NUMB:
970492
VERS:
ORIGINAL
REF:
XXBY:
ALD. BUTLER
TITL:
An ordinance regulating the use of immobilization devices to enforce motor vehicle parking restrictions.
SECS:
81-80.5 cr
105-63 rc
320-17 cr
ANLS:
- Analysis -
1995 Wisconsin Act 434 prohibits the use of boots to enforce parking restrictions unless there is a local boot ordinance that conforms to the requirements set forth in the statute by July 1, 1997. This ordinance revises the current boot regulations to include the local regulations required by Act 434. The ordinance regulates the use of boots as follows:
1. Any parking enforcer, business or individual, that uses the boot must have a Milwaukee parking enforcer license issued by the city clerk. An applicant that submits a proper application with insurance and the license fee shall be issued a license. The license year runs from April 1 to March 30. The fee for a parking enforcer-business license is $100 for the 1997-98 license year, which runs from the effective date of the ordinance to March 30. The annual fee for a parking enforcer-business license will be $150 after the 1997-98 license year. The annual fee for a parking enforcer-individual license is $10.
2. Each license applicant, individual and business, must be insured by an insurance policy covering at least $1,000,000 in bodily injury and property damage arising from each use of the boot.
3. The ordinance creates an immobilization device appeals board to hear appeals of booting incidents and removal fees. The 3 board members are appointed by the mayor, the commissioner of public works and the city clerk. The mayor's appointee represents the business community and the city clerk's appointee serves as board chair.
4. The ordinance retains the current requirement that signs be posted at each vehicular entrance to parking areas that use the boot, but stipulates that the owner or operator of the parking area is responsible for posting and maintaining the signs. The ordinance requires an additional sign for every 10 parking spaces. The current ordinance's "grandfather" clause for the content of some signs is deleted.
5. A parking enforcer must remove a boot if a driver pays the removal fee or signs a deferral agreement promising to either pay the fee or appeal the booting within 14 days. A boot removal fee cannot exceed $70.
6. A parking enforcer must place a written notice on each booted vehicle, indicating that the driver may either pay or sign a deferral agreement to have a boot removed and listing a telephone number to call for boot removal.
7. Before removing a boot, a parking enforcer shall prominently display a photo identification that identifies him or her as a parking enforcer. The parking enforcer shall inform the driver orally and in writing that the driver may either pay a removal fee or sign a deferral agreement, may contest the booting and any legal action to collect the removal fee and may appeal the booting to the immobilization device appeals board. The driver shall also be informed that, if the driver signs a deferral agreement and does not comply with it, he or she must pay the removal fee, collection costs and an additional $70.
8. A parking enforcer that boots a vehicle that is not improperly parked shall refund the removal fee and pay the vehicle owner an additional amount equal to the removal fee.
9. The ordinance retains the current requirements that boot removal must be made without undue delay and not more than 60 minutes after a telephone request for removal, that short-term parking areas cannot use the boot unless parking fees can be prepaid, and that the boot cannot be used on city- owned lots unless all spaces are rented by the month. The current $50 to $500 forfeiture for violation is retained.
BODY:
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 81-80.5 of the code is created to read:
81-80.5. Parking Enforcer License. 1. Each parking enforcer license shall be issued for a term as specified in this subsection. The 1997-98 license period shall begin the effective date of this section [city clerk to insert date] and end the following March 30. Each license period after the 1997-98 license period shall be a one-year period which begins April 1 and ends the following March 30.
2. a. The fee for a parking enforcer-business license for the 1997-98 license year shall be $100.
b. The fee for a parking enforcer-business license for any license period after the 1997-98 license period shall be $150.
c. The fee for a parking enforcer-individual license shall be $10 for any license period. (See s. 105-63.)
