ORDINANCE NO. 7,437-N.S. ADDING A NEW CHAPTER 9.92 TO THE BERKELEY MUNICIPAL CODE REGULATING OFF-STREET PARKING LOTS

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1 ORDINANCE NO. 7,437-N.S. ADDING A NEW CHAPTER 9.92 TO THE BERKELEY MUNICIPAL CODE REGULATING OFF-STREET PARKING LOTS BE IT ORDAINED by the Council of the City of Berkeley as follows: Section 1. as follows: That a new Chapter 9.92 is added to the Berkeley Municipal Code to read Chapter 9.92 OFF-STREET PARKING LOTS Purpose and Applicability Definitions Charging for Parking in Off-Street Parking Lots Requirements - Signs Amount of Parking Charges and Fees Notice of Parking Fees and Additional Parking Charges Prohibited Practices Invalidity Payment Registration of OSPL Operators and Certification of OSPLs Operation of OSPLs Record keeping Reporting Dispute Resolution Refund Violation penalty enforcement Fees Severability Purpose and Applicability A. The City of Berkeley hereby finds and declares that there are privately owned and maintained off street parking facilities within the City that are generally held open for use of the public for purposes of vehicular parking, as defined in Section E. It is the purpose of this Chapter to authorize and regulate such parking facilities consistent with applicable state law. B. This Chapter governs the operation of all Off-Street Parking Lots other than those owned by the City of Berkeley or by agencies not subject to regulation by the City of Berkeley. This Chapter shall not apply to private property not normally used for vehicle parking by the public that is occasionally rented out by the owners or occupants thereof for special events Definitions For purposes of this Chapter, the following terms shall have the following meanings. Ordinance No. 7,437-N.S. Page 1 of 9

2 A. Fee means any fee, charge, penalty or other cost charged to a person who parks a vehicle at an OSPL that is in addition to or other than the Parking Charge. B. "Business Hours" mean the period from one hour before a business is open for customers until the business s closing time for customers. For parking spaces designated for users of automated teller machines, residential tenant or other non-customer reserved parking, "business hours" shall mean 24 hours a day. Business Hours also includes any time an OSPL is used for valet parking with the permission of the business owner. C. City Manager means the City Manager or his or her designee. D. "Notice means a written document that notifies a vehicle driver of a Fee that is due as a result of unauthorized (including overtime) parking in an OSPL. E. "Off-Street Parking Lot" ( OSPL ) means real property that is generally held open to the public for the parking of vehicles at no cost for purposes of shopping or conducting other business at a business or other use that is in full compliance with the Zoning Ordinance and all local tax ordinances. F. Parking Charge means any charge for parking at an OSPL that is paid at the time a vehicle is parked, whether paid at a meter or a pay station or by any other means, that is based on the Posted Rate. G. "Person" means any natural person, firm, company, corporation, partnership, or association. H. Posted Rate means the rate charged for parking at an OSPL that is posted on a sign in compliance with Section B, expressed as dollars per unit of time. I. "Operator" means any person who owns or controls, or person who acts on behalf of or at the behest of a person who owns or controls, an OSPL. In cases where the Operator is not the person who owns or controls the OPSL, the term Operator shall include both the person who owns or controls the OPSL and the person who operates it in his or her behalf. J. Zoning Approval means a Permit as defined in Section 23A or a Zoning Certificate as defined in Section 23B Charging for Parking in Off-Street Parking Lots A. An Operator of an OSPL may charge persons who park in that OSPL as set forth in this Chapter. B. An Operator of an OSPL may not charge persons who park in it during Business Hours and who patronize the business(es) it serves, except that the Operator may charge the Posted Rate and any Fees authorized by this Chapter for the use of surplus parking spaces beyond those required by the Zoning Ordinance or applicable Permit issued under the Zoning Ordinance for the business(es) or other use(s) it serves. C. An Operator of an OSPL may charge persons who park in it after Business Hours the Posted Rate and any Fees authorized by this Chapter, subject to Section D. An Operator may contract with the owner of an OSPL to remove vehicles that are parked there without the consent of the owner, such as vehicles parked in a parking lot reserved for the customers of a business but whose drivers do not patronize that business. In such cases an Operator may not charge for parking, but may recover those towing costs that may be recovered under law. Ordinance No. 7,437-N.S. Page 2 of 9

