HomeMy WebLinkAbout1993-235RESOLUTION NO. 93-235
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
RISK MANAGEMENT DEPARTMENT TO PROVIDE AN IMPARTIAL HEARING
OFFICER FOR THE REVIEW OF CONTESTED PARKING VIOLATIONS, IN
ACCORDANCE WITH AB 408.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Risk Management Department is authoi'ized to
provide an impartial Hearing Officer for the review of contested parking
violations, in accordance with AB 408, a copy of which is attached hereto,
marked Exhibit "A" and incorporated herein by referenced as fully as
though set forth at length.
11 SECTION 2. Assembly Bill 408 will become effective July 01, 1993.
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By January 01, 1994 the agencies must assume responsibility for parking
citation processing and fully implement a parking citation hearing examiner
program.
The Facilities Management Division desires to implement AB 408
July 01, 1993.
I HEREBY CERTIFY that the foregoing resolution was duly adopted
by the Mayor and Common Council of the City of San Bernardino at a
regular meeting thereof, held on the 6th day of Julv
,1993, by the
following vote, to wit:
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RES 93-235
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
RISK MANAGEMENT DEPARTMENT TO PROVIDE AN IMPARTIAL HEARING
2 OFFICER FOR THE REVIEW OF CONTESTED PARKING VIOLATIONS. IN
ACCORDANCE WITH AB 408.
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4 COUNCILMEMBERS
5 NEGRETE
6 CURLIN
AYES
NAYS
ABSTAIN
ABSENT
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7 HERNANDEZ
8 OBERHELMAN
9 OFFICE VACANT
10 POPE-LUDLAM
11 MILLER
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The foregoing resolution is hereby approved thi:R.~ day of
1993.
July
.-1~jv~-y~
'])'om Minor. Mayor
City of San Bernardino
Approved as to form
19 and legal content:
20 JAMES F. PENMAN
City torney
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RES 93-215
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c'l.fflt3IT '
CaUfon1a ltat. a..ablJ' 1111 401
1"2 Leg1.lat1.. 1...lOG
BmDIAR1'
The Governor recently Bigned into law Assembly Bill 408 which
decriminalizes parking citations, removes parking citation
processing from the courts, and establishes a system of
administra.tive adjudication for these offenses. Decriminalization
of parking citations will canplete the departure of parking
citations from the criminal justice system. It will replace the
present costly and ineffective threats of criminal prosecution for
unpaid parking citations with a combination of DMV registration
collections and a streamlined civil judgements process.
Administrative adjudication will replace the canplex criminal court
process with procedures that require a no-charge review of
citations by tbe parking agency, offer a mail-in or personal
conference witb a bearing e.y,n"iner, and permit a final review by a
civil court. Under tbis system, parking enforcement officers will
not have to appear for bearings on contested citations.
AS 408 will become effectiveJulv 1. 1993. The legislation
requires that by January 1, 1994 most parking agencies shall assume
responsibility for parking citation processing and that all parking
agencies fully implement a parking citation bearing e.Y1I",i ner
program. Between July 1,.1993 and implementation of tbe hearing
examiner program, but not later than January 1, 1994, tbe court is
required to provide tbe bearing e."""'iner reviews. The legislation
includes revisions in tbe ""'"dated distribution of ~rki~g citation
revenue.
POSSIBLE ORGDID.'1'IOR PLUl
Establishing the parking citation hearing program will be a canplex
effort that, as mandated by state law, must be canpleted by January
1, 1994. A highly qualified and experienced administrative staff
will be needed to lead tbe implementation effort. A preliminary
list of implementation tasks is as follows:
If parking citations are being processed by a court, develop
plans to transfer responsibility for citation processing from
the court to the processing agency;
Develop detailed organizational and budget plans for this new
program. It is anticipated that the hearing examiner program
will require *** (to be determined by tbe parking agency) new
positions;
Prepare detailed policies and procedures for tbe hearing
examiners to follow when conducting hearings;
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Develop and iqllement pl&Dll to locate beadng ofUce. in
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Prepare detailed plaD8 to coordinate tbe headng examiner
program with the .aWniBtrative review. procedure that IllUst
be provided for parking citation complaints before a hearing
examiner review i. permitted:
Work clo.ely with parking citation processor, to develop and
implement the computer systems and organizational and policy
changes reauire" to support the headng examiner program.
