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HomeMy WebLinkAboutCouncil Minutes - July 26, 2017.pdf 1 July 26, 2017 Mayor Jerry Merrill Council Members: Christopher Mann Jordan Busby Donna Benfield Tisha Flora Brad Wolfe Sally Smith City Staff: Stephen Zollinger – City Attorney Matt Nielson – Finance Officer Keith Davidson – Public Works Director Val Christensen – Community Development Director Scott Johnson – Economic Development Director Blair Kay – City Clerk 5:30 P.M. City Hall Mayor Merrill led the pledge. Council Member Flora said the prayer. Roll Call of Council Members: Attending: Council President Smith, Council Member Flora, Council Member Benfield, Council Member Mann, Council Member Wolfe and Mayor Merrill. Council Member Busby asked to be excused. Mayor Merrill welcomed everyone to the meeting and thanked Rachel Whoolery and Trent Vandersloot for attending the meeting. Council President Smith asked if booting is in fact illegal per state statute. City Attorney Zollinger indicated the City’s legal department believes that it is illegal to disable a vehicle through any mechanism. Mayor Merrill referred to a clarifying letter sent to the city from Brian Kane, Assistant Chief Deputy with the Attorney General Office of Idaho regarding the legality of booting. City Attorney Zollinger indicated, through conversations he has had with Mr. Kane regarding booting, Mr. Kane agreed that some of the mechanisms being used by some of the booting companies in Rexburg would not withstand a challenge in court. City Attorney Zollinger said there is no legal mechanism in which someone can seize someone else’s property and hold it until payment is received with the exception of a tow truck. City Attorney Zollinger explained historically, car boots came into existing throughout the country in private, “for profit” parking lots. In the paid for parking lot, in order for the parking attendant to maintain the ability to collect the fee that they were entitled to for allowing the car to park on their property was to hold the car in the parking lot. This made it possible for the parking lot attendant and the owner of the vehicle to come in contact with each other to discuss the payment for parking in the lot. This was the agreement that was made when the owner of the vehicle passed the sign stating the cost to park in the lot. The practice of booting cars in a private, “for profit” parking lots has transitioned over the years into a mechanism for the owner of the vehicle to come in contact 35 North 1st East Rexburg, ID 83440 Phone: 208.359.3020 x2313 Fax: 208.359.3022 blairk@rexburg.org www.rexburg.org City Council Work Meeting July 26, 2017 2 with the aggrieved party. The aggrieved party being the owner of the property whose property is being taken advantage of by the owner of the vehicle unauthorized to park in their parking lot. He said over the last several years the city has tried to have that happen; however, some of the apartment complex owners have accomplished a finessing of the rule that as a result has caused for more of a civil resolution. City Attorney Zollinger explained when a car is parked illegally; a boot is put on the car to get the owner of the vehicle to make contact with a property owner representative. The owner of the vehicle can then speak with the representative to explain the reason why they were parked there and if they were given permission to park there. In a perfect world the representative can then verify with the property manager if the vehicle owner had permission to park there. If the vehicle owner did have permission then the boot would be taken off the vehicle. If they did not have permission then the vehicle owner would have to pay the fee to park there. He said with this type of scenario the boot is doing what it was intended to do; it brought the two parties together to resolve the issue. City Attorney Zollinger indicated the problem with the way the booting system is working in Rexburg is that it’s being used as a seizure of property technic without a process. The current booting system by some of the apartment complexes is being used without any process. He said under those terms and conditions described, Mr. Kane, the author of the letter from the Attorney General’s Office agrees with him that it is a seizure of property without due process. City Attorney Zollinger explained that City Ordinance 911 was drafted by him with input from the national towing industry representative and DJ Barney, who owned the biggest towing company in Rexburg at that time. Ordinance 911 was originally written as a prescriptive, for example; if you are going to use an ordinance as a parking enforcement and avail yourself of this type of manned parking management you will need to abide by certain conditions. He said before ordinance 911 was passed through lobbying efforts they striped off the portions that made the ordinance prescript. By doing this the ordinance became more of an authoritative code. He mentioned he agrees with Mr. Wood that local government does not have the authority to write an authorization code to overwrite a criminal code; it just