Part 2. Section 105-63 of the code is repealed and recreated to read:
105-63. Parking Enforcers. 1. DEFINITIONS. In this section:
a. "City-owned parking facility" means a parking structure or surface parking lot that is subject to the provisions of s. 309-61.
b. "Immobilization device" means a boot, implement or device that is designed to restrict the normal movement of a motor vehicle when installed on or attached to the vehicle.
c. "Operator" has the meaning given in s. 340.01(41), Wis. Stats.
d. "Parking area" means an area used for parking that is not on a highway.
e. "Parking enforcer" means a person that enforces restrictions against unauthorized parking. The term includes a person who owns or operates a parking area and any employes or agents of an owner or operator.
f. "Person" means an individual, partnership, firm, association or corporation.
g. "Removal fee" means a fee charged by a parking enforcer to remove an immobilization device and includes any amounts imposed for parking in violation of a restriction against unauthorized parking.
h. "Unauthorized parking" means parking a motor vehicle in a parking area contrary to a sign posted under s. 346.55(4), Wis. Stats.
2. USE OF IMMOBILIZATION DEVICES REGULATED. No person shall use an immobilization device to immobilize a motor vehicle to enforce restrictions against unauthorized parking except in conformity with this section.
3. PARKING ENFORCER LICENSE REQUIRED. a. A parking enforcer shall not use an immobilization device to immobilize a motor vehicle to enforce parking restrictions against unauthorized parking unless the parking enforcer possesses a valid parking enforcer license issued under this subsection.
b. Application for a parking enforcer license shall be made to the city clerk upon forms provided by the city clerk. A corporation, partnership or sole proprietorship engaged in the business of acting as a parking enforcer using immobilization devices shall apply for a parking enforcer-business license. An individual who attaches and removes immobilization devices on behalf of a parking enforcer-business shall apply for a parking enforcer-individual license. Each application for a license shall state:
b-1. The name and address of the applicant.
b-2. If the applicant for a parking enforcer-business license is a partnership, the name and address of each partner, including limited partners. If the applicant is a corporation, the name and address of each officer and director of the corporation and each shareholder of 5 percent or more of the shares.
b-3. If the applicant for a parking enforcer-business license is not an individual, the name of a designated individual who is a resident of the city and is an authorized agent of the applicant. If the applicant is an individual who is not a resident of the city, the name of a designated individual who is a resident of the city and is an authorized agent of the applicant.
b-4. The name and address of the insurer, and its agent, that includes coverage for the applicant under the insurance policy described in par c.
c. Each application shall have attached thereto evidence satisfactory to the city clerk that the applicant is insured by a policy of bodily injury and property damage liability insurance for injury or damage arising from the applicant's use in the city of an immobilization device, in an amount of at least $1,000,000 per use of an immobilization device. Also attached shall be evidence satisfactory to the city clerk that the insurer has agreed to provide notice to the city clerk within 10 days after the insurer makes a determination that the policy shall be suspended, cancelled or not renewed or that the coverage of the policy shall be changed.
d. All applications for parking enforcer-individual licenses shall be submitted by a holder of, or applicant for, a parking enforcer-business license.
e. Each application shall be accompanied by the license fee specified in s. 81-80.5.
f. Upon receipt of a properly completed application, satisfactory evidence of insurance and the license fee, the city clerk shall issue a parking enforcer license to the applicant.
g. A parking enforcer shall notify the city clerk within 10 days after there is any change in the information submitted in an application for a new or renewal parking enforcer license. The holder of a parking enforcer-business license shall submit changed information relating to parking enforcer-individual license holders who attach and remove immobilization devices on behalf of that business.
4. SIGNS POSTED. a. The owner or operator of a parking area in which an immobilization device may be used shall post and maintain a sign at each vehicular entrance to the parking area. The sign shall be prominently posted and maintained so it is clearly visible to any motor vehicle operator who enters and parks in the parking area. At least one additional sign shall be posted for every 10 parking spaces in the parking area. All signs shall be at least 12 inches by 18 inches in size.
b. Each sign shall clearly state all of the following:
b-1. That unauthorized parking is prohibited in the parking area.
b-2. That an immobilization device or "boot" may be attached to any unauthorized vehicle parked in the parking area to enforce restrictions against unauthorized parking.
b-3. Whether a removal fee will be charged to remove an immobilization device and, if so, the amount of the fee.