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Implementation of the headng p'Ami ner program in the department
responsible for citation iBsuance would retain within that
department the necessary coordination of effort between the
citation processing, the required aWniBtrative review, and the
new hearing e7Aminer program. However, the organizational approach
may vary by judsdiction in order to reflect the policies goals of
each organization.
aBVDnJB AJIID OPDA'1'ICDlS
'1'0 provide the financial resources to support the hearing examiner
program, many parking agencies will be able to retain a portion of
the parking citation revenue that they previously paid to a Count
Rursuant to Section 1463.009 of the Penal Code. 408 re ale
CSectlon 1463.00~ The increased revenue will begin accru ng to
parking agencies on July 1, 1993 even if their hearing examiner
program is Dot yet operational.
AB 408 also modified Penal Code Section 1463.28. This section
permits certain named counties to retain parking penalty increases
if a county opted into the program and increased parking penal ties
after September, 1988. AB 408 does not repeal this section.
However, it does place a July 1, 1992 cap on the dollar amounts
paid to a county. ThiB change is discussed in more detail under
Section 10.2 of the bill which is explained later in this paper.
There are other revenue benefits that will likely accrue to parking
agencies,l-u a result of ,AB 408. Because parking enforcement
officers will no lon~r have to appear in court~ additional
productive hours will be available for parking enforcement. It is
1 anticipated that enhanced collection procedures permitted by .the
civil judgement process may further improve the citation collection
rate. Also, the parking penalties, fees, and charges are all set
by the governing body of the jurisdiction. This increased control
could lead to increased revenue.
U 408 DrnTUI
AB 408 vas authored by Assemblyman Bob Epple and sponsored by the
California Public Parking Association. It vas actively supported
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" by the City of Loa Angelea, the State Judidal CouDcU, Loa Angeles
County Municipal Court, the AutCllllObUe Club, and IIIOst ciUes and
counties throughout the atate.
D 408 extenaively reviBes most of the California Vehicle Code
provisiODB that relate to the iBsuing, procesaing and collection of
parking citatioDB. A detaUed review of the changes, organized by
the sectioDB ~f the legislation, follows:
Section 1
Legislative Findings and Declarations
Section 2
Repealed Penal Code Section 1462.3 which pertained to parking
citation revenue distributioDB for state colleges and universities.
Section 3
Repealed Penal Code Section 1463.009 which IIlllDdated by statute
parking citation revenue distributioDB throughout the state.
Section 4
Amended Penal Code Section 1463.28, which pertains to the
distribution of -bail increases- in certain listed counties. The
amendment states that PC 1463.28 does not apply to the collection
of parking fines .BXCBPT as provided in evc 40200.3 and 40200.4.
These sectioDB are discussed in detail below.
Section 5 and 6
Incompletely revises the hearing process for booted and towed
scofflaw vehicles. At the present time, evc 22651 (i) requires that
a hearing on a vehicle towed for unpaid parking citations be held
before a judge. However, evc .22651.7 requires that the hearing for
a booted vehicle be held before a hearing eplmi ner. It was the
intent that all parking hearings would be held before hearing
examiners. . CPPA and Judicial Council are already working on
legislation to correct this problem.
Section 7
evc 40200 (a) provides that any violation of any regulation
governing the standing or parking of a vehicle is subject to a
civil penalty and that the enforcement of the penalties shall be
governed by the administrative procedures set forth in Article 3 of
the Vehicle Code. As civil matters, the parking agency does not
have to meet the very high burden of proof requirements necess~ry
for criminal violatioDB. Civil matters do not have to deal with
the complex legal issues that are part of any criminal case.
evc 40200(b) provides that, except as provided in Section 40209,
the registered owner and the driver, rentee or lessee, of a vehicle
cited for any ~olatioi of any regulation governing the parking of
a vehicle &rel'-joinUY liable for the parking penalty unless the
owner can show that the vehicle was used without the cODBent of
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that penon, expreaa or bpU.d.
penalty baa the right to recover
rentee or 1.eeee.
