HB416 By Representative England RFD County and Municipal Government Rd 1 15-MAR-16

SYNOPSIS: This bill would authorize the city council or other governing body of a municipality to adopt a municipal ordinance providing for parking enforcement and collection.

This bill would provide for parking enforcement civil violations.

This bill would authorize each municipality to adopt a municipal ordinance consistent with this act.

This bill would provide certain procedures to be followed by the municipality for parking enforcement.

This bill would provide that the owner of the vehicle unlawfully parked shall be presumptively liable for a parking violation and the payment of a civil fine, but providing procedures to contest liability.

This bill would provide for jurisdiction in the municipal court of the municipality over the civil violations and allow appeals to the circuit court of the county where the municipality is situated for trial de novo without a jury.

This bill would provide a means for collection of outstanding parking tickets to include immobilization and impoundment.

A BILL TO BE ENTITLED AN ACT

Relating to municipalities; to authorize the city council or other governing body of a municipality to adopt a municipal ordinance providing for parking enforcement; to provide for civil violations and fines; to provide certain procedures to be followed by a municipality for parking enforcement; to provide that the owner of a vehicle unlawfully parked shall be presumptively liable, but providing procedures to contest liability; to provide for jurisdiction in the municipal court of a municipality for civil violations, allowing appeals to the circuit court of the county where the municipality is situated for trial de novo without a jury; and to provide a means for collection of outstanding parking tickets to include immobilization and impoundment.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Each municipality, by municipal ordinance, may adopt the procedures set out in this act.

Section 2. As used in this act, the following terms shall have the following meanings:

(1) CIVIL FINE. The monetary amount assessed by the municipality pursuant to this act for a determination of civil liability for a parking violation, including municipal court costs associated with the infraction.

(2) IMMOBILIZATION. The act of placing on a parked motor vehicle a lockable vehicle wheel clamp or boot or similar device that is designed to be placed on a parked vehicle to prevent the operation of the vehicle until the device is unlocked and removed. The term "boot" shall include the devices used for this purpose. Such devices shall be a high visibility color, such as yellow, orange, or red. No cables, chains, ropes, or other similar means of vehicle immobilization shall be allowed.

(3) IMPOUNDMENT. Removing a vehicle from a public street or right-of-way by towing to a place designated by the municipality.

(4) OWNER. The owner or owners, if jointly registered, of a motor vehicle as shown on the motor vehicle registration records of the Department of Revenue or the analogous department or agency of another state or country. The term shall not include a motor vehicle rental or leasing company when a motor vehicle registered by the company is rented or leased to another person under a rental or lease agreement with the company, in which event "owner" shall mean the person to whom the vehicle is rented or leased; nor shall the term include motor vehicles displaying dealer license plates, in which event "owner" shall mean the person to whom the vehicle is assigned for use; nor shall the term include the owner of any stolen motor vehicle, in which event "owner" shall mean the person who is guilty of stealing the motor vehicle.

(5) PARKING VIOLATION. Any violation of an ordinance created pursuant to this act for an offense related to parking.

Section 3. (a) Each municipality is empowered to enforce parking regulations by issuing notices of civil parking violations by affixing a parking ticket on the windshield of an unlawfully parked vehicle and by prosecuting civil violations for the parking violations which may occur within the municipality, as provided in this act.

(b) A civil fine assessed under this act may not exceed one hundred dollars ($100) with the exception of handicap parking violations which shall be a minimum of one hundred dollars ($100), but may not exceed the maximum amount authorized by law. Municipal court costs for parking offenses may be assessed only in contested cases in an amount not to exceed one hundred dollars ($100) which shall be retained by the municipality.

(c) A parking ticket issued under this act for parking violations shall contain the following information:

(1) Description of the parking violation alleged.

(2) The date, time, and location of the violation.

(3) The amount of the civil penalty to be imposed for the violation.

(4) The date by which the civil penalty must be paid and any applicable late fee.

(5) That the person named in the notice of violation may pay the civil penalty in lieu of appearing at an administrative adjudication hearing at a date, time, and place shown on the ticket.

(6) That failure to pay the civil penalty or to contest liability is an admission of liability.

(7) Any other information deemed necessary by the municipality.

Section 4. (a) The municipal court of the municipality is vested with the power and jurisdiction to hear and adjudicate the civil violations provided for in this act and to impose the civil fines and costs set out in this act. When a hearing is requested for a disputed parking ticket, the parking offense dispute shall be administratively adjudicated by a magistrate.