doesn’t exist. The city can write a code to be more restrictive not less restrictive. When it comes to the criminal code it’s always less restrictive if the city tries to say it shall not be a crime to do something when the state is calling it a crime. The city’s legal department agrees with the prosecutor’s office that it is a criminal act to boot a car. He said you should not rely on City Ordinance 911 as an authorization to boot. Council Member Benfield asked what the correct process would be; some of the apartment complexes are booting with a process and others are not. City Attorney Zollinger explained when someone arrives at a commercial parking lot they see a sign stating the cost to park, etc. They proceed to swipe there card to enter the parking lot; by doing this a contract has been formed. He commended the owners of the apartment complexes. They have done a good job of posting signs where needed to inform people of the consequences for unauthorized parking; however, there is an area within every apartment complex that allows anyone to park. The visitor parking allows anyone to park in those stalls without forming a contract or any type of exchange. There is a break down in the system when private parking allows free public access. The paid parking lots do not have free public access, per say; they have contract access. He said for example, a paid parking customer fails to pay or insert their ticket into the machine to enter the paid parking lot, that would create a breach in the contract terms because the offer was they would pay a fee to park in the parking lot. The car would then be booted because the car in that slot number did not pay. The process would trigger the owner of the car and parking lot manager to interact. The owner of the car can then explain the reason for non-payment or a miscommunication; for example, he paid and the money was in the wrong slot. The aggrieved party would then determine if they were really aggrieved or if they want 3 payment for the car being parked there. The booting company would remove the boot and the customer would be able to drive away. City Attorney Zollinger indicated Boise is a good example because they have “for profit” parking lots where the booting company can’t keep the boot on the car if there is a dispute as to who is telling the truth. Information is exchanged and the booting company takes the dispute to a judge who becomes the final arbiter of the process. The people in Boise can’t remember the last time the paid parking lot has gone to court because in most cases the person did not pay and doesn’t want to risk going to court and having to pay for attorney fees. There is a breakdown of that process here in Rexburg because in order to operate a residential housing facility in Rexburg there are zoning rules that require visitor parking. There is no contract entered into with visitor parking because the land owners are contractually obligated by the city and university to provide visitor parking with no strings attached. City Attorney Zollinger said what is needed is a shift. First of all, the boots need to be given some legal authority at a state level. They didn’t exist when the towing ordinance was written; however, they will not be given authority to seize someone’s property because that would be unconstitutional. When the legislators do a detailed review of Idaho codes 49-229, 49-208 and 49-222, he presumes they will give the booting companies the same authority of a towing company and that could include the ability to litigate to obtain their fees and offer them some protection. He explained the difference between towing and booting a car in the apartment complexes that are being discussed. He asked the following question, “What is the grievance of a car that is not taking up a money generating space? It’s taking up someone else’s space. What would be the fastest way to retrieve that parking space for them? Towing the car would the faster way to retrieve the parking space; however, booting the car would be slowest way to retrieve the space for them. The tow trucks lobby strongly for a super lien and that lien only applies for the cost of the tow. Booting doesn’t have the same result as towing because it doesn’t remove the problem. One of the reasons tow trucks were able to obtain a no process lien was because they are called upon to relieve someone of a burden; however, booting does not relieve anyone of a burden it imposes a penalty upon the party that has created the burden. Council Member Wolfe asked a hypothetical question; what if the apartment owners were the ones installing the boot on the car that is not authorized to park in their parking lots instead of hiring a third party booting company. City Attorney Zollinger replied, under the criminal code the legal process will cost more in resolving the issue. City Attorney Zollinger mentioned he couldn’t find a city that would share their statistics. Salt Lake City does not have third party booting they have several private “for profit” parking lots. Provo outlawed predatory booting and third party booting is not allowed; however, owner booting is