BILL ANALYSIS �
AB 2381
Page 1
Date of Hearing: April 23, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 2381 (Bonilla) - As Introduced: February 21, 2014
SUBJECT : Private parking facilities.
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.
EXISTING LAW :
1)Allows any city or county, by ordinance or resolution, to find
and declare that there are privately owned and maintained
offstreet 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 offstreet 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 offstreet parking facility involved.
4)Outlines the requirements for, and limitations on, the removal
of vehicles parked on private property, as specified (Vehicle
Code section 22658).
FISCAL EFFECT : None
COMMENTS :
1)Purpose of this bill . 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
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is sponsored by the Walnut Creek Downtown Association.
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. Parking ordinances
outline consumer protections and strict requirements of
property owners. Ordinances specify signage, penalty amount,
dispute resolution, and compliance requirements, and are
adopted only with a vote of the city council or county board
of supervisors. However, state law does not explicitly
prescribe whether or not private companies can enforce meter
limits in private parking lots, even when local jurisdictions
authorize a company's ability to do so. Clarity is needed in
state law to protect all parties."
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
monetary sanctions issued by private property owners?
The opinion concluded that:
a) 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.
b) Absent statutory authorization, private property owners
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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.
c) 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.
d) 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 noted that, "The Opinion is silent on 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
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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.
4)Committee amendments . The Committee may wish to consider the
following amendments to clarify the scope of the bill, ensure
due process procedures, and prevent private parking citations
from affecting a violator's driving record:
a) On page 2, in line 13, after "parking" insert "in that
facility"
b) Require operators of a privately owned and maintained
offstreet parking facility to include in any notice of
parking violation instructions on obtaining information on
the procedures to contest the notice of parking violation.
c) Prohibit information regarding parking violations from
being forwarded to the Department of Motor Vehicles (DMV)
for purposes of going on the driver's record or for
purposes of a DMV Hold.
5)Arguments in support . The Walnut Creek Downtown Association,
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 adopting ordinances that would benefit their
downtown business associations, local merchants and customers.
AB 2381 will provide clarity to the matter by addressing the
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Attorney General opinion and clearly stating that such
ordinances are valid."
6)Arguments in opposition . None on file.
REGISTERED SUPPORT / OPPOSITION :
Support
Walnut Creek Downtown Association [SPONSOR]
AvalonBay Communities, Inc.
California Business Properties Association
California Restaurant Association
California Retailers Association
City of Walnut Creek
International Council of Shopping Centers
League of California Cities
Mayor Timothy M. Flaherty, City of Pleasant Hill
National Federation of Independent Business
Regional Parking, Inc.
Opposition
None on file
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958