(b) A person who receives a parking ticket may contest the imposition of the civil fine by appearing for an administrative hearing on the date, time, and place on the ticket or for hearing as described in any mailed notice to the registered owner after the initial date as set on the parking ticket.

(c) Failure to pay a civil penalty or to contest liability in a timely manner is an admission of liability in the full amount of the civil fine assessed in the notice of violation, is a debt owed to the municipality to be collected as all other debts owed to the municipality, as provided for in this act, and is a waiver of an administrative hearing for a disputed ticket.

(d) The civil fine and costs shall not be assessed if, after a hearing, the magistrate of the municipality enters a finding of no liability.

(e) If an administrative hearing is requested, the municipality shall have the burden of proving the parking violation by a preponderance of the evidence.

(f) The notice of violation and evidence of ownership of a vehicle as shown by copies or summaries of vehicle registration or other ownership records shall be admissible into evidence without foundation unless the magistrate finds there is an indication of untrustworthiness, in which case the municipality shall be given a reasonable opportunity to lay an evidentiary foundation.

(g) A person who is found liable for the parking violation after an administrative hearing is liable for court costs and fees as set out herein in addition to the amount of the civil fine assessed for the violation. A person who is found liable for a parking violation after an administrative hearing shall pay the civil fine and costs within 14 days of the hearing.

(h) Whenever payment of a civil fine is owed to the municipality, the amount of the civil fine as set by ordinance may not be increased or decreased, and the liability may be satisfied only by payment.

(i) An owner is prima facie responsible for a parking violation; provided, however, that it shall be an affirmative defense to the imposition of civil liability under this act to be proven by a preponderance of the evidence that:

(1) The motor vehicle was stolen and timely reported to law enforcement or was being operated by a person other than an owner of the vehicle without the effective consent of an owner.

(2) The license plate described in the parking ticket was a stolen plate, timely reported to law enforcement, and being displayed on a motor vehicle other than the motor vehicle for which the plate had been issued.

(3) The person or persons shown as owner had transferred ownership of the vehicle to another person prior to the parking violation.

Section 5. (a) Following an administrative hearing, the magistrate shall issue a finding stating the following:

(1) Whether the person charged with the parking violation is liable for the violation.

(2) The amount of the civil fine assessed against the person, along with the fees and costs of court provided for herein.

(b) A person who is found liable after an administrative hearing may appeal the finding to the circuit court of the county where the city hall of the municipality is located by filing a notice of appeal with the clerk of the municipal court, filing a copy of the notice of appeal in the circuit court, and paying the circuit court civil filing fee. The notice of appeal must be filed not later than the 14th day after the date on which the magistrate entered the finding of civil liability. The filing of a notice of appeal shall stay the enforcement of the civil fine penalty. An appeal shall be determined by the circuit court trial de novo without a jury.

Section 6. The circuit court shall apply the preponderance of the evidence standard to a civil appeal under Section 5 (b). The evidence and procedures shall be as for any civil case in the circuit court except that there shall be no discovery permitted. The municipality shall be responsible for providing an attorney to represent the municipality and to prosecute the civil proceedings in the circuit court.

Section 7. The municipality may provide by ordinance that a late fee not exceeding twenty-five dollars ($25) shall attach to untimely paid civil fines that are authorized in this act. No person may be arrested or incarcerated for nonpayment of a civil fine or late fee. The late fee limit may be increased every five years by an amount equal to the percentage increase, if any, in the U.S. Department of Labor's Producer Price Index during that five-year period, rounded to the nearest dollar, with the base year being 2016.

Section 8. (a) A municipality is authorized to utilize vehicle immobilization, or impoundment, or both, to facilitate the enforcement of parking ordinances and collection of parking fines which shall adhere to the following criteria:

(1) When a registered owner of a vehicle or vehicles has three or more unpaid past due parking tickets, including parking tickets issued prior to the effective date of this act, the municipality shall cause a warning notice of impending immobilization, impoundment, or both, to be sent by first class mail to the registered owner listing the parking violations including the date of offense, the violation, the license tag number, and location of the offense.

(2) The registered owner may appeal the warning notice to the person, department, or agency designated by the municipality to obtain rescission of the warning notice by challenging the accuracy of the information in the notice 10 days of the date of the postmark date of the notice.

