California Tow Truck Association

Legal Report

November 2001

Prepared for: California Tow Truck Association Board of Directors

Prepared by: Brooks Ellison, CTTA Legal and Legislative Counsel

________________________________________________________________________

Dear Board Members:

I have provided below a summary of CTTA’s lien sale agent litigation: CTTA V. STATE OF CALIFORNIA, DEPARTMENT OF MOTOR VEHICLES, which is currently before the Third District Court of Appeals in Sacramento, and have provided an update on the ongoing “federal preemption of local and state towing regulations” issue.

Lien Sale Agent Litigation

Background: In the Fall of 1998, the DMV announced that it would no longer permit lien sales agents to access and possess confidential vehicle owner information. In response to the DMV’s change of policy, CTTA filed its petition for writ of mandate in order to protect its membership of over 650 independent tow operators and lien sales agents.

The DMV changed its policy after conducting a self described “periodic review” of its statutory compliance. It concedes that it has no evidence of any wrongful distribution of vehicle owner information by lienholders or lien sales agents. The DMV maintains that lien sales agents are prohibited from accessing vehicle owner information pursuant to Vehicle Code section 1808.21, subdivision (a), stating that residence address information in any DMV record is confidential and “. . . shall not be disclosed to any person, except a court, law enforcement agency, or other government agency, or as authorized in Section 1808.22 or 1808.23.” This law was enacted in 1989-1990, i.e., a decade after the lien sale laws went into effect.

On March 25, 1999, The California tow Truck Association filed a petition for writ of mandate in the Sacramento Superior Court to prevent the DMV from denying lien sale agents access to DMV address information. The hearing on CTTA’s petition for writ of mandate was delayed by stipulation of the parties for almost two-years. During this time, the DMV and CTTA jointly pursued legislation that would clarify the right of lienholders to utilize agents for the purpose of giving notice of lien sales. Governor Davis vetoed both attempts (AB 1078 and SB 969) at clarifying the law through the legislative process.

On December 8, 2000, the matter was heard before Superior Court Judge Talmadge Jones, who ruled, on December 27, 2000, in favor of CTTA.

On February 28, 2001, The DMV appealed Judge Jones’ ruling to the Third District Court of Appeals in Sacramento.

Procedural Update

The DMV filed its notice of appeal on 2/28/01.  The DMV's opening brief (i.e.,"appellant's opening brief" or AOB) was filed 7/2/01.  Our brief on behalf of CTTA (i.e.,"respondent's brief") was filed on 9/18/01.  The rules permit the appellant to file a reply brief after respondent's brief is filed.  DMV filed its reply brief on 10/9/01.  The rules do not permit us to file a brief responding to the DMV's reply brief.  However, sometimes the court of appeal will send out a letter requesting that the parties brief an issue they are looking into.  Oral argument is also an opportunity to address the matters raised in DMV's reply brief.

At this stage, the case is what is called, "fully briefed."  All that is left is oral argument and the subsequent issuance of a written decision by the court.  The Court of Appeals Clerk estimated that in civil appeals usually one year elapses from the filing of the notice of appeal to the mailing of a notice of oral argument.  Thus, since the notice of

appeal was filed on 2/28/01, we will probably receive a notice from the court concerning

the setting of oral argument in February or March of 2002.  After receiving notice of the

oral argument, the actual argument occurs usually within 60 days thereafter.  At the

conclusion of the oral argument, we should receive a written opinion within 60 to 120

days (my estimate, not the court clerk's).  Thus, the appeal process (excepting a writ of

review and proceedings in the California Supreme Court, see below), should be

complete by July-September 2002. 

If the court of appeal affirms the trial court's decision, the DMV may file a petition for writ of review in the California Supreme Court.  This petition is filed approximately 30 days after the court of appeal files its decision.  If the appellate court reverses the trial judge, we may choose to file a petition for writ of review.  Review by the California Supreme Court is discretionary--i.e., they don't have to hear our case and may simply decline to grant review in which case the court of appeals decision becomes

final.  Because no federal issues are raised (or constitutional issues), there is no potential

for redress in the United States Supreme Court.

Summary of the Arguments on Appeal

The giving of notice to the owner of an impounded vehicle is critical as it affords such owner an opportunity to redeem the impounded vehicle. Three separate statutes govern the notification of vehicle owners by tow operators: Civil Code section 3071 applies to vehicles valued in excess of $4,000; Civil Code section 3072 applies to vehicles valued at $4,000 or less; and Vehicle Code section 22851.8 applies to vehicles valued at $300 or less.

Civil Code sections 3071, 3072 and Vehicle Code section 22851.8 require the lienholder, as well as the lienholder’s agent, to have access to vehicle owner information maintained by the DMV in order to give notice of lien sales. (Civ. Code section 3072, subd. (a) [“. . . the lienholder shall apply to the department for the names and addresses of the registered and legal owners of record.”]; Civ. Code section 2305 [“Every act which, according to this Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly appears”]; Civ. Code section 3071, subd. (f)(2); Veh. Code section 22851.8, subd. (a) [“The lienholder shall, within 15 working days following the date of possession of the vehicle, make a request to the Department of Motor Vehicles for the names and addresses of all persons having an interest in the vehicle.”]; McCollum v. Friendly Hills Travel Center (1985) 172 Cal.App.3d 83, 91 [recognizing common law principle that agent may act on behalf of principal] .)

Appellant conceded, in its opening brief, that these three statutes require lienholders to mail notices to owners of impounded vehicles. However, it argues that only the actual lienholders themselves, not their authorized agents, may access the vehicle owner information needed to give statutory notice.