allowed. Council Member Wolfe asked if the scenario would change if the apartment complexes had no visitor parking and the owners did their own booting. City Attorney Zollinger said if there was signage stating private parking the charge would be trespassing; however, there is still the issue of Idaho code 49-229 the seizure of property. The issue comes up when a third party company refuses to release the car from the boot. There have been circumstances where the manager of the apartment complex is taking responsibility for the miscommunication and the third party still doesn’t want to release the car until they receive payment. The manager should be the one to make the decision of releasing the car not the third party company wanting the payment before releasing the car. This is where the situation turns into a property seizure. 4 Mayor Merrill said he spoke with Nathan from Boise about their process for removing a boot. He said if the manager requests that the boot be removed they will remove the boot. He said they work with the managers and people to come to a reasonable solution. They also do not boot vehicles with utility logos because it is illegal. The City of Boise has a person that licenses the companies and if anyone has a grievance with a towing or booting company, they can contact that person. This person is then responsible for resolving the issue between the company and the person making the complaint. City Attorney Zollinger said Rexburg had a similar process where BYU-Idaho University was the arbiter between the student and company. The university stopped doing this because a lot of the issues were generated by non-students and felt it was inappropriate to be administering the hearing panel for everyone especially the non-student complaints. When the university was serving as the arbiter it worked effectively and it was beneficial because it created a process. City Attorney Zollinger said currently City Ordinance 911 is being used as an authorization and it was never intended to be used in this way. There are some attorneys who may think its okay for the ordinance to be viewed as authorization. His reasoning for not viewing the ordinance in this way is because this does not give authority to overwrite state code with a city ordinance. His recommendation and the best course of action would be for City Council to repeal City Ordinance 911. He said the worst case scenario in repealing the ordinance is that the booting companies would have to go to court to collect their fee. Council Member Benfield asked if ordinance 911 is repealed will it take the city out of the picture entirely and the issue fall back to the apartment owner, booting company and the violator. City Attorney Zollinger replied yes that is correct. Ryan Cobar owner of RC Booting said he has been booting for six months. He said his policy is to remove the boot when the apartment management indicates to do so. Council Member Flora asked what would happen to Mr. Cobar’s booting buisness if City Ordiance 911 is repealed. City Attonery Zollinger said by repealing the ordinance it would take the confusion away. The booting company would need to make the decision to boot or not to boot based on the state statute code 49-229. City Attorney Zollinger said until state code 49-229 is brought up to date it is illegal to disable someone’s vehicle. Rachel Whoolery expresed her concerns with the high cost to tow a car verses booting a car. Discussion regarding parking structures and whether or not a tow truck would fit to tow a vehicle. Rachel Whoolery said she believes the letter Brian Kane, Assistant Chief Deputy with the Attorney General Office of Idaho indicates under state code 49-208 and 49-222 a city may enact an ordinance that allows a company to boot. She said City Ordinance 911 is the ordinance that would allow booting in Rexburg. City Attorney Zollinger said he spoke with Mr. Kane via telephone regarding code 49-208 and 49-222. He asked Mr. Kane if ordinance 911 is being used as property seizure if he would still stand by his answer and he said “absolutely not”. Towing has a statutorily provision stating you can; however, booting does not. Council Member Wolfe asked if City of Rexburg repealed ordinance 911 would the booting company still be able to boot based on their interpretation of being in compliance with the state statute. City Attorney Zollinger said they should consult their attorney. He is legal counsel for City Council and his advice is they should not facilitate the violation of state code 49-229. Ryan Cobar said he finds it difficult to boot because there are so many students aware of the state statute. 