3 Requirements - Signs In order to charge for parking in an OSPL, the Operator must post signs substantially in the form required by this Section. A. Signs shall contain a statement describing the applicable parking restriction, for example: "Free Parking for XXX Customers Only" "This Space Reserved for XXX" "Parking for Tenants Only" "Pay at Payment Machine when Business is Closed" "Parking Lot Open for Valet Parking Only" B. Signs shall contain a statement with the applicable Fee(s), for example: Parking Fee $ Per Hour. Flat Rate Parking Fee $ "All Unauthorized Vehicles are subject to Towing." C. Signs shall contain a statement with the hours the parking restrictions are in force during which a Fee may be charged, for example: "Parking Fees Charged During All Business Hours" Parking Fees Charged From AM to PM "Reserved Parking Restrictions Enforced 24 Hours A Day" "Pay at Payment Machine when Business is Closed" D. Signs must be posted at each entrance and exit to the OSPL, and must be readily visible and readable from each affected parking space. Where different restrictions apply to parking spaces with common entrances and exits, the restrictions applicable to each space shall be clearly delineated and easily readable from all affected spaces. The sign at each entrance shall include text or a symbol, subject to the approval of the City Manager, indicating that the Operator of the OSPL is permitted by the City to operate the OSPL subject to this Chapter. E. The City Manager may establish uniform sign sizes, colors, sizes of lettering, and other information that may be required on all signs in order to be in compliance with this Section. If the City Manager establishes such criteria, all signs required by this Section shall be brought into compliance within 60 days. The City Manager may authorize signs that vary from the requirements of this Section. F. Signs that indicate that a customer may park without charge shall indicate whether the authorized parking is only for the time the customer is on the premises of an associated business or whether it is for a limited duration of time. In the absence of such a sign, the Operator may not remove a vehicle Amount of Parking Charges and Fees A. No Parking Charge may exceed the Posted Rate for parking, multiplied by the amount of time parked. B. No Fee may be imposed unless expressly authorized by a resolution of the City Council, and may not exceed the cost of any unpaid Parking Charge plus a reasonable Ordinance No. 7,437-N.S. Page 3 of 9

4 amount to defray the cost of preparing and sending the Notice. All Parking Charges and Fees shall be posted on a sign in a manner that complies with Section C. In areas where the City charges for on-street parking, the Posted Rate at an OSPL may not exceed the City s hourly rate for on-street parking during the hours that payment is required for on-street parking. This requirement applies only to OSPLs located on a block where the City charges for on-street parking Notice of Fees A. No Operator may place on any vehicle a Notice that does not contain at the top of the notice in at least 12 point print the words "INVOICE" followed by "PARKING FEE IMPOSED BY [Name of associated business and Operator]" inserting both the name and street address of the Operator and the business whose customers are allowed to use the OSPL during normal business hours. B. No Operator may place on any vehicle a Notice that does not contain in at least 12 point print the listed Berkeley telephone number of the business whose customers are designated to use the customer-only parking in the OSPL and the phone number with area code of the Operator. All Notice-related calls shall be returned no later than 24 hours from the date of the call. C. Every Notice shall end with the legend "This Notice is NOT issued by the City of Berkeley." This provision shall be in at least 12 point print. D. Notices may not display any feature that resembles a City of Berkeley parking citation or display the City of Berkeley faces logo or any other indication that the Notice is from, on behalf of, or sanctioned by the City of Berkeley. Notices shall be clearly distinct from City of Berkeley parking citations, in format and design. No Notice may be issued until its format and design have been approved by the City Manager. E. Every Notice shall state that both the Operator and the owner of the business that the OSPL serves, identified pursuant to subdivision (A), may cancel the Fee at any time for any reason and at their sole discretion. The refusal of an Operator to review a Notice upon request shall void the Fee. No Notice may be submitted to the California Department of Motor Vehicles or any other state agency. F. Every Notice shall provide fair notice of the dispute resolution procedure described in this Chapter Prohibited Practices Invalidity Payment A. The following practices are prohibited and are unfair business practices within the meaning of Business and Professions Code Section Imposing, or a Fee, or issuing or causing to be issued a Notice, or taking any other action directed at collecting any Fee that is not authorized by this Chapter. 2. Imposing a Fee, or issuing or causing to be issued a Notice, or taking any other action directed at collecting a Fee, unless the Operator has received Zoning Approval for operation of the OSPL and is in compliance with this Chapter. 3. Utilizing the Denver boot or other similar device that is attached to the vehicle and that immobilizes the vehicle. 4. Taking any action, directly or indirectly, to collect a Fee other than to seek establishment of the debt in a small claims court or other judicial proceeding. Ordinance No. 7,437-N.S. Page 4 of 9