In its written ruling on petition for writ of mandate, the trial court first noted that Vehicle Code section 1808.21, subdivision (a), sets forth the basic rule that residence address information maintained by the DMV is confidential and “. . . shall not be disclosed to any person, except a court, law enforcement agency, or other government agency, or as authorized in Section 1808.22 or 1808.23.” The court was correct in noting that sections 1808.22 and 1808.23 set forth several specific authorizations for various types of entities and, in some cases, their agents, and that these sections do not contain a specific authorization for lienholders or their agents.

The trial court then recognized that a separate group of statutes (i.e., Civil Code sections 3071, 3072 and Vehicle Code section 22851.8) authorizes lienholders to request and receive the addresses of persons having an interest in a particular vehicle for the purpose of giving notice of lien sales. The court stated, “The existence of these separate statutes clearly authorizing release of address information to lienholders indicates that the specific authorizations listed above [i.e., Vehicle Code sections 1808.22 and 1808.23] were not intended to preclude other parties from requesting and receiving such information if separately authorized to do so by statute.” The trial court concluded that “. . . the pre-existing statutory authorization in favor of lienholders was not repealed or otherwise limited by the later enactment of the general confidentiality statutes and specific exemptions therefrom.” As noted supra, the DMV has conceded that Civil Code sections 3071, 3072 and Vehicle Code section 22851.8 continue, this day, to permit lienholders access to vehicle owner information, and agrees that these lien sale laws were not repealed by implication after the enactment of Vehicle Code sections 1808.21, 1808.22 and 1808.23.

The court found that Civil Code section 2305 authorizes agents of lienholders to access vehicle owner information for the purpose of giving notice of lien sales. Section 2305 provides that “Every act which, according to this Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly applies.” The court correctly noted that the lien sale laws, as well as Vehicle Code sections 1808.21, 1808.22 and 1808.23, do not clearly express a contrary intention to the general rule that an agent may act on behalf of a lienholder. The court stated, “. . . some of the later statutes [Vehicle Code section 1808.23(a) and 1808.23(b)] specifically permit agents to act on behalf of their principals” The court then concluded that “Vehicle Code sections 1808.21, 1808.22 and 1808.23 do not forbid a lien sales agent from acting on behalf of a lienholder for the purpose of complying with Civil Code sections 3071 and 3072 and Vehicle Code section 22851.8. [The DMV’s] contrary interpretation of the statutes is clearly erroneous.” (Ibid.)

Appellant asserts that the trial court incorrectly found that Vehicle Code sections 1808.21, 1808.22 and 1808.23, contained an “implied exception” for lien sales agents. This is a misstatement of Judge Jones’ ruling. Judge Jones did not find that Vehicle Code sections 1808.21, 1808.22 and 1808.23 contained an implied exception for lien sales agents. In fact, Judge Jones did not look to these Vehicle Code sections as the basis for permitting lien sale agents to access vehicle owner information. Instead, Judge Jones reasoned that these Vehicle Code sections, enacted approximately 10 years after the lien sale statutes, did not expressly nor impliedly repeal the earlier enacted lien sale statutes.

The presumption against implied repeal is well established in our body of decisional law. (Hays v. Wood (1979) 25 Cal.3d 772, 784 [“. . . The courts assume that in enacting a statute the Legislature was aware of existing, related laws and intended to maintain a consistent body of statutes. . . [citations omitted] Thus there is a presumption against repeals by implication . . . .”]; Sutherland Stat Const section 23.10 (5^th Ed).) Judge Jones’ reliance on this established doctrine was sound. (See 74 Ops. Cal. Atty. Gen. 201, 204-205 (1991) [Restrictions upon access in Vehicle Code sections 1808.21, et seq., did not repeal earlier enacted lien sale laws granting lienholders right to access confidential vehicle owner information].) Applying the presumption against implied repeal, Judge Jones found that the earlier enacted lien sale laws permit lienholders, as well as their agents, to access to confidential vehicle owner information for the purpose of giving notice of lien sales.

Appellant has thus attempted to misconstrue and reshape the trial Court’s ruling. The only way an implied exception to Vehicle Code section 1808.21, 1808.22 and 1808.23 could exist is if such provisions governed lien holders. The court did not make such a finding, instead concluding that the earlier enacted lien sale laws were not repealed by the subsequently enacted Vehicle Code sections. Thus, inherent in appellant’s claim that the trial court found an “implied exception” to Vehicle Code section 1808.21, 1808.22 and 1808.23 is the premise that such laws govern lienholders. This premise contradicts appellant’s claim that “The [DMV] agrees with the trial court that lienholders are entitled to residence addresses pursuant to the presumption against repeals by implication.

The crux of appellant’s argument is that the lien sale statutes only make reference to lienholders and not agents of lienholders. While appellant acknowledges that Civil Code 2305 permits the use of agents, it maintains that a “contrary intention” appears[1] because Vehicle Code sections 1808.22 and 1808.23 expressly reference agents of vehicle dealers and manufacturers, and make no reference to agents of lienholders. (Veh. Code section 1808.23, subd. (a) and (b).) Such argument is disingenuous. Appellant has concealed the fact that Vehicle Code sections 1808.22 and 1808.23 also make no reference to lienholders. It is illogical to conclude that Vehicle Code sections 1808.22 and 1808.23 clearly express an intent to preclude agency principles for lienholders conducting lien sales when lienholders themselves are not even addressed in the law. Also, since appellant has conceded that Vehicle Code sections 1808.21, 1808.22 and 1808.23 do not govern lienholders, it is misleading to direct the court to these laws as the possible source of an intention contrary to agency.