5 Council Member Flora asked if ordinance 911 could be amended to require a process that would allow the booting company and property manager to come together. City Attorney Zollinger said the simple answer is no until state code 49-229 is amended to allow booting in a civil sense and not a seizure sense. Mayor Merrill asked why ordinance 911 couldn’t be amended to facilitate the process to allow the booting companies to boot. Council Member Flora asked why other cities are still booting. City Attonery Zollinger said until state code is amended and a process is established so as to not seize someones property without due process there are no other options. Council Member Wolfe asked if someone was booted and used the state code 49-229 as a defense in court, could they win. City Attonery Zollinger retold an experience of a young lady that felt she was wongfully booted. She informed her father who owned a law firm in St. Louis, Missouri. He had interns research Idaho State Code. They then sent him a memorandum stating who their local legal representation was going to be and that they were are going to tear him apart. He handed the memorandum to the booter. The booting company to their credit was able to resolve the issue without having to go to court. City Attonery Zollinger continued to explain that people have been aware of state code 49-229. He said its like people driving five miles over the speed limit, if it becomes an issue on a particular street an officer is sent to that street and pulls over anyone going one mile above the speed limit. The City has attempted to resolve the booting issue for the past 15 years. Were it not for a hightened sense of awareness that was created by one of the booting companies it could have remained business as usual. The booting issue was brought up to the city because of the ciminal code and because it was identified as a ciminal violation. The issue was publicly acknowleged and now people are awear of Idaho code 49-229. Council Member Wolfe said in his opinion there are three issues that need to be resolved; First, the city needs to stay out of the process, Second, preditory booting needs to stop, and Third, the city doesn’t want to be contrary to Idaho State code. City Attorney Zollinger said there are many ways to resolve the issues with booting; however, he cannot advise City Council as to which solutions are available until state code 49-229 is amended. His opinion has been driven by the conversations he has had with Mr. Kane. Council President Smith asked about the companies called into the police department by the booter because the boot was taken off the vehicle. City Attorney Zollinger said the City of Boise will not prosecute unless there is video evidence of the person taking the boot. He said he does not want to encourage a situation where someone is allowed to steal the boot. The best solution to resolve the problem is to create a civil remedy that is necessary for booting to continue as a deterrent. Council Member Flora asked what is the civil remedy. City Attorney Zollinger said the civil remedy would be to use 49-229 as a means of forcing contact and not as a means of seizing property. City Attorney Zollinger indicated city ordinance 911 is being used inappropriately. The city has the authority to police the city streets in the following fashions: a vehicle could be temporarly disabled when it is blocking a street because a street is a means of ingress and egress. The city cannot seize the car until the fee is paid. Due process is required for siezer of someone’s property. Trent Vandersloot questioned if the problem is solely with the way the booting businesses are operating. He said as an apartment complex owner he is on board with fixing the way these businesses operate. There are certain things that apartment complex owners could impose on a booting business before they hire them; it could include requiring their personnel to wear uniforms, badges and body cameras. They can then view the video on the way the booting incident is being 6 dealt with. He mentioned if the property manager has to sign off every boot it is not fesable and it would create a heavy burden for his apartment complex. Ryan Cobar asked if the apartment complexes could hire him as a representative. Council Member Mann said he has managed student housing apartments for over thirty years. He believes that apartment owners have the right to manage their parking lots by towing or booting as long as they have proper signage and anyone parking in them illegally should be subject to the fines stated on the signage. The apartment complex owners need to be involved in enforcing unauthorized parking by signing off on the boot or towing of a vehicle. Council Member Mann said this is a legal issue that has yet to be decided on a state legistative level. He is not in favor of repealing city ordinance 911 because it will create more confusion for everyone involved. He is in favor of amending or creating a city ordinance that will be clear and consider the students and property owners. The booting dicussion has been an on going issue for years and has been before City Council several times. A solution needs to be decided amongst City Council before the students return for the fall semester. Council Member Benfield asked what other cities are doing regarding booting. Council Member Mann said he read the City of Boise’s booting ordinance. They allow booting on private property under certain criteria, for example; the booting company has to be licensed, their personnel have to wear a uniform and a badge. Mayor Merrill asked if there is a