SB194 By Senator Waggoner RFD County and Municipal Government Rd 1 09-FEB-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 civil 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 the procedure for collection of outstanding parking tickets to include immobilization and impoundment.

A BILL TO BE ENTITLED AN ACT

To authorize the city council or other governing body of a municipality to adopt a municipal ordinance providing for parking enforcement and collection; to provide for parking enforcement civil violations; to authorize each municipality to adopt a municipal ordinance consistent with this act; to provide certain procedures to be followed by the municipality for parking enforcement; to provide that the owner of the vehicle unlawfully parked shall be presumptively liable for a civil violation and the payment of a civil fine, but providing procedures to contest liability; to 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; and to provide the procedure 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 an adjudication of civil liability for a parking violation, including municipal court costs associated with the infraction.

(2) CIVIL VIOLATION. There is hereby created a non-criminal category of law called a civil violation created and existing for the sole purpose of carrying out the terms of this act.

(3) 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. The 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.

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

(5) OWNER. An owner of a motor vehicle as shown on the motor vehicle registration records of the Alabama 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.

(6) PARKING VIOLATION. Any violation of an ordinance created pursuant to this act for an offense related to parking. A parking violation shall be a civil violation as defined in this act.

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

(b)(1) A civil fine assessed under this act may not exceed one hundred dollars ($100) with the exception of handicap parking violations which may not exceed two hundred fifty dollars ($250) and municipal court costs may be assessed only in contested cases in the same manner and in the same amounts prescribed for misdemeanor traffic offenses.

(2) An additional fee of up to twenty-five dollars ($25) for each parking ticket shall be authorized as a late fee if the fine is not paid on or before its due date.

(3) Court costs collected pursuant to this act shall be distributed in the same manner prescribed by law for the distribution of municipal court costs for misdemeanor traffic offenses.

(c) A parking ticket issued under this act for parking violations shall contain all of 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.

(d) 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.

(e) That failure to pay the civil penalty or to contest liability shall be an admission of liability.

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

Section 4. (a) Prior to imposing a civil penalty pursuant to this act, the municipality shall first mail a notice of violation by certified U.S. mail, return receipt requested, to the owner of the motor vehicle which is recorded by the automated photographic parking enforcement system that committed a parking violation. The notice shall be sent not later than the 30th day after the date the parking violation is recorded to the following:

(1) The owner's address as shown on the registration records of the Alabama Department of Revenue.

(2) If the vehicle is registered in another state or country, to the owner's address as shown on the motor vehicle registration records of the department or agency of the other state or country analogous to the Alabama Department of Revenue.

(b) A notice of violation issued under this act shall contain the following:

(1) Description of the parking violation alleged.

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

(3) A copy of recorded images of the vehicle involved in the violation.

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

(5) The date by which the civil penalty must be paid.

(6) A statement that the person named in the notice of violation may pay the civil penalty in lieu of appearing at an administrative adjudication hearing.

(7) Information that informs the person named in the notice of violation of the following:

a. The right to contest the imposition of the civil penalty in an administrative adjudication.

b. The manner and time in which to contest the imposition of the civil penalty.

c. That failure to pay the civil penalty or to contest liability is an admission of liability.

(8) A statement that a recorded image is evidence in a proceeding for the imposition of a civil penalty.

(9) A statement that failure to pay the civil penalty within the time allowed shall result in the imposition of a late penalty not exceeding twenty-five dollars ($25).

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

(c) A notice of violation under this act is presumed to have been received on the 10th day after the date the notice of violation is placed in the United States mail.

(d) The civil penalty imposed shall be paid within 30 days of the 10th day after the date the notice of violation is mailed.

(e) It shall be within the discretion of the trained technician to determine which of the recorded parking violations are prosecuted based upon the quality and legibility of the recorded image. In lieu of issuing a notice of violation, the municipality may mail a warning notice to the owner during the initial warning period.

Section 5. (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 issue orders imposing the civil fines and costs set out in this act. The presiding municipal judge of a municipality may order that parking offense disputes be administratively adjudicated by a magistrate pursuant to Rule 19(b), Alabama Rules of Judicial Administration.

(b) A person who receives a parking ticket may contest the imposition of the civil fine by appearing for a 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 and is a debt owed to the municipality to be collected as all other debts owed to the municipality and as provided for in this act.

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

(e) If an adjudicative 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 municipal court finds there is an indication of untrustworthiness, in which case the municipality shall be given a reasonable opportunity to lay an evidentiary foundation.