By advancing the argument that Vehicle Code sections 1808.22 and 1808.23 express an intention contrary to agency, appellant has again contradicted itself: after expressly conceding that Vehicle Code sections 1808.21, 1808.22 and 1808.23 did not repeal the earlier enacted lien sale laws, it then asserts an argument that premised on the claim that these laws repealed the lien sale laws. Appellant should be held to its concession. If Vehicle Code sections 1808.21, 1808.22 and 1808.23 did not repeal the earlier enacted lien sale laws, then the court need only look to the lien sale laws to determine whether a contrary intention clearly appears. The lien sale laws do not evince such an intention contrary to agency. Such an analysis is consistent with the plain language of Civil Code section 2305 directing that the “contrary intention” must appear in the section authorizing the principle to act.

Appellant’s brief does not address the problem of how any lienholder, other than an individual person, can obtain information needed to give notice of lien sales without acting through its agents. A lienholder may be a business organization such as a partnership, limited liability company or corporation. There is no restriction in law as to who can be a lienholder. The only way a company can act is through its agents. Therefore, without the right to act through agents, the only lienholders who could obtain the information necessary to mail lien sale notices would be individual, human, lienholders. Further complicating matters, under the DMV’s proposed policy, such persons would have to access vehicle owner information and mail lien sale notices without the assistance of employees, who are of course agents.

The trial court correctly reasoned that Civil Code section 2305 permits authorized agents of the lienholder to access vehicle owner information for the purpose of giving notice of lien sales. Civil Code section 2305 permits an agent to act for a principle pursuant to law unless a contrary intention appears in the law. Judge Jones correctly noted that Civil Code section 2305 was enacted in 1872, well before Vehicle Code sections 1808.21, 1808.22 and 1808.23. Further, Judge Jones reasoned that there was no “contrary intention” (i.e., an intent to preclude agency) clearly appearing in the lien sale statutes, nor in Vehicle Code sections 1808.21, 1808.22 or 1808.23. Judge Jones noted that Vehicle Code section 1808.23, subdivisions (a) and (b), permit vehicle dealers and manufacturers, as well as their agents, access to vehicle owner information. Thus, Vehicle Code section 1808.23 does not even indicate an intention to preclude agency.

Although Judge Jones noted that Vehicle Code sections 1808.21, 1808.22 and 1808.23 contain nothing that would negate application of agency principles, respondent submits that it was only necessary for the trial court to review the earlier enacted lien sale laws, and to discern whether these laws express a clear intent to preclude application of agency principles. There is, in the lien sale laws, no expression of any intent that lienholders cannot act through agents. Accordingly, Civil Code 2305 applies, granting agents of the lienholder access to vehicle owner information for the purpose of giving notice of lien sales.

The common law rule that an agent may act on behalf of a principal also permits agents of lienholders to access vehicle owner information in order to give notice of lien sales. (McCollum v. Friendly Hills Travel Center (1985) 172 Cal.App.3d 83, 91; Store of Happiness v. Carmona & Allen (1957) 152 Cal.App.2d 266, 269) Our statutes are presumed not to alter the common law. (Goodman v. Zimmerman (1994) 25 Cal.App.4^th 1667, 1676 [“unless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules.”]; California Association of Health Facilities v. Department of Health Services (1997) 16 Cal.4^th 284, 297; People v. Zikorus (1983) 150 Cal.App.3d 324, 330.) Thus, Civil Code 3071, 3072 and Vehicle Code section 22851.8 should all be interpreted so as not to alter the common law permitting authorized agents to act on behalf of their principals.

Judge Jones was correct in reasoning that Vehicle Code sections 1808.21, 1808.22 and 1808.23 did not impliedly repeal the lien sale laws, and that the lien sale laws permit authorized agents of the lienholder to access vehicle owner information in order to give notice of lien sales. This court should affirm Judge Jones’ decision.

Judge Jones correctly noted that the DMV permitted lien sales agents to request address information on behalf of lienholders for many years, that the use of lien sales agents by lienholders has become a settled business practice, and that lienholders have structured their business operations in reliance on their ability to use lien sales agents. The Judge’s findings are based on the declaration of Richard Chappell, Executive Director of the California Tow Truck Association. The CTTA filed its writ petition in order to protect its members from the devastation that would result were the towing industry denied the right to utilize lien sales agents.

The DMV has all along claimed that the change of its policy was out of concern for the confidentiality of vehicle owner information. However, it was unable to demonstrate any instances where agents of lienholders mishandled this confidential information. The DMV made no reference to any misuse of confidential information in any documents submitted to the trial court, and at the writ hearing DMV counsel was unable to articulate any instance of misuse by lien sales agents.

Judge Jones correctly found that lien sales agents are subject to the same confidentiality provisions as lienholders. Pursuant to Vehicle Code section 1808.47, confidential information released to an agent of a person authorized to obtain information is conditioned upon taking all steps necessary to ensure the agent maintains confidentiality and prevents release to a third party. Similarly intended to protect confidentiality, Vehicle Code sections 1808.45 and 1808.46 impose civil fines and criminal penalties for misuse of confidential information. These statutes would apply to agents of lienholders, and act to ensure that confidential information is not misused.

Finally, Judge Jones was correct in concluding that the use of lien sale agents would promote the goal of protecting confidentiality of address information. Under current practices, approximately 30-lien sales agent companies process 90 percent of the lien sale notices for 3,500 towers in the State of California. These towing companies have 30,000 employees. If the lien sales agents are prohibited from doing their work, the lienholders themselves would have to handle confidential address information. As Judge Jones correctly noted “This would increase the number of separate companies dealing with such information to approximately 3,500 (with approximately 30,000 employees).” Thus, the DMV’s policy change would dramatically expand the universe of persons who have access to confidential vehicle owner information, thereby undermining its goal of limiting access to confidential vehicle owner information.

For approximately 20 years the DMV permitted lien sales agents, acting on behalf of lienholders, to access vehicle owner information in order to give notice of lien sales. Lien sales agents are critical to the process of giving notice of lien sales to persons whose vehicles are impounded. These lien sales agents are strictly regulated by the Department, and provide a reliable and trustworthy service.