5 5. Reporting an unpaid Fee to a credit bureau or a collection agency, unless a small claims court or other judicial proceeding has established the debt. 6. Threatening to take any action that is prohibited by this Chapter. 7. Stating or implying, including by omission, that any unpaid Fee will be reported to any agency of the United States or State of California, or that any such agency will take part in or aid in the collection of any unpaid Fee. 8. Paying any employee or independent contractor any compensation that is in any way based on the number of Notices he or she issues. 9. Using or allowing to be used any uniform, insignia or badge that resembles or could be mistaken for any official City of Berkeley uniform, insignia or badge, by any employee or contractor in connection with operation of an OSPL. 10. Using or allowing to be used any insignia or decoration on signs, vehicles or any other equipment or property, that resembles or could be mistaken for any official City of Berkeley insignia or decoration, by any employee or contractor of an Operator in connection with operation of an OSPL. B. Any Notice that is not in compliance with this Chapter shall be invalid. C. Operators must provide a means of payment that allows persons paying Fees to provide only the information that is necessary to payment and proper crediting of the payment, and shall allow payment both through the internet and by check or cash. Operators may not require that any of the following information be provided: the vehicle identification number, a driver s license number, or a social security number Registration of OSPL Operators and Certification of OSPLs A. No person may operate an OPSL as set forth in this Chapter unless he or she has registered with the City of Berkeley. In addition to the information required by this Section, the City Manager may require such other information as may enable the City to determine compliance with this Chapter. B. The registration application shall include: 1. the name, address and telephone number of the Operator, the names, home and business addresses and telephone numbers of each person owning 10% or more of the business, and the City of Berkeley business license number of the business; 2. the name of each Person who owns, leases or otherwise controls the property on which the OSPL will be located, as well as a binding agreement, naming the City as a third party beneficiary, to pay any taxes due under Chapter 7.48 that are not timely paid by the Operator, along with any penalties and interest due on any delinquent taxes; and 3. a list of all employees, agents and contractors of the Operator anticipated to service OSPLs in Berkeley at the time of registration, which list shall be updated this list within thirty days of any change. C. The registration shall also include a list of all OSPLs where the Operator intends to charge for parking under this Chapter, which shall be updated within one month of any OSPL being added or dropped, along with the name, address and telephone number of each contact person or person authorized to resolve disputes for each OSPL. An Operator may not charge for parking at any OSPL that is not registered. D. No OSPL may be operated unless its signage has been approved by the City as being in compliance with this Chapter within the preceding six months. Ordinance No. 7,437-N.S. Page 5 of 9