5. NOTICES ON IMMOBILIZED VEHICLE. Notwithstanding s. 346.94(4), a parking enforcer, at the time of immobilization of a motor vehicle, shall place a written notice in a reasonably secure manner on each immobilized vehicle that clearly states all of the following:
a. The name of the parking enforcer and a telephone number that a person may call to request the removal of the immobilization device.
b. The amount of the removal fee, if any.
c. The terms of the deferral agreement described in sub. 6-d-2.
6. REMOVAL OF IMMOBILIZATION DEVICE. a. A parking enforcer shall have a person available 24 hours a day to take requests for removal of an immobilization device. The person shall be available either on site at the parking area or by telephone at the number listed on the notice described in sub. 5.
b. Whenever a vehicle operator or owner requests removal of an immobilization device, whether in person or by telephone, a parking enforcer shall remove the immobilization device without undue delay. Whenever a request for removal is made by telephone, a parking enforcer shall arrive at the vehicle within 60 minutes after the telephone request.
c. Before removing an immobilization device, a parking enforcer shall do all of the following:
c-1. Display prominently an identification card that identifies that person as a parking enforcer and that contains a photograph of that person.
c-2. Inform the owner, lessee or operator of the motor vehicle, orally and in writing, before removing an immobilization device, of all of the following:
c-2-a. If a removal fee is charged, that the owner, lessee or operator is required either to pay the removal fee or to sign a deferral agreement described in par. d-2.
c-2-b. That a parking enforcer may commence legal action to collect any removal fee that has not been paid within 14 days after the removal of an immobilization device unless an appeal has been filed under sub. 13.
c-2-c. That the owner, lessee or operator of an immobilized motor vehicle may contest the propriety of the use of an immobilization device on his or her motor vehicle or the validity of a removal fee using the process described in sub. 13, and may contest any legal action commenced to collect a removal fee.
c-2-d. That, except for the payment of the removal fee or the signing of a deferral agreement, no person may be required to do anything to have an immobilization device removed.
c-2-e. That, if a parking enforcer uses an immobilization device on a motor vehicle that is not parked in violation of a restriction against unauthorized parking, the owner, lessee or operator shall not be required to pay a removal fee and the parking enforcer shall be liable to the owner or lessee of the motor vehicle for an amount equal to the removal fee.
c-3. Whenever a deferral agreement is signed, the parking enforcer shall provide a copy of the signed deferral agreement to the owner or operator of the motor vehicle.
d. The owner, lessee or operator of a motor vehicle shall be required to do one of the following before an immobilization device may be removed:
d-1. Pay the removal fee.
d-2. Sign a deferral agreement under which the person signing the agreement agrees to pay the removal fee to the parking enforcer or contest the removal fee or the propriety of the use of an immobilization device on his or her motor vehicle, using the process described in sub. 13 within 14 days after the immobilization device is removed.
7. NONCOMPLIANCE WITH DEFERRAL AGREEMENT. Whenever a person signs a deferral agreement and, within 14 days after the removal of the immobilization device, does not either pay the removal fee or appeal to the immobilization device appeals board, the person, within 30 days after the removal of the immobilization device, shall pay to the parking enforcer the removal fee, an additional $70 and any reasonable costs incurred to collect the removal fee.
8. IMPROPER USE OF IMMOBILIZATION DEVICE. Whenever a parking enforcer uses an immobilization device on a motor vehicle that is not parked in violation of a restriction against unauthorized parking, the parking enforcer, within 14 days after the immobilization device is found to have been used improperly, shall refund to the owner of the motor vehicle any removal fee that has been paid and shall pay the owner an additional amount equal to the removal fee.