Based on the foregoing, it is clear that the DMV’s decision to deny lien sales agents access to vehicle owner information was unlawful and clearly erroneous.

“Federal Preemption” Update

Background: Federal Preemption as it relates to the motor carrier industry deals with the ability of a state or local government to enact laws or regulations affecting motor carriers after federal legislation was passed by Congress “deregulating” the trucking industry in 1994/95. Any law that affects the “…price, rout or service of a motor carrier (including tow trucks)” is preempted or invalidated by the federal legislation unless one of the exceptions applies. The two main exceptions are the “municipal-proprietor exemption,” which involve actions taken to serve the government’s own needs ( e.g. the efficient procurement of goods and services) rather than society as a whole, and the “safety exception,” which allows a state to enact laws and regulations affecting the safety of motor vehicles. There has been a split of authority as to whether a state may delegate its “safety” authority to a local entity. The Ninth Circuit (California), Sixth Circuit and Eleventh Circuit have held that states cannot delegate this authority, while the Second Circuit (New York) has held that it can be delegated. The Fifth Circuit (Stucky v. San Antonio) has recently ruled that his authority cannot be delegated.

In the Stucky case, the City of San Antonio had a one-vendor system for both consent and non-consent public property tows involving accidents or abandoned vehicles. Under the City’s system all accident tows were declared to be non-consent, and thus part of the one-vendor contract. This differed from the state’s statutory definition which holds that a consent tow is a tow made with consent and a non-consent tow is a tow made without consent. The city argued, in part, that the system was designed to address the safety concerns of tow trucks monitoring police radios and racing to the accident scene. The city argued that all towing was “safety related” and that non-consent towing was the City’s business, and therefore was not preempted by the Federal legislation based on both the municipal-proprietor exception and the safety exception, and therefore could be generally regulated. The Fifth Circuit disagreed with the City, finding that both exceptions to federal preemption did not apply. This is the first circuit court to discuss the scope of the safety exception, expressing concern that a city “…could designate all tows in the City as implicating safety concerns and thus regulate the entire industry,” and the first to limit a local government’s ability to define what constitutes consent and non-consent towing. It is also interesting that the Fifth Circuit seems to define non-consent tows as “…tows where the owner of the vehicle is unwilling or unable to specify a towing company.” Note: Under the majority view, the only aspect of towing that local governments can regulate is the price of non-consensual towing.

Preemption—Recent California Case

U.S. District Court Judge Frank Damrell Jr. ruled Oct. 26 in Sacramento

that state statutes granting local governments the right to regulate commercial motor
traffic violate federal law.

A local ordinance prevented certain heavy truck traffic through a residential neighborhood to the Port of Stockton.

Port officials have objected to any move to bar trucks from Washington
Street, a two-lane road that bisects the low-income Boggs Tract neighborhood but is also a primary access to the port and related industrial areas. The port generates about 1,000 truck trips per day, officials said.

This case supports the Ninth Circuit’s ruling preempting the authority to enact local regulation restricting truck traffic, even on a safety basis.

California Tow Truck Association

Legislative Report

November 2001

Prepared for: California Tow Truck Association Board of Directors

Prepared by: Brooks Ellison CTTA Legal and Legislative Counsel

Ken Kay CTTA Legislative/TSA Committee Co-Chair

Kevin Koch CTTA Legislative/TSA Committee Co-Chair

Committee Members: Frank Andrews, Rick Bays, Tom Brough, Carvel Gay, Kathy Gean, Evelyn Harden, Jeff Hunter, Dave McDanell, Coy Moody, Michele Nelson, Earl Peterson, and Sherry White.

________________________________________________________________________

Dear Board Members:

This Legislative Report is prepared in Three parts: The first part consists of a brief overview and update on the Legislative/TSA Committee by the Co-Chairs of the Committee, the second part consists of a general update on the legislature and the budget, and the third part contains a list of the bills lobbied and monitored by the Committee.

LEGISLATIVE/TSA COMMITTEE CO-CHAIR OVERVIEW

This year we have had the opportunity to significantly advance our relationship with both the CHP and the State Legislature to the highest level ever. Our Association has become a more active participant in the development and lobbying of legislation that effects our industry. However, with this extra participation comes a greater responsibility to insure that the interests of our entire Association are represented. Because of this greater responsibility we feel that some major changes in the Legislative Committee are appropriate. We have some ideas and look forward to discussing these ideas with the Board and the Legislation/TSA Committee.

LEGISLATIVE OVERVIEW

The 2001 legislative year began the first week in January and ended for the Legislature on September 14^th, the last day for bill to be passed, and ended for the Governor October 15^th, the last day for the Governor to sign or veto bills. During this period of time the 120 members of the California Legislature introduced more than 3000 bills. On average each bill was amended about five times—producing more than 15,000 pieces of legislation that went through the Legislature. It is the responsibility of this Committee and the Wilson Group to monitor this flood of legislation.

The Legislature is scheduled to reconvene from its Interim Recess on January 7, 2002. On January 10, 2002, the Governor is required to present his budget to the Legislature for its consideration. Given the State’s projected 12 to 14 billion-dollar deficit, caused in part by the State’s energy crises and the general downturn in the economy, this could be one of the most difficult budget years since the early 1990s. Revenues are projected to fall 12 percent in 2002-2002—the deepest one-year decline in the post-World War II period. It is projected that the annual budget shortfalls will persist well beyond 2002-2003 absent corrective actions. As a result, it will be necessary to adopt substantial ongoing expenditure cuts and/or revenue augmentations in order to bring the budget back into balance. The Governor is planning on calling a Special Session of the Legislature in January to deal with the budget problems.