6 E. Whenever the owner or lessee of the property on which the OSPL is located terminates its permission to operate as an OSPL or changes Operators, the owner or lessee shall notify the City Manager within seven days. F. Registration of an OSPL may be revoked following notice and opportunity for a hearing, if: 1. the Operator or a person acting on the Operator s behalf is found to have violated this Chapter; 2. parking Fees or Additional Parking Charges are found to have been imposed in violation of this Chapter; 3. the Operator or person acting on the Operator s behalf is found to have violated any other City ordinance related to parking or property management or has failed to timely remit or pay all taxes and fees and any other funds due the City, at any time in the preceding 5 years; 4. the signage for the OSPL is found to be out of compliance with this Chapter; or 5. it is found to be violation of this Chapter or any other City ordinance. G. Any Operator aggrieved by a decision of the City under subdivision (E) may, within five business days of receipt of the decision, appeal the decision in writing to the City Manager who shall, following a hearing, affirm, reverse or modify that decision. The decision of the City Manager shall be final. Upon revocation of approval to operate an OSPL, the text or symbol indicating approval of the lot shall be immediately removed and the lot shall cease operation as an OSPL Operation of OSPLs Record keeping Reporting A. Every Operator shall maintain for at least three years a list by OSPL of all Notices issued for each OSPL, the number of Notices contested, the number of Notices dismissed and the number of Notices appealed to an examiner. as well as records of all amounts received, by each OSPL. This information shall be broken down by date, and for each date shall show the time, the parking violation and the license number of the vehicle issued the Notice. Records required by this subdivision or copies of thereof shall be furnished to the City Manager quarterly and shall subject to inspection as set forth in Section B. OSPLs may not operate or be accessible for parking after 10:00 p.m. Sunday through Thursday, and midnight Friday and Saturday. C. Operators shall take all measures necessary to prevent OSPLs from causing detriment to the surrounding area as a result of noise, litter, criminal activity, use of alcohol or drugs, habitation, or any other cause. Violations of this subdivision are subject to abatement under Chapter 23B.64. D. OSPLs shall utilize parking access revenue control systems, parking meters, pay stations or mobile parking payment services that are capable of providing electronic reports of all receipts. Other payment methods must be authorized by the City Manager. E. Operators shall account for receipts of, and remit taxes under Chapter 7.48 for, all Parking Charges and Fees for each OSPL individually, without any deduction for revenue shared with the owner of the property on which the OSPL is located, and shall provide a monthly accounting for each OSPL. Ordinance No. 7,437-N.S. Page 6 of 9

7 F. The Owner(s) of property on which an OSPL is located shall be liable for any taxes due under Chapter 7.48 that are not timely paid by the Operator, along with any penalties and interest due on any delinquent taxes, without prior notice by the City. G. No Operator may remove, tow or impound any vehicle, or take any other action, based upon a failure to pay prior Parking Charges or Fees Dispute Resolution A. Every Operator shall establish a written dispute resolution policy for contested or Fees that complies with this Section and is approved by the City Manager. A copy of the current policy shall be filed with the City Manager. Every such policy shall contain provisions that require the Operator to promptly inform the owner of an OSPL every time a Notice is contested, and that allows the Operator who has issued the Notice or the owner of the OSPL to cancel the Notice and Fee at any time for any reason. B. For a period of 21 calendar days from the issuance (or 14 days of mailing) of a Notice, a person may request an initial review by Operator. The request may be made by telephone, in writing, or in person. There shall be no charge for this review. If, following the initial review, the Operator is satisfied that the Fee is not due, that the registered owner was not responsible for the Fee, or that any other circumstances make cancellation of the Fee appropriate, the Operator shall cancel the Notice. The Operator shall mail the results of the initial review to the person contesting the notice, and, if following that review, cancellation of the Notice does not occur, include a reason for that denial, notification of the ability to request an administrative hearing, and notice of the procedure for waiving prepayment of the parking penalty based upon an inability to pay. C. If the person is dissatisfied with the results of the initial review, the person may request an administrative hearing no later than 21 calendar days following the mailing of the results of the Operator s initial review. The request may be made by telephone, in writing, or in person. The person requesting an administrative hearing shall deposit the amount of the Fee with the Operator. The Operator shall provide a written procedure to allow a person to request an administrative hearing without payment of the Fee upon satisfactory proof of an inability to pay the amount due. Notice of this procedure shall be provided to all persons requesting an administrative hearing. An administrative hearing shall be held within 90 calendar days following the receipt of a request for an administrative hearing, excluding time tolled pursuant to this section. The person requesting the hearing may request one continuance, not to exceed 21 calendar days. D. The administrative hearing process shall include the following: 1. The person requesting a hearing shall have the choice of a hearing by mail or in person. An in-person hearing shall be conducted within the City of Berkeley. 2. If the person requesting a hearing is a minor, that person shall be permitted to appear at a hearing or admit responsibility for the Fee without the necessity of the appointment of a guardian. The Operator may proceed against the minor in the same manner as against an adult. 3. The administrative hearing shall be conducted in accordance with written procedures established by the Operator. The hearing shall provide an independent, objective, fair, and impartial review of contested parking charges. 4. a. The Operator shall contract with an independent third party that is not controlled by an Operator, who shall provide qualified examiners to conduct the Ordinance No. 7,437-N.S. Page 7 of 9