AD owner who P&Y8 the parking
the money paid from the driver,
evc 40200(c) provides that the driver of a vehicle who is not the
owner and who uses the vehicle with the express or implied
permission of the owner is considered the agent of the owner to
receive notices of parking violations and may contest the
violation.
Section 8
Repealed evc 40200.1 Piling of Complaint
Section 9
Repealed evc 40200.2 Processing of Notices: Courts
Section 10
Repealed evc 40200.3 Allocation of Parking Penalties: Court Process
Section 10.2
evc 40200.3 (a) provides that all parking penalties collected,
including those from parking citations issued by the Highway Patrol
within the jurisdiction of the parking agency, are retained by the
parking agency WITH THE EXCEPTION of state and local parking
penalty surcharges and that portion of the parJdDg penalty
distributed to counties pursuant to PC 1463.28 attributable to bail
increase effective between September 16, 1988 and July 1, 1992,
Por only those counties identified in PC 1463.28, this distribution
of "bail increases" is capped at the July 1, 1992 level. Any
increases in parking penalties approved by a court after July 1,
1992 are to accrue to the parking agency beginning on July 1, 1993,
the effective date of AS 408..
. evc 40200.3 (b) requires the processing agency to prepare an audited \
report at the end of each fiscal year detailing the activities of
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Section 11
evc 40200.4 (a) requires the processing agency to deposit sums due
the county not later than 45 dayS after the last day of the month
in which the parking penal ty was received.
eve 40200.4 (b) requires that the processing of parking citations be
transferred from courts to issuing agencies not later than January
1, 1994. CBP issued citations are to be processed and the money
collected retained by the parking agency responsible for the
geographic area in which the citations were issued.
evc 40200.4 (c) provides an exception that permits Contra COsta and
San Mateo Counties until June 30, 1996 to transfer the processing
functions if the county or a court was processing parJdDg citations
under contracts with issuing agencies that were in effect on
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January 1, 1t12.
eve 40200.4 (d) requires that San Prancisco MUnicipal eourt
employees be transferred to other equivalent civil service
positions with the transfer of parking citation processing from the
court.
eve 40200.4 (e) protects court employees from termination as a
result of the'transfer of function.
eve 40200.4(f) provides that a .parking penalty. includes, but is
not limited to, any late payment penalty, administrative fee,
assessment, and cost of collection as provided by law.
Section 12
eve 40200.5(a) Permits an issuing agency to contract with the
county, a private vendor, or with any other city or county issuing
agency, other than the Highway Patrol, for the processing of
parking citations. Issuing agencies that contract with a private
vendor shall give special consideration to minority business
enterprise participation.
evc 40200.5(b)
section (a),
revenues.
Requires any contracts entered into pursuant to
above, to provide for DIOnthly distribution of
Section 13
Repeals Section evc 40200.~ Contest of Parking Violation Notice
Section 14 tIr
evc 40200.7 Details the procedures for the Da'l"king citation review
process that replaces the criminal court system. The details are
as follows:
*Bstablishes an administrative review process that
permits a review of the citation by the processing agency
or, at the discretion of the processing agency, an
issuing agency. This review must be requested. by
telephone, mail, or in-person within 21 days of citat10n
issuance o~ 10 days of the, mailing of the Notice of
Delinquent parking Violation;
*If requested within 15 days of the mailing of the
administrative review decision and accarpanied by a
uitten. explanation of the reason for contesting the
violation and the full amount of the ~rkin~ ~lty,
permits a mail-in or in-person review of the c tat on by
a hearing e;rami ner employed by the parking agency.
*The processing agency shall provide an administrative
policy and procedure for contesting notices for persoDS
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who caD provide verifiable and substantial proof of their
inability to deposit the full amount due.