way for the City to require booting companies to release the boot with or without payment and if the violator doesn’t pay then they can go through due process. City Attorney Zollinger said he believes if this is the way the booting company is going to transact business the chances of the violator being prosecuted are slim to none because they are not seizing any property and the city is not intersted in resolving the legislative void for them. The current way in which City Ordinance 911 is being used as a mechanism that states it’s the city that is allowing us to seize private property. Mayor Merrill asked if City Ordinance 911 can be amended to not allow the seizure of property. City Attorney Zollinger replied the city should not be creating an amendment that is still illegal. There is a state statute stating it is illegal to disable someone else’s vehicle. A city ordinance should not give the impression of immunity from prosecution to the booting companies. He does not believe there is anything the city can write to prevent prosecution under state code 49-229. City Attorney Zollinger mentioned repealing ordinance 911 is not what created the turmoil in the last two weeks. The turmoil was created by everyone assuming that ordinance 911 authorized booting. Ordinance 911 cannot and it did not authorize booting. The city doesn’t have the authority to authorize booting because there is not a state statute for booting. The shifting of police authority to a private parking lot is clearly not one of those acts the city has authority to do. One of the best things the city can do for the booting companies and apartment complex owners is to repeal ordinance 911. He said let both parties use the process established for booting in the cities of Boise, Twin Falls and Pocatello as examples and let them defer to their own attorneys opinions. Let their lawyers defend their own opinions. The city needs to get out of the business of allowing them to think the city is their authorization to boot. He expalined if someone were to be challenged and he was called into court because he wrote the ordinance and if he was asked do you believe ordinance 911 creates an authority for booting in the State of Idaho, he would reply no. City Attorney Zollinger indicated at the time city ordinance 911 was writen the city was under the impression that towing and booting were going to be synonymous in the State of Idaho; however, that was not the case. The ordinance was drafted by him and with the assistance of a national towing 7 organization representative that represented locations where booting was allowed. At the time the ordinance was writen it was intended to be proscriptive to say you can only do preditory booting and towing under the following conditions. They scraped off the “you can only do” and left the parts “you can do”. The city has no authority to authorize booting in the State of Idaho. Council Member Mann expressed his concerns about not having a solution before the students arrive. The situation could be chaotic. City Attorney Zollinger indicated there will be chaos because of the number of people aware of state code 49-229 and a memorandom from a law firm in Missouri that will be happy share all of the information they have gathered starting with why it is illegal to boot. Council Member Mann asked if there is a way to speed up the process for a solution. The legislators need to amend state code 49-229 before a solution can be put in place by the city. Dustin Burton said there is an open dispute on whether or not state code 49-229 allows the City of Rexburg to boot. The dispute can be argued back and forth between attorneys and still not come to an agreement. He said the worst thing the city can do is repeal ordinance 911 assuming that the state code does not give the city the authority to write an ordinance regarding booting. He suggested an ordinance be writen that will work best for all of the parties involved and if later a judge strikes it down the city would not be in a worse situation than it is now. Council Member Wolfe questioned what would happen if ordinance 911 is not repealed and someone disputes state code 49-229 in court, how would that affect the city. City Attorney Zollinger said the court could decide the city didn’t have the authority to override the criminal code. Ryan Cobar said the State Senator said to not worry about state statute 49-229 because it will probably be amended in January. He said students have came to him and informed him that they would rather be booted than towed. Council Member Wolfe questioned who would be liable for violating state code 49-229 the booting companies or apartment complex. City Attorney Zollinger replied it would fall upon the booting companies. Council Member Wolfe said the responsibililty needs to fall back on to the property owners. He owns a business and understands as business grows the posibility of raising rates occurs. Rachel Whoorely mentioned the way her parking plan works is that the student assigned to a parking stall calls the booting company when someone else is parked in their stall. Council Member Wolfe said he