BILL ANALYSIS �
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB 2381
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: Bonilla
VERSION: 4/28/14
Analysis by: Nathan Phillips FISCAL: NO
Hearing date: June 24, 2014
SUBJECT:
Private parking facilities
DESCRIPTION:
This bill authorizes cities or counties to allow owners or
operators of publicly available private parking lots to regulate
unauthorized parking.
ANALYSIS:
Existing law:
Allows cities or counties to find and declare that there are
private parking lots that are generally available for public
use, and requires that, when an ordinance or resolution making
such a finding is enacted, specified traffic laws apply,
including those related to speed and reckless driving.
Defines "citation" in the Vehicle Code as "a notice to appear,
notice of violation, or notice of parking violation."
Governs the procedures applicable to parking violations on
public parking lots and spaces. This includes provisions
related to the manner, process, and length of time in which
parking violations may be contested and adjudicated;
protection against "bounty hunter" behavior in issuing parking
violation notices; and information required to be included on
parking violation notices.
This bill :
Allows a city or county, in an ordinance or resolution
regarding private off-street parking lots, to authorize the
lot owner or operator to regulate unauthorized parking in that
facility.
Requires, in a city or county which has authorized an owner or
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operator to regulate unauthorized parking in its facility,
inclusion on a notice of parking violation instructions that
describe the manner in which to contest the notice of parking
violation.
Prohibits the lot owner or operator from filing with, or
transmitting to, the Department of Transportation a notice of
parking violation, as specified, for purposes of collection.
BACKGROUND:
A 2011 opinion of the Attorney General concluded that state law
does not authorize private property owners to issue parking
citations imposing monetary sanctions to the owners of vehicles
parked on their property. Key aspects of the Attorney General's
reasoning are that the terms "citation," "notice of parking
violation," and "peace officer" carry the weight of law; should
apply only to government-issued parking tickets; and do not
encompass non-governmental notices issued by private property
owners.
In contrast to the Attorney General's opinion, a 2013 California
Superior Court ruling found that an ordinance of the City of
Walnut Creek that allows private parking regulation is a valid
ordinance. The Superior Court argued that, while it recognized
that 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 parking is not such a public
function and may be a power granted by ordinance to private lot
owners.
The Superior Court ruling was restricted to consideration of the
validity of a local ordinance in Walnut Creek and, therefore
does not set a statewide precedent.
COMMENTS:
1.Purpose . According to the author, ambiguity in state law and
judicial opinion currently inhibits private parking lot owners
and operators from effectively addressing the problem of
unauthorized parking, and this bill will provide needed
clarification and explicit authorization for parking
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regulation on private, off-street lots.
2.Potential abuses of private enforcement . This bill addresses
the specific and restricted topic of parking regulation, but
it raises a broader question of the extent and limitation of
powers of private entities which are granted authority to
enforce laws. Potential abuses of law enforcement power by
private agencies include:
Unfair or arbitrary adjudication of contested violation
notices
Private entities masquerading as public law enforcement
Exorbitant fines
Promotion of bounty hunter activity in issuing violation
notices
That these potential abuses are a valid cause for concern is
evidenced by the fact that the Legislature previously enacted
laws to protect against bounty hunter activity and excessive
fines associated with public parking tickets.
1.An instructive precedent . The City of Walnut Creek's
ordinance governing regulation of parking in private parking
lots addresses in large part potential abuses of power listed
above:
A fair adjudication process: The Walnut Creek municipal
code provisions related to dispute resolution are borrowed
nearly word-for-word from the state Vehicle Code (Section
40215), substituting terms specific to Walnut Creek's local
government (e.g., "the Community Development Director") for
the corresponding general terminology in the Vehicle Code.
Clarity about non-governmental parking regulation: The
Walnut Creek ordinance replaces terminology in the Vehicle
Code that indicates a governmental legal sanction (as
emphasized in the Attorney General's opinion) with
terminology that is consistent with ordinary parking fees
or charges (e.g., "notice of parking charge" and "invoice"
in the Walnut Creek ordinance replaces the Vehicle Code's
"notice of parking violation"). Moreover, the municipal
code requires that the parking fee invoice state, in a
minimum specified font size, that the parking charge notice
is not issued by the City of Walnut Creek.
It is notable that, although the Walnut Creek ordinance
takes pains to avoid terminology indicating governmental
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penalties or sanctions as emphasized in the Attorney
General's opinion, this bill uses exactly such phrases:
"notice of parking violation," and "penalties." Bill
language that avoids terms that the Attorney General's
opinion held can only apply to governmental parking
enforcement may be more appropriate for private parking lot
regulation.
Protection against excessive fees: Walnut Creek's
ordinance offers more protection against excessive fees
than does the Vehicle Code, capping a mail-in parking fee
at an amount not to exceed the initial bail amount for an
equivalent municipal parking infraction.
Prohibition against "bounty hunter" practices and other
unauthorized business practices: The Walnut Creek
ordinance prohibits linking employee or contractor salary
to the number of notices of private parking charges they
issue. Notably, the Walnut Creek ordinance does not
address the possible conflict of interest in the
adjudication process for dispute resolution, as state law
addresses in adjudication of other types of penalties, by
requiring that fees are not returned to the issuing agency
(e.g., PUC Sections 99170 and 99580).
In addition to the above provisions, the Walnut Creek
ordinance specifies requirements for private parking lot
signage (including signage placement, sizes, colors, and
lettering; listing of hours of operation; specific parking
restrictions; and a statement of fees for unauthorized
parking); private parking lot operator registration and
private parking lot certification; the area or zone in which
the ordinance applies (e.g., central business district); and
penalties for violation of the provisions of the ordinance.
Based on the above considerations and examples from the Walnut
Creek ordinance and the Vehicle Code, the committee may wish
to recommend amendments that require cities or counties to
explicitly address in their ordinances provisions described
above that limit the potential for abuses of private parking
regulation.
1. An honor system . Ultimately, the private parking
regulation that this bill allows relies on an honor system
for payment of fees for unauthorized parking, because the
parking lot operator has little power to collect fees.
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This is exemplified by the Walnut Creek ordinance, wherein
the dispute resolution process ends by describing methods
of payment should the vehicle owner be ultimately
determined to owe the charge. In contrast, the Vehicle
Code continues with provisions for civil court actions and
vehicle registration sanctions in the event of non-payment
of public parking tickets. While small claims court could
be a mechanism by which private parking lot regulators may
collect unpaid fees, this may not only be impractical in
terms of time and financial costs, but may also be
impossible because private parking lot regulators are not
allowed to gain access to the personal identification of
the vehicle owner, including the vehicle owner's name and
mailing address. This does not appear to be recognized in
the Walnut Creek ordinance, because its dispute resolution
provisions, borrowed from the Vehicle Code, retain language
indicating that the identity and mailing address of the
registered vehicle owner may be known.
Assembly Votes:
Floor: 75-0
L Gov: 9-0
POSITIONS: (Communicated to the committee before noon on
Wednesday,
June 18, 2014.)
SUPPORT: Walnut Creek Downtown Business Association
(sponsor)
AvalonBay Communities, Inc.
California Business Properties Association
California Restaurant Association
California Retailers Association
California State Association of Counties
City of Concord
City of Pleasant Hill
City of Walnut Creek
Contra Costa County
International Council of Shopping Centers
League of California Cities
The National Federation of Independent Businesses
Regional Parking, Inc.
OPPOSED: None received.
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