8 administrative hearings. Examiners shall demonstrate those qualifications, training, and objectivity necessary to conduct a fair and impartial review. An examiner shall not be employed, managed, or controlled by a person whose primary duties are as an Operator, parking charge processing, collection, or issuance. The examiner shall be separate and independent from the Fee collection or processing function. An examiner s continued employment, performance evaluation, compensation, and benefits shall not, directly or indirectly, be linked to the amount of Fees upheld or collected by the examiner. b. Examiners shall have a minimum of 20 hours of training. The examiner is responsible for the costs of the training. The Operator may reimburse the examiner for those costs. Training may be provided through: (i) an accredited college or university; (ii) a program conducted by the Commission on Peace Officer Standards and Training; (iii) American Arbitration Association or a similar established organization; or (iv) through any program approved by the Chief of Police, including a program developed and provided by, or for, the City. Training programs may include topics relevant to the administrative hearing, including, but not limited to, applicable laws and regulations, private parking operator procedures, due process, evaluation of evidence, hearing procedures, and effective oral and written communication. Upon the approval of the City Manager, up to 12 hours of relevant experience may be substituted for up to 12 hours of training. In addition, up to eight hours of the training requirements described in this subparagraph may be credited to an individual, at the discretion of the City Manager, based upon training programs or courses described in (i) to (iv), inclusive, that the individual attended within the last five years. 5. The person who issues a Notice shall not be required to participate in an administrative hearing. The Operator shall not be required to produce any evidence other than the Notice or copy thereof and information received from the Department of Motor Vehicles identifying the registered owner of the vehicle. The documentation in proper form shall be prima facie evidence of the charge. 6. The examiner s decision following the administrative hearing may be personally delivered to the person by the examiner or sent by first-class mail. 7. Following a determination by the examiner that a person owes the Fee, the examiner may allow payment of the Fee in installments, or an Operator may allow for deferred payment or allow for payments in installments, if the person provides evidence satisfactory to the examiner or the Operator, as the case may be, of an inability to pay the Fee in full Refund An Operator that collects a Fee in violation of this Chapter shall refund the Fee to the owner of the vehicle, plus interest at the legal rate Violation penalty enforcement A. A violation of this Chapter shall be a misdemeanor but may be charged as an infraction in the discretion of the citing officer. B. A violation of this Chapter shall be subject to administrative citation pursuant to Chapter C. A violation of this Chapter is hereby declared to be a public nuisance subject to the remedies set forth in Chapter Ordinance No. 7,437-N.S. Page 8 of 9