Legislative “term limits” is resulting in relatively frequent changes in leadership, particularly in the Assembly, where members must run every two years and are limited to three terms. It is expected that in January, Assembly Member Herb Wesson, a Democrat from Culver City, will succeed Assembly Member Robert Hertzberg as Speaker of the Assembly. While a number of other leadership and committee positions will also change in the Assembly—and to a lesser extent in the Senate, it is too early to predict with any certainty what those changes will be. However, it is anticipated that Assembly Member Marco Firebaugh, a Democrat from Los Angeles, will become the Majority Leader of the Assembly.

The Primary Election will be held March 5^th, and the General Election will be November 5^th. Redistricting and Term Limits will have a significant impact on the election. Seven of the 40 Senators and 21 of the 80 Assembly Members are “termed out.”

LEGISLATION

Most of the bills on this list that were signed into law by the Governor will take effect on January 1, 2002; however, “urgency bills” took effect on the day they were signed. Urgency bills require a two-thirds vote of each House to pass. Bills that did not pass this year are “two-year bills,” and legislators may try to move them in 2002. All two-year bills must pass out of their house-of-origin by January 31, 2002. In other words, Senate bills introduced in 2001 must pass off the Senate Floor by the end of January, etc. Bills are discussed in ascending numerical order. We are pleased to announce that SB 290, the tow truck weight fee bill, and SB 46, the bill addressing a number of CTTA’s issues, and which sets up a state wide task force to look at towing issues, were signed by the Governor. Both are discussed below.

Assembly Bills

AB 67 (Firebaugh) Topic: Vehicle Length. Allows motor homes up to 45 feet in length to operate on specified highways in California (Interstate and other approved Federal, State or approved highways) and provides specified requirements for the operators, such as possessing non-commercial Class B driver’s license with motor home endorsement. California was one of only 13 states that restricted motor homes to 40 feet. Status: Signed into law by the Governor.

AB 73 (Washington) Topic: Vehicles, Fines. Limits to $100 the additional penalty that can be assessed for failing to appear in court, pay a fine or bail, or comply with a condition of a court, when the original violation relates to certain vehicle registration violations, lighting equipment violations, windshield and mirror violations, and other specified equipment violations. Status: Senate Appropriations Committee, two-year bill.
 
AB 360 (Wesson) Topic: Vehicle Impoundment. This bill allows a person whose car was impounded for driving on a suspended license or without a license, but able to correct the problem, to get their car back before the 30-day period has expired. Existing law provides that when the legal owner retrieves the vehicle from impoundment, the legal owner shall not release the vehicle to the registered owner until the 30-day impoundment period has passed and the registered owner presents a valid driver's license. (Vehicle Code 14602.6(g).) The registered owner or his or her agent is responsible for all towing and storage charges related to the impoundment, and any administrative charges authorized under Section 22850.5. Note: The author is the in-coming Speaker of the Assembly and the bill passed the Assembly 79-0 and the Senate 40-0. Status: Signed into law by the Governor.
 
AB 770 (Nakano) Topic: Cell Phone, Vehicles. Requires that any collision report prepared by a member of the California Highway Patrol (CHP), or any other peace officer, to include information as to whether a cellular telephone or any other distraction, as defined, was a possible contributing factor to the collision and requires CHP to study the data gathered and to issue recommendations to the Governor and Legislature. The original intent of this bill was expanded to include any driver distraction, not only electronic distractions. Consequently, CHP and other officers will now make note of all driver distractions possibly contributing to vehicle collisions in this state. This expansion of the study was done, in part, because of evidence that has shown that while using a cellular phone when driving can be a dangerous distraction, it may be no more dangerous than changing the radio. Note: This bill was amended 7 times, “failed passage” once in the Senate Transportation Committee and only passed the Senate by one vote—21-14. This was an unusually tough fight for a bill that started off and ended up as a “study bill.” Status: Signed into law by the Governor.
  
AB 783 (Kelly) Topic: Vehicle Impoundment, Administrative Charges. Existing law provides that a city, county or city and county or state agency may adopt a regulation, ordinance, or resolution establishing procedures for the release of properly impounded vehicles and for the imposition of a charge equal to its administrative costs relating to the removal, impound, storage, or release of the vehicles. 
This bill provides that no administrative costs authorized under the above shall be charged to the legal owner who redeems the vehicle unless the legal owner voluntarily requests a poststorage hearing. No city, county, city and county, or state agency shall require a legal owner or the legal owner's agent to request a poststorage hearing as a requirement for release of the vehicle to the legal owner or the legal owner's agent. Note: The Ninth Circuit Court of Appeals (Federal Court) held, in part, that California Vehicle Code Section 22850.5 was preempted by Federal legislation. Thus, it is at least an open question as to whether this newly amended section is valid. Status: Signed into law by the Governor.
 
AB 871 (Cox) Topic: Vehicles, Dealers. This bill permits nonprofit organizations to sell donated vehicles on behalf of other nonprofit groups. This bill passed the Assembly 76-0 and the Senate 40-0. Status: Signed into law by the Governor.
 
AB 880 (Florez) Topic: Commercial Vehicles, Drivers. Modifies current law by making technical changes in the law requiring prospective employers of motor carrier drivers to obtain a Department of Motor Vehicles (DMV) report showing the driver's current public record, and conforms controlled substance and alcohol testing requirements to federal law. The author believes this bill moves California closer to a policy of "zero tolerance" for drug and alcohol use by persons who hold commercial driver's licenses in this state. The California Trucking Association agrees and states support for a data base system at the DMV where prospective employers can quickly obtain information on a driver that indicates he or she is medically unfit to drive. Note: CTA is the sponsor of this bill. Status: Assembly Appropriations Committee, 2-year bill. 
 