(g) All other matters of evidence and procedure not specifically addressed in this act shall be subject to the rules of evidence and the rules of procedure as they apply in the small claims courts of this state, except that on any appeal to circuit court the evidence and procedures shall be as for any civil case in the circuit court except as otherwise provided in this act and discovery shall be limited to interrogatories and request for production ordered by the circuit court as essential for the defense of the parking violation.

(h) A person who is found liable for the civil violation after an adjudicative 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 civil violation after an adjudicative hearing shall pay the civil fine and costs within 10 days of the hearing.

(i) 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, decreased, or remitted by the municipal court, and the liability may be satisfied only by payment.

(j) 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 or being operated by a person other than the owner of the vehicle without the effective consent of the owner.

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

(3) The person who received the parking ticket was not the owner of the motor vehicle at the time of the violation.

(4) That at the time of the violation the motor vehicle was a stolen vehicle or the license plate displayed on the motor vehicle was a stolen plate, the owner must submit proof acceptable to the hearing officer that the theft of the vehicle or license plate, prior to the time of the violation, had been timely reported to the appropriate law enforcement agency.

Section 6. (a) Following an adjudicative hearing, the municipal court judge or magistrate shall issue an order stating the following:

(1) Whether the person charged with the civil violation is liable for the violation and, if so:

(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 adjudicative hearing may appeal the finding to the circuit court of the county where the municipality is situated by filing a notice of appeal with the clerk of the municipal court. The notice of appeal must be filed not later than the 14th day after the date on which the municipal court judge 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 by trial de novo without a jury.

Section 7. The circuit court hearing an appeal shall use the procedures that apply to criminal convictions in municipal court with the following qualifications:

(1) The proceedings shall retain their civil nature on appeal with the circuit court applying the preponderance of the evidence standard.

(2) If the person is adjudicated by the circuit court to be responsible for payment of the civil fine, circuit court costs shall be owed by the person adjudicated responsible, with 100 percent of those court costs retained by the circuit court. Court costs in the circuit court shall be calculated as are court costs for criminal appeals from the municipal court, and in the event the circuit court finds the person appealing not to be responsible, no municipal court costs shall be owed to the municipality.

(3) Regardless of the civil nature of the proceedings, the circuit court, in its discretion and for its administrative convenience, may assign case numbers as for criminal appeals and place the appeals on criminal dockets in the same manner as criminal appeals from municipal court.

(4) The municipality shall be responsible for providing an attorney to represent the municipality and to prosecute the civil proceedings in the circuit court.

Section 8. 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.

Section 9. (a) A municipality is authorized to utilize vehicle immobilization, impoundment, or both, to facilitate the enforcement of parking ordinances and collection of parking fines which shall adhere to the following criteria:

(1) Issuance of the warning notice. When a registered owner of a vehicle or vehicles has three or more unpaid past due parking tickets, 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) Warning notice appeal. 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 within 10 days of the date of the postmark date of the notice.

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

(4) Procedure for immobilization. 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.

(5) Immediately after a vehicle is immobilized, the person immobilizing such vehicle shall affix at the rearmost portion of the window adjacent to the driver's seat of such 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 background 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).

(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 the payment of outstanding fines and fees to have the immobilization device removed 24 hours a day seven days a week.

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

Procedure for impoundment.

a. Relocating the vehicle by towing to a place and in a manner authorized by the municipality.

b. Post-impoundment administrative hearing. The registered owner has the right to request in writing a post-impoundment administrative hearing within 21 days of the impoundment to contest the validity of an 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 an administrative hearing for impoundment. The decision of the hearing officer is appealable to the applicable circuit court upon payment of the circuit court filing fee within 14 days of the decision of the hearing officer for a trial de novo without jury.

c. Procedure for release of the vehicle. In order to secure the release of a vehicle, the registered owner must do one of the following within 21 days of immobilization or impoundment:

1. Pay the total amount due including all outstanding parking tickets, all immobilization, impoundment, storage fees, or all of them.

2. A secured party lien holder may pay the total amount due on behalf of the registered owner and, upon 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, obtain the release of the vehicle to the secured party.

3. Release under any other terms as provided in the ordinance.

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

Section 10. (a) The penalty for violation of a civil violation shall be a civil fine, not to exceed fifty dollars ($50), the enforceability of which shall be accomplished through civil action. The prosecution of a civil violation created by this act shall carry reduced evidentiary requirements and burden of proof as set out in Section 4, and in no event shall an adjudication of liability for a civil violation be punishable by a criminal fine or imprisonment.

(b) Any person against whom an adjudication of liability for a civil violation is made pursuant to this act, or an ordinance passed pursuant hereto, and who actually pays the civil fine imposed thereby 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, that 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 11. 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 12. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Court, Circuit

Court, Municipal

Motor Vehicles

Law Enforcement

Municipalities

Civil Procedure