9 Fees The City Council may by resolution adopt fees for the administration, implementation and enforcement of this Chapter Severability If any word, phrase, sentence, part, section, subsection, or other portion of this Chapter, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions of this Chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect. The City Council hereby declares that it would have passed this Chapter, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional. Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Old City Hall, 2134 Martin Luther King Jr. Way. Within fifteen days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation. At a regular meeting of the Council of the City of Berkeley held on September 15, 2015, this Ordinance was passed to print and ordered published by posting by the following vote: Ayes: Noes: Absent: Anderson, Arreguin, Capitelli, Droste, Maio, Moore, Wengraf, Worthington and Bates. None. None. Ordinance No. 7,437-N.S. Page 9 of 9

10 ORDINANCE NO. 7,438-N.S. AMENDING SECTIONS , AND AND ADDING SECTION OF THE BERKELEY MUNICIPAL CODE RELATING TO PARKING OF VEHICLES ON PRIVATE PROPERTY BE IT ORDAINED by the Council of the City of Berkeley as follows: Section 1. as follows: That Section of the Berkeley Municipal Code is amended to read Parking vehicle on private property prohibited when. A. It is unlawful for any person to park a motor vehicle upon any private property, or upon property used for private parking purposes, without the consent of the owner of said property, the person entitled to the possession thereof for the time being, or the authorized agent of either, provided that signs specifying conditions under which parking is permitted shall have been posted at all entrances to such property. Such signs shall substantially in the form set forth below and shall be approved both as to wording and posting by the Police Department. 1. A statement that parking is restricted and to whom it applies: Examples: "Parking for XXX customers only"; "This space reserved for XXX"; "Parking for tenants only"; "No parking in this area"; "Parking by permit holders only"; 2. A statement that violators may be cited: Examples: "Violators may be cited by Berkeley Police"; "Unauthorized vehicles may be cited and may be towed at owner s expense"; 3. A reference to this Municipal Code section: Examples: "Berkeley Municipal Code Section "BMC Section " B. Lettering shall be on a contrasting background and of such size and so placed as to be reasonably visible to all persons entering the private parking area. If the Ordinance No. 7,438-N.S. Page 1 of 3

11 parking area is shared by more than one business or firm, those stalls for the private use by each shall be clearly identified. Section 2. as follows: That Section of the Berkeley Municipal Code is amended to read Removed vehicle--notice to owner Notice to Police. A. Any person referred to in Section who removes a vehicle from private property shall give notice to the owner of the motor vehicle as provided for and required by the Vehicle Code of the state. B. Any person, including any tow truck operator or driver who removes or causes to be removed a vehicle, shall notify the Police Department of the location from which the vehicle was towed, the vehicle license number and description and the place of storage within two (2) hours of removal. C. Any such person shall keep appropriate records of the removal, including the name, address and telephone number of the person authorizing the removal from private property. Section 3. as follows: That Section of the Berkeley Municipal Code is amended to read Liability for wrongful removal of vehicle. If a vehicle removed from such private property was rightfully there, the person or persons who complained of the presence of such vehicle and/or the person or persons, other than members of the Police Department who caused such vehicle to be removed shall be liable for any and all charges for towage, and for caring for and keeping safe such vehicle.. Such person shall also indemnify and hold harmless the City for any liability that may result from the removal of the vehicle. Section 4. follows: That Section of the Berkeley Municipal Code is added to read as No duty.. Nothing in this Chapter shall be construed as placing any requirement upon the Police Department to either patrol such private property for violations or to issue citations or tow vehicles, and no enforcement action shall be taken except upon specific request by an authorized agent, owner or person in lawful possession or control thereof. Section 5. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Old City Hall, 2134 Martin Luther King Jr. Way. Within fifteen days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation. * * * * * * Ordinance No. 7,438-N.S. Page 2 of 3

12 At a regular meeting of the Council of the City of Berkeley held on September 15, 2015, this Ordinance was passed to print and ordered published by posting by the following vote: Ayes: Noes: Absent: Anderson, Arreguin, Capitelli, Droste, Maio, Moore, Wengraf, Worthington and Bates. None. None. Ordinance No. 7,438-N.S. Page 3 of 3