AB 911 (Simitian) Topic: Cell Phones, Vehicles. Prohibits any person from using a cellular telephone while operating a motor vehicle, unless that telephone is specifically designed to allow hands free operation and is used in that manner while driving--$20 fine first offense, $50 for second. 
Status: Assembly Transportation Committee, 2-year bill. This bill failed by a vote of 9-3 to pass the Committee—it needed 10 votes. 
 
AB 926 (Maddox) Topic: Towed and transported vehicles. Under existing law, a violation of the following requirements is a crime:
 (a) Every towed vehicle is to be coupled to the towing vehicle by means of a safety chain, cable, or equivalent device; (b) any vehicle towed by a tow truck is to be coupled to the tow truck by means of at least 2 safety chains in addition to the primary restraining
system; and (c) any vehicle transported on a slide back carrier or conventional trailer is to be secured by at least 4 tiedown chains, straps, or an equivalent device, independent of the winch or loading cable. Under existing law, a semitrailer having a connecting device
composed of a fifth wheel and kingpin assembly, and a towed motor vehicle when steered by a person who holds a license for the type of vehicle being towed are exempt from the requirements described above.
 
This bill would delete the application of the above-described exemption from the requirements described under (c) above, thereby requiring additional vehicles to comply with the requirements under(c). Because this would expand the scope of an existing crime, this bill would impose a state-mandated local program. (2) This bill would also recast the requirement under (c) above to apply its security requirements to the transportation on any trailer, rather than only conventional trailers. Status: Assembly Transportation Committee, 2-year bill. The author cancelled the hearing on this bill.
 
AB 1029 (Oropeza and Reyes) Topic: DMV Records. Affords confidentiality to the Department of Motor Vehicles (DMV) records of certain police or sheriff's department employees. Status: Signed into law by the Governor.
 
AB 1262 (Migden) Topic: Motor Carriers, Drivers. Requires commercial motor carriers employing more than 20 full-time drivers to report to the Department of the California Highway Patrol (CHP) whenever more than half of their drivers are replaced within a 30-day period and that a CHP safety inspection be performed. Require CHP, within 21 days of receiving the report of such driver replacement, to inspect the motor carrier to ensurethat it is in compliance with all safety operation requirements including, but not limited to, controlled substance testing and hours-of-service regulations. Define "employing" as having an employer-employee relationship with a driver or contracting with an owner-operator, as described in the Vehicle Code, to provide transportation services for more than 30 days within the previous year. Define a "full time" driver as one that is on-duty with the motor carrier for an average of 30 hours or more per week during the course of his or her employment or contract with the motor carrier. Specify that the reporting requirement does not apply to a motor carrier who, through normal seasonal fluctuations in the business operations of the carrier, or through termination of a contract for transportation services other than a collective bargaining agreement, replaces drivers in one geographical location with drivers in another geographical location. The author and proponents believe that high driver turnover rates are often symptomatic of operational problems that can lead to degradation of carrier highway safety programs. They believe that the provisions in this bill will help detect potential safety problems before they become a serious threat to public safety and also bring trucking companies into compliance immediately, without them having to face huge fines. Status: Signed into law by the Governor. This bill was sponsored by the Teamsters and supported by CTA.
 
AB 1280 (Reyes) Topic: Commercial Vehicles. According to the California Highway Patrol (CHP), this bill is designed to update and bring state law in full conformity with the federal Motor Carrier Safety Improvement Act, which was enacted by thefederal Congress in 1999. Failure to adopt compatible state statutes could result in the withholding of federal transportation funds, including funds for the Motor Carrier Safety Assistance Program. The CHP indicates that the deadline set by the federal government for substantial compliance with the Act is October, 2002. 
 
Under existing law governing commercial motor vehicle safety, the term "serious traffic felony" is defined to include specific traffic violations. This bill includes in that definition driving a commercial motor vehicle without a commercial driver license, driving a commercial motor vehicle without the driver having in his or her possession a commercial driver license and driving a commercial motor vehicle when the driver has not met the minimum testing standards for that vehicle as to the class or type of cargo the vehicle is carrying. Existing law prohibits an employer to knowingly allow, permit, or authorize a driver to drive a commercial motor vehicle under specified conditions. This bill also prohibits an employer to require the driver to drive under specified conditions which would be expanded to include instances where the driver or the commercial motor vehicle or motor carrier operator is subject to an out-of-service order or instances in violation of any law or regulation pertaining to a railroad-highway grade crossing. Existing law prohibits a driver of a commercial motor vehicle from operating a commercial motor vehicle for a period of one year if the driver is convicted of a first violation of specified vehicle-related offenses. 
 
This bill additionally includes within the listed offenses driving a commercial motor vehicle when the driver's commercial driver is revoked, suspended, or cancelled based on the driver's operation of a commercial motor vehicle, when the driver is disqualified from operating a commercial motor vehicle based on the driver's operation of a commercial motor vehicle, and when the driver causes a fatality through negligent or criminal operation of a commercial motor vehicle resulting in a conviction as described pursuant to federal law. 
 
Existing law prohibits for a lifetime a driver of a commercial motor vehicle from operating a commercial motor vehicle if convicted of more than one violation of specific vehicle-related offenses. This bill includes in those listed offenses the additional multiple offenses of driving a commercial motor vehicle when the driver's commercial driver license is revoked, suspended, or cancelled based on the driver's operation of a commercial motor vehicle, when the driver is disqualified from operation of a commercial motor vehicle based on the driver's operation of a commercial motor vehicle, and when the driver causes multiple fatalities through negligent or criminal operation of a commercial motor vehicle resulting in a conviction as described pursuant to federal law.
Status: Signed into law by the Governor. This bill passed the Assembly 72-5 and the Senate 23-13.
 