(3) A warning notice shall be canceled by the municipality when all past due parking tickets and other parking related fees are paid.

(4) Upon the expiration of 10 days from a warning notice and failure of the registered owner to appeal the warning notice or obtain a rescission of the warning notice, any vehicle registered to the notified owner may be immobilized when found parked legally or illegally on any public street or right-of-way in the municipality.

(5) Immediately after a vehicle is immobilized, the person immobilizing the vehicle shall affix at the rearmost portion of the window adjacent to the driver's seat of the vehicle a notice sticker or decal measuring no less than eight by four inches containing a warning that any attempt to move the vehicle may result in damage to the vehicle. The notice shall state the date and time the vehicle was immobilized; the municipality responsible for immobilizing the vehicle; the make, model, color, and license tag number of the immobilized vehicle; the reason for immobilization; and a contact number for requesting removal of the immobilization device; provided, however, that the sticker may be affixed in a location that is immediately and reasonably visible to the operator of a motor vehicle if there is no window adjacent to the driver's seat. Such sticker shall be a high visibility color, such as yellow, orange, or red and lettering shall be black.

(6) It shall be unlawful for any person who is not authorized by the municipality, including the employee or agent of any towing company, to remove or alter, any restraint from any vehicle after immobilization or to move any vehicle after immobilization.

(7) A municipality is authorized to charge an immobilization removal fee up to sixty-five dollars ($65). The immobilization removal fee limit may be increased every five years by an amount equal to the percentage increase, if any, in the U.S. Department of Labor's Producer Price Index during that five-year period, rounded to the nearest dollar, with the base year being 2016.

(8) The municipal ordinance shall provide to the vehicle owner or authorized user an immediate appeal of the vehicle immobilization during regular business hours and provide for payment of outstanding fines and fees to have the immobilization device removed 24 hours a day, seven days a week.

(9) A municipality shall not be liable for any damage caused by immobilization by a third party.

(b) Any vehicle which is not removed from city property within 24 hours of immobilization shall be deemed abandoned and ordered impounded.

(c) A municipality may impound a vehicle by relocating the vehicle by towing to a place and in a manner authorized by the municipality.

(d) If a vehicle is impounded pursuant to this section, the registered owner has the right to request in writing a post-impoundment administrative hearing within 21 days of an impoundment to contest the validity of the impoundment. The hearing officer and procedure shall be as designated in the ordinance and shall take place not later than three business days from receipt of the written request for administrative hearing for impoundment. The decision of the hearing officer is appealable to the applicable circuit court upon payment of the circuit court civil filing fee within 14 days of the decision of the hearing officer for a de novo trial without jury.

(e) A vehicle immobilized or impounded under this section may be released:

(1) By payment by the registered owner of the total amount due, including all outstanding parking tickets, all immobilization, impoundment, and storage fees within 21 days of the immobilization or impoundment, or both.

(2) By payment by a secured party lien holder after the total amount due on behalf of the registered owner within 21 days of the immobilization or impoundment, or both, and the execution of a hold-harmless agreement that releases the municipality and its officers, employees, and agents from all liability with respect to the vehicle.

(3) As otherwise provided in the ordinance.

(f) If the registered owner, secured party lien holder, or either, fails to secure release of the vehicle within 21 days of the date of impoundment the vehicle shall be deemed abandoned and may be sold at public auction by following the same procedure set out in Section 32-13-1 et seq., Code of Alabama 1975, for other abandoned vehicles.

Section 9. Any person against whom an adjudication of liability for a parking violation is made pursuant to this act, or an ordinance passed pursuant thereto, and who actually pays the civil fine imposed shall have a cause of action against any person who may be shown to have been operating the vehicle recorded at the time of the violation for the amount of the civil fine actually paid plus any consequential or compensatory damages and a reasonable attorney fee, without regard to the rules regarding joint and several liability, contribution, or indemnity; provided, however, that as a condition precedent to the bringing of a civil action, the person held responsible for payment of the civil fine must first make written demand on the other person for reimbursement of the civil fine, giving a minimum of 60 days to remit payment, and if reimbursement is fully made within the 60-day period then the cause of action shall be extinguished and no attorney fees or other damages shall attach to the reimbursement. Any cause of action brought pursuant to this section must be commenced within two years from the date of the payment of the civil fine for a parking violation.

Section 10. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 11. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Court, Circuit

Court, Municipal

Municipalities

Law Enforcement

Civil Procedure