would like to see each parking stall numbered. Mayor Merrill asked about the time for when cars are booted the most. The time varies depending on serveral factors. Discussion regarding the different solution of who would be responsible of initiating the boot of a vehicle. City Attorney Zollinger said to his knowledge there is no one in this room that has attempted to effectuate a seizure of property; however, it is the one time a city ordinance is being used as a seizure of property without due process. The city has to write the laws that the legislator gives them authority to write. The city doesn’t have that authority yet when it comes to booting. Mayor Merrill said that due process has to be part of the solution. City Attorney Zollinger explained if someone goes to the prosecutor claiming they were disabled, the first thing the prosecutor is going to ask them is if they were parked illegally and ask if the boot was removed once contact was made with them. If the booting company removed the boot without demanding payment be made on the spot then the question arises was the vehicle really disabled. It is when the booting company demands payment and will not remove the boot until payment is 8 made that it becomes what some people are saying to be extortion. If someone is holding someone else’s property without due process and it has not been statutorily authorized than there is a problem. City Attorney Zollinger said the amendments to city ordinance 911 can be made in anticipation of what we believe the legislators will likely do. Discussion regarding the process to amend city ordinance 911. Dustin Barton explained he is concerned that without some type collateral the students will refuse to pay for the boot. Ryan Cobar asked if a contract is made between the tentant and property owner, the tentant would need to abide by certain rules and if those rules are not followed the tentant could be evicted. The owners of the property has property rights and they should be able to manage their property as they see fit. City Attorney Zollinger said there is still an eviction process. Rachel Whoolery said the punishment should fit the crime. The price of a tow is to high. She called the Police Department to obtain data regarding the amount of calls they received regarding booting. The Police Department replied the calls regarding booting have doubled. The majority of the calls are from the booting company because the violator is arguing against them. Council Member Mann indicated booting has been an ongoing issue; it has come before City Council serveral times in the past seven years. Council Member Benfield questioned what happens if ordinance 911 is left in place the way that it is written. City Attorney Zollinger said by leaving the ordinance in place it gives the perceived authority that the city does not have the authority to give. The argument being discussed is if the city has the authority to overwrite criminal code? He does not believes the city has that authority. City Attorney Zollinger asked Ryan Cobar with RC Booting how many boots he installs in a weeks time. Ryan Cobar said the booting companies need some way to be able to defend themselfs in the courts and he believes ordinance 911 will do that. Discussion regarding the amount of police man power it takes to settle a dispute between the booting company and the violator. Rachel Whoolery asked if the booting company is not behaving in a way that complies with ordinance 911 then a complaint could be filed against that booting company. City Attorney Zollinger said when ordinance 911 was drafted, it was not drafted to allow booting it was drafted to regulate booting because at that time the city thought booting was allowed. The city wanted to be more restrictive than the state. When section nine of ordinance 911 was originally written to indicate if you are going to boot you need to boot in the following way. When the ordinance was redrafted and modified it somehow has been interpreted as an authorization to boot as opposed to a restriction to boot. Council Member Smith moved to add the discussion of ordinance 911 on the August 16th City Council Meeting; Council Member Benfield seconded the motion; discussion Council Member Smith withdrew the motion; Council Member Benfield withdrew the second to the motion. 9 Council Member Flora motioned to leave City Ordinance 911 in place until there is more information on how state statute 49-229 may be amended by the state legislator. Motion failed for lack of a second. Discussion regarding the process to amend city ordinance 911. Council Member Smith moved to add City Ordinance 911 to the August 16th City Council Meeting Agenda for further discussion and to possibly amend Ordinance 911; Council Member Benfield seconded the motion; Mayor Merrill asked for a vote: Those voting aye Those voting nay Council President Smith None Council Member Flora Council Member Benfield Council Member Mann Council Member Wolfe The motion carried Adjournment 7:44 APPROVED: ____________________________ Jerry Merrill, Mayor Attest: _______________________________ Marianna Gonzalez, Deputy City Clerk