AB 1472 (Longville) Topic: Commercial Vehicle Registration Makes technical changes in the Vehicle and Revenue and Taxation Codes to clarify the intent and implementation of the Commercial Vehicle Registration Act of 2000, which instituted a gross vehicle weight (GVW) fee system for trucks and a permanent trailer plate identification (PTI) program for trailers. Also fixes a “chaptering out” problem with SB 290 dealing with GVW weight fees. Status: Signed into law by the Governor.
 
AB 1613 (Washington) Topic: Vehicle Forfeiture and Storage. Narrows the instances when a vehicle can be impounded because the person is driving with an invalid license and makes specified changes regarding post-storage hearing. This bill is very similar to SB 1765 (Hayden) from last year, which dealt with vehicle impoundments. Although SB 1765 was vetoed, supporters argue the need still exists to re-examine car impound laws.
 
Although it appears the author wishes to ensure that vehicles are impounded only for serious traffic offenses, the Vehicle Code section cited in the bill still allows a police officer to impound a vehicle on the spot if the driver's license was suspended for numerous non-traffic related convictions, such as prostitution, vandalism, truancy, failure to appear, or a dishonored check sent to DMV. 
 
Although they have not registered a formal opinion regarding AB 1613, several law enforcement agencies expressed concerns about certain provisions in SB 1765 that are also contained in this bill. Opponents of last year's SB 1765 argued that this bill "unnecessarily limited the authority of peace officers to enforce the laws of this state as they pertain to people who place each of us in peril by driving with a suspended license, or simply do not have a license. We believe that if a person is caught driving without a license - especially when that person causes an accident - that a peace officer should have the authority to arrest that person. Current law as it pertains to the impoundment of vehicles under this section is adequate." It is unclear whether or not the author and law enforcement officials have worked out their concerns in this bill. Last year, SB 1765 (Hayden), which dealt with many of the same issues as this bill, was vetoed by the Governor. In his veto message, the governor stated "this bill removes an important sanction for not paying traffic fines and could result in an increase in refusals to pay these fines and a reduced adherence to traffic laws, thus reducing public safety. It also unreasonably limits the authority of the peace officers to enforce laws and may result in more vehicles being driven by uninsured drivers. Finally, this bill could result in significant unbudgeted state costs."
 
Status: Assembly Transportation Committee, 2-year bill. Note: The author twice cancelled hearings on this bill and the Assembly Committee on Public Safety has requested referral of this measure should this bill pass the Assembly Transportation Committee.
 
AB 1705 (Committee on Transportation) This urgency bill makes minor clarifying changes and references to provisions contained in the Traffic Congestion Relief Act of 2000. AB 2928 (Torlakson, 2000) was a comprehensive traffic congestion relief and transportation funding measure originally proposed by the Governor and later amended and approved by the Legislature. The bill, also known as the Traffic Congestion Relief Act of 2000, appropriated $2 billion from the General Fund and sales taxes in 2000-01 and shifted the State's sales tax on gasoline for the next five years from the General Fund to the congestion relief program (another $5 billion), thereby providing an estimated $7 billion for transportation and transit projects and services and local road repairs over a six-year period. SB 1662 (Burton) was enacted after AB 2928 as a trailer/cleanup measure to the earlier legislation. Status: Signed into law by the Governor.
 
AB 1707 (Committee on Transportation) This bill is intended to deal with several minor, non-controversial transportation issues by making technical and clarifying changes and repealing obsolete statutory provisions. Status: Signed into law by the Governor. 
 
AB 1708 (Committee on Transportation) “The Tow Truck Hazardous Waste Bill” The Assembly Transportation Committee is currently working with DTSC, CHP, Caltrans, the California Tow Truck Association and the California Trucking Association in an effort to draft an acceptable solution for removing both cars and spills from the state's highways in an efficient manner. Several concerns have been raised regarding the implementation of this legislation. Namely, responsibility issues with regard to toxic spills, compensation for increased duties of tow truck operators, and health and safety issues with regard to the handling of toxic substances. All parties agree, however, that the quick removal of disabled vehicles and fluid spills from roadways is highly desirable and they wish to see this bill finalized. The prompt removal of disabled vehicles from roadways is a key ingredient in the state's congestion relief program.
 
In its current form the bill authorizes a tow truck driver who is engaged to remove a disabled vehicle from a roadway and to clean up a release of vehicular waste to transport that waste from the scene without the completion of a hazardous waste manifest and without being a registered hazardous waste transporter, if specified conditions are satisfied. Specifically, this bill  : 
 
 1)Authorizes a tow truck company whose driver removes disabled 
 vehicle waste from the roadway to temporarily store that waste 
 on its premises. 
 
 2)Requires a tow truck driver, engaged to remove a disabled 
 vehicle from a roadway, to spread absorbent material on that 
 portion of the roadway where vehicular fluids have been 
 discharged from the disabled vehicle, and remove the mixture 
 of vehicular fluids and absorbent material from the roadway, 
 pack it in containers and transport it to prescribed 
 locations.
 
 3)Limits the amount of cleanup waste to 10 gallons.
 
 4)Requires that tow truck drivers receive appropriate training.
 
 5)Requires that the accident cleanup waste be transported in 
 closed containers that are secured to the tow truck vehicle to 
 prevent spillage during transportation.
 
 6)Requires the use of a shipping paper with a generic 
 description of the waste, and the date and location of the 
 pickup.
 
 7)Requires that the interim storage site container be properly 
 labeled and stored, and that there be no handling of waste at 
 the site, other than loading and unloading, and no commingling 
 of incompatible waste.
 
 8)Requires disabled vehicle waste to be shipped from any interim 
 storage site no later than 90 days after it is received at the 
 site, or 180 days if no more than 1,000 kilograms of disabled 
 vehicle waste is accepted at the site in any calendar month.
 
