt local
authorities from enacting and enforcing ordinances to assess a
fine for nonparking-related violations (i.e., moving
violations) if a fine for the violation is specified in the
Vehicle Code?
In its opinion, Legislative Counsel asserted that the Vehicle
Code does preempt the authority of a local authority to enact
and enforce ordinances assessing penalties for moving
violations because it provides for a comprehensive scheme of
penalties for moving violations, including the disposition of
fine revenue.
Statutory and case law show that local ordinances that assess
penalties for moving violations contained in the Vehicle Code
are preempted by the Vehicle Code and thus invalid. If a
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local authority would like to cite violators using municipal
ordinances, then legislation would be needed to explicitly
authorize local authorities to enact and enforce laws that
establish penalties for specified moving violations.
3.Fine revenue . The fines for violations cited under municipal
ordinances vary by jurisdiction, but of those that committee
staff is aware of, the fines tend to range from $100 to $150
for the first offense with increasingly higher fines for
subsequent offenses. For failing to obey traffic control
devices, the City of Roseville has adopted a fine of $100 for
a first offense, $200 for a second offense, and $500 for
subsequent offenses. Local fines are not subject to the
state-mandated penalty assessments, surcharges, or other fees
that apply to citations issued under the Vehicle Code. One
hundred percent of revenues from fines collected under
municipal ordinances stay with the jurisdiction in which the
violation occurred.
The fines for violations cited under the Vehicle Code, by
contrast, are much higher in total once penalty assessments,
surcharges, and other fees are added. According to the 2010
Uniform Bail and Penalty Schedule, base fine in the amount of
$35 has a total bail of $211 and a base fine of $100 has a
total bail of $445. Fine revenues, including penalty
assessments, are distributed according to complicated formulas
established in statute, but some portion is distributed to the
local jurisdiction where the violation occurred. The exact
percentage depends on the amount of the base fine as some of
the penalty assessments are calculated as a percentage of the
base fine. For base fines of $35, the local government
receives approximately 34 percent of the total bail amount,
which for total bail of $211 is $71. For base fines of $100,
the local government receives about 43 percent of the total
bail, which equals $191.
4.Importance of uniformity . There are several reasons why the
state may wish to discourage local governments from
establishing their own procedures and penalties for violations
covered by the Vehicle Code.
Safety. When a person is convicted for a moving violation
cited under the Vehicle Code, the violation is reported to the
DMV who, depending on the violation, may attach negligent
operator points to one's driver's license. After receiving a
specified number of points within a statutorily defined
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timeframe, a driver's license may be suspended or revoked by
DMV. The purpose of applying violator points is to track
incidents of unsafe driving and, if necessary, remove unsafe
drivers from the road. This system is intended to deter
unsafe driving and protect members of the public from unsafe
drivers. Points are also used by the insurance industry to
determine the risk an insurance company may face by insuring a
driver. The more points that accrue on one's license, the
higher the insurance premium he or she will likely be charged.
When a person is cited under a municipal ordinance rather than
the state Vehicle Code, DMV is not contacted and no points are
attached to the driver's license, precluding DMV and insurance
companies from assessing whether or not a driver has a record
of safe driving, thereby allowing unsafe drivers to remain
undetected.
Equity. Ensuring that all persons who commit the same
violation are treated equally is another reason for promoting
uniformity and discouraging the use of local ordinances to
cite for violations covered by the Vehicle Code. Is it fair
for a person in one jurisdiction to receive a penalty that is
different from the penalty assessed on a person in another
jurisdiction for the exact same violation?
Potential loss of federal funds. Federal law requires each
state to establish a highway safety plan that, among many
other things, provides for "sustained enforcement of statutes
addressing impaired driving, occupant protection, and driving
in excess of posted speed limits." Failure to implement a
program approved by the United States Department of
Transportation (U.S. DOT) could result in the withholding of
up to 50 percent of federal safety funds. By allowing local
authorities to enforce moving violations using local
ordinances, some are concerned that U.S. DOT could find that
the state was not providing for sustained enforcement and thus
withhold federal transportation funds.
5.Officer discretion . Opponents to this measure assert that it
will interfere with officer discretion to ensure "an
appropriate response to local needs." Violations enforced
through municipal ordinances (e.g., obedience to traffic signs
and signals) are no different than those provided for in the
Vehicle Code; what has differed is the penalty. The committee
may wish to question why officer discretion is necessary for
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determining which penalties may be appropriate for an observed
violation, a role traditionally reserved for the court, and
whether such discretion could lead to discrimination or abuse
if an officer chooses to cite some persons under a municipal
ordinance and others under the state Vehicle Code for the same
violation.
6.Suggested amendments . The intent of the bill is to clarify
two things with regard to the state preemption of traffic
regulation: 1) a local authority may not enact or enforce an
ordinance that establishes a violation that is already covered
by the Vehicle Code and 2) a local authority may not enact or
enforce an ordinance that establishes a fine or penalty that
is already established in the Vehicle Code. Language
contained in the bill does not achieve these aims as clearly
as might be desired.
First, the bill adds to the Vehicle Code the following
paragraph: "A local authority shall not enact or enforce an
ordinance that assesses a penalty for a violation of this code
or an ordinance adopted pursuant to this code ?" This language
may be somewhat confusing as it appears to prohibit a local
authority from enacting and enforcing "an ordinance adopted
pursuant to this code," in other words, an ordinance that was
adopted lawfully, in accordance with state law. In addition,
the language does not address any assessments or fees that a
local authority may impose rather than a fine per se. To
clarify the intent, the author or committee may wish to amend
the bill by deleting subdivision (b) and amending Section 21
as follows:
Except as otherwise expressly provided, the provisions of
this code are applicable and uniform throughout the State
state and in all counties and municipalities therein, and
no a local authority shall not enact or enforce any
ordinance or resolution on the matters covered by this
code, including ordinances or resolutions that establish
regulations or procedures for, or assess a fine, penalty,
assessment, or fee for a violation of, matters covered by
this code, unless expressly authorized herein by this code.
Second, the bill specifies that "This section does not
authorize a local authority to enact or enforce an ordinance
assessing a penalty for a violation where a penalty for the
violation is expressly provided for in this code." This
language pertains only to the establishment of penalties by
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local ordinance when penalties exist in the Vehicle Code and
does not address the issue of establishing a violation by
local ordinance for conduct that is already covered by the
Vehicle Code. To remedy these issues, the author or committee
may wish to consider amending this provision to read:
This section does not authorize a local authority to enact
or enforce an ordinance or resolution that establishes a
violation where a violation for the same or similar conduct
is provided for in this code, nor does it authorize a local
authority to enact or enforce an ordinance or resolution
that assesses a fine, penalty, assessment, or fee for a
violation where a fine, penalty, assessment, or fee for a
violation involving the same or similar conduct is provided
for in this code.
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
April 28, 2010)
SUPPORT: Automobile Club of Southern California
California State Automobile Association
OPPOSED: Association for Los Angeles Deputy Sheriffs
California Fraternal Order of Police
California State Association of Counties
California State Sheriffs' Association
County Professional Peace Officers Association
League of California Cities
Long Beach Police Officer's Association
Riverside Sheriffs' Association
Urban Counties Caucus