9. PREPAYMENT FOR SHORT-TERM PARKING. a. A person who is the owner, manager, employe or agent of a private parking facility that offers short-term parking shall not use or permit the use of an immobilization device at that facility unless the prepayment requirements of this subsection, as well as all other requirements of this section, are complied with.
b. Whenever a private parking facility offers daily, hourly, special event or other short-term parking for a duration of less than 24 hours for a fee to the public, a person who is the owner, manager, employe or agent of the private parking facility shall not use or permit the use of an immobilization device on a motor vehicle at the facility unless the facility offers an opportunity for the posted authorized parking fee to be prepaid by means of an honor box, an attendant who collects parking fees and issues claim checks, or in some other appropriate and verifiable manner.
10. CITY-OWNED PARKING FACILITIES. a. Except as provided in par. b., a private contractor that is a lessee or manager under s. 309-61, and any manager, employe or agent of such a private contractor, shall not use or permit the use of an immobilization device in any city-owned parking facility.
b. A city-owned parking lot that is leased to a private contractor under s. 309-61 may use or permit the use of an immobilization device if all parking spaces in the lot are leased for monthly parking only.
11. PROHIBITED PRACTICES. A parking enforcer shall not require a person to transfer any goods, perform any services, or waive any available legal rights or remedies, as a condition for removing an immobilization device, except as specified in sub. 6-d.
12. REMOVAL FEE. A parking enforcer shall not charge a removal fee that exceeds $70.
13. APPEAL. Whenever the owner, lessee or operator of a motor vehicle seeks to contest the propriety of the use of an immobilization device or the amount of a removal fee, he or she may appeal the use or amount to the immobilization device appeals board. An appeal shall made in writing and delivered to the immobilization device appeals board within 14 days after the use of the immobilization device which is being contested. The immobilization device appeals board shall provide a copy of each appeal to the affected parking enforcer business and the city clerk.
14. EXCEPTIONS. a. This section does not apply to any immobilization of a motor vehicle by the police department that is otherwise authorized for the purpose of enforcement of statutes and ordinances.
b. This section does not authorize use of an immobilization device on an emergency vehicle.
c. This section does not authorize use of an immobilization device where otherwise prohibited by law.
15. PENALTY. Any person who violates this section shall forfeit not less than $50 nor more than $500 for each offense, and the costs and disbursements of such action, and in default thereof, shall be imprisoned in the county jail or house of correction for not less than 2 days nor more than 20 days, until such forfeiture costs are paid.
Part 3. Section 320-17 of the code is created to read:
320-17. Immobilization Device Appeals Board. 1. There is created an immobilization device appeals board consisting of the following 3 members:
a. One member appointed by the commissioner of public works.
b. One member appointed by the city clerk and who shall serve as chair of the board.
c. One member appointed by the mayor to represent the business community.
2. The board shall hear and decide appeals, made under s. 105-63-13, which contest the propriety of the use of an immobilization device or the amount of an immobilization device removal fee.
3. The board shall provide a copy of each appeal to the affected parking enforcer-business and to the city clerk.
4. The city clerk shall provide staff assistance to the board.
5. The board shall submit a written report semi-annually on its activities to the common council and the mayor.
LRB:
APPROVED AS TO FORM
____________________________
Legislative Reference Bureau
Date: _____________________
CATT:
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
___________________________________
Office of the City Attorney
Date: _____________________
ZDPT:
DFTR:
LRB97151.4
CAW
6/24/97The board shall submit a written report
semi-annually on its activities to the common council
and the mayor.
LRB:
APPROVED AS TO FORM
____________________________
Legislative Reference Bureau
Date: _____________________
CATT:
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
___________________________________
Office of the City Attorney
Date: _____________________
ZDPT:
DFTR:
LRB97151.4
CAW
6/24/97