 9)Requires that shipment from the interim site be accompanied by 
 a hazardous waste manifest and be transported by a registered 
 hazardous waste transporter.
 
 10)Requires an operator of an interim storage facility to 
 maintain records of incoming and outgoing shipments for a 
 period of three years.
 
 11)Declares that the person responsible for the release of the 
 vehicular fluid from the disabled vehicle is the original 
 generator of the waste, if the waste is hazardous waste.
 
 12)Declares that when tow truck company and contracted drivers 
 appropriately handle hazardous waste, they shall not be held 
 liable under state law for any subsequent improper disposal or 
 other management of that waste by an individual or entity 
 other than the tow truck company or its employed or contracted 
 drivers.
 
 13)Specifies procedures for removal of disabled vehicle waste.
 
 14)Declares that the law enforcement agency having primary 
 traffic investigative authority on the roadway where the 
 disabled vehicle incident occurs shall ensure that any readily 
 visible fluid or other material not removed by the tow truck 
 driver is otherwise properly and promptly removed.
 
 15)Declares that if the tow truck driver does not remove all 
 visible disabled vehicle waste and cargo waste from the 
 disabled vehicle scene, the tow truck driver shall contact the 
 law enforcement agency having primary traffic investigative 
 authority on the roadway where the disabled vehicle incident 
 occurs, that agency shall be responsible for ensuring that any 
 remaining readily visible disabled vehicle waste and cargo 
 waste are properly and promptly removed.
 
 16)Requires the law enforcement agency having primary traffic 
 investigative authority on the roadway where the disabled 
 vehicle incident occurs shall notify the state or local agency 
 responsible for maintaining the street or road on which the 
 release occurred.
 
 17)Declares that the tow truck company may charge an additional 
 fee for cleanup. 
 
 18)Provides for a review process on or before July 1, 2005.
 
Status: Senate Transportation Committee, 2-year bill. The parties should resume negotiations in December 2001.
 
 
 
Senate Bills 
 
SB 46 (Polanco) The various provisions in this legislation were the result of a collaborative effort involving the DMV, the CHP, and the California Tow Truck Association. The bills provisions are set forth below:
 
 Existing law authorizes the State Department 
 of the California Highway Patrol (CHP) to enter into 
 service agreements with providers of towing services to 
 determine which providers will be summoned by the CHP for 
 public assistance. This bill establishes the Tow Truck Advisory Committee to 
 develop proposed statewide tow truck standards and report 
 to the Legislature on or before December 31, 2002.
 
Note: The committee shall comprise 10 members who shall be appointed by
the CHP Commissioner to represent the following groups:
 (1) Two members from the department.
 (2) Two members representing the California Tow Truck Association,
with one member representing northern California and one member
representing southern California.
 (3) One member from the Department of Transportation.
  (4) One member representing road service organizations.
 (5) One member representing transit authorities.
 (6) One member from the California Trucking Association.
 (7) One member from the Department of Motor Vehicles.
 (8) One member representing the League of California Cities.
 (b) The committee shall review all relevant laws affecting tow
trucks with a goal of improving tow truck industry safety and shall
develop proposed statewide tow truck industry standards, including,
but not limited to, all of the following:
 (1) Training.
 (2) Criminal history disqualification.
 (3) Appeal processes.
 (4) Minimum safe gross vehicle weight ratings for tow trucks.
 (c) The committee shall function only during the life of this
project and shall submit a report of its findings and recommendations
to the Legislature on or before December 31, 2002. 
 
 The bill specifies that when conducting a criminal history 
 and driver history check of any California Highway Patrol 
  rotation tow truck operator, the Commissioner may utilize 
 the California Law Enforcement Telecommunication System.
 
 Existing law requires every tow truck driver to notify each 
 of his or her employers and prospective employers of an 
 arrest or conviction of any specified crime.
 This bill specifies that this notification is required to 
 be given by each freeway service patrol tow truck driver 
 any CHP rotation tow truck driver and would require the 
 department to be one of the recipients of the notification.
 
 Existing law makes it unlawful for a tow truck driver to knowingly 
 provide certain false information on applications for a tow 
  truck driving certification or fail to comply with certain 
 notification requirements.
 This bill specifies that these provisions apply to CHP 
 rotation truck operators including freeway service patrol 
 tow truck operators.
 
 Existing law prohibits a vehicle lien from attaching to any 
 personal property in or on the vehicle that is garaged and 
 requires that personal property to be given to the current 
 registered owner or the owner's authorized agent upon 
 demand.
 This bill requires the keeper of the garage, upon demand, 
 to give the personal property to the current registered 
 owner or owner's agent without charge during normal 
 business hours.
 
 Existing law provides procedures for the sale of a vehicle 
 at a lien sale and requires the lienholder, following the 
 sale of a vehicle at a lien sale to remove and destroy the 
 vehicle's license plates and to submit a completed "Notice 
 of Release of Liability" form to the State Department of 
 Motor Vehicles (DMV).
 This bill requires the person who conducts the sale, rather 
 than the lienholder, to perform these duties.
 
 Existing law authorizes the DMV to license private 
 registration services to receive applications for vehicle 
 registration and transmit those applications to DMV.
 This bill   authorizes the DMV, in conformance with certain 
 provisions in existing law relating to personal services 
 contracts with private parties, to establish contracts for 
 electronic programs to join the DMV with qualified private 
  industry partners to provide vehicle title and vehicle 
 registration transactions and authorizes the DMV to enter 
 into contractual agreements with the following three types 
 of private industry partnerships:
 
  This bill is nearly identical to SB 969 that was approved by the 
 Legislature last year but which was vetoed by the Governor. 
 In his veto message, the Governor noted:
 "This measure would authorize lienholders to utilize agents