*If a vehicle has been seized for unpaid parking
citatioDB and remains under the control of the agency,
permits the registered owner to contest the citations
without requiring the deposit of the parking penalties.
Section 15 '
eve 40202(a), (b), and (c) continue the existing citation issuance
procedures, the currently required contents of notice of parking
violation, and restrictioDB on changes to citation after issuance.
eve 40202 (d) provides a new procedure for issuing citatioDB during
a drive-A-way situation. The new procedure requires the issuing
officer to file the citation with the processing agency. The
processing agency is to mail a copy of the citation to the
registered OWDe~s of issuance of the citation.
eve 40202 (e) Provides that the issuing officer may recommend in
writing to the processing agency the cancellation of a citation in
the interest of justice. The recOlllD\endation IllUst cite the reasoDS
for the cancellation.
eve 40202 (f) the processing agency IllUst make a finding that there
are grounds for cancellation, enter the finding on the record, and
then may cancel the citation.
eve 40202 (g) provides that personal relationships may not be
grounds for cancellation.
Section 16
eve 40203.5 (a) the schedule of parking penalties, late fees,
administrative fees, and other related charges are established by
the governing body of the issuing agency. To the extent possible,
issuing agencies within the county shall standardize parking
penalties. . , .
eve 40203.5 (b) provides that parking penalties shall be collected
as civil penalties. '-
Section 17
eve 40204 provides that
proceedings terminate.
Section 18
'CYe 40205 requires that citatioDB shall be contested pursuant to
eve 40215.
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when the parking penalty is paid, the
Section 19
eve 40206 (a) provides that if the payment of the parking penalty
is not received .by the date fixed on the notice of parking
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violation, the notice of delinquent violation is to be sent to the
registered owner.
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eve 40206 (b) permits the delivery of the notice of delinquent
parking violation by personal seIVice or first-class mail addressed
to the registered owner, as shown on records of the Department of
Motor Vehicles.
Section 20
eve 40206.5(a) requires that a copy of parking citation be provided
to any person who has received a notice of delinquent parking
violation, or his or her agent, within 15 days of receiving the
request. Continued collection efforts for the citation pursuant to
eve 22651(i), 22651.7, and 40220 are temporarily suspended until
the copy is mailed or otherwise provided.
eve 40206.5 (b) provides that if the description of the vehicle
cited does not substantially match the registration information,
the citation shall be cancelled upon written request of the person.
eve 40206.5(c) states that a copy of the citation may be
photostatic or an electronically produced facsimile.
Section.21
eve 40207 provides that the Notice of Delinquent parking violation
continue to provide the currently required infoImation and include
a statement that payment made to the processing agency within 10
days of the mailing of the notice shall be' the amount of the
original parking penalty without any additional fees or charges.
Section 22
eve 40209 provides that rental and leasing companies may transfer
responsibility for citations to their customers if the processing
agency is provided within 30 days of the mailing of the notice of
delinquent parking violation proof of a written lease or rental
agreement between a bona fide rental or leasing company and its
customer which identifies the name, address and driver's license
number of the customer. The processing agency may seIVe or mail a
notice of delinquent parking violation to the rentee or lessee
identified. If payment is not received within 15 days of the
mailing, the processing agency may proceed against the rentee or
lessee pursuant to eve 40220.
Section 23
eve 40210 (a) provides that if an affidavit of non liability is
returned with evidence that the registered owner made a bona fide
sale or transfer of the vehicle and has delivered possession of the
vehicle to the purchaser prior to the date of the alleged
violation, the processing agency shall obtain verification from the
DMV the registered owner has complied with eve 5602.
eve 40210(b) provides that if the registered owner complied with
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. eve 5602, the proces81ng agency shall C&Dcel the notice of
delinquent parking violation with respect to the registered ower.
eve 40210 (c) provides that if the reg1etered owner has not cCIllpUed
with eve 5602, the processing agency shall inform the registered
owner that the citation shall be paid in full or contested pursuant
to Section 40200.7. If the registered owner does not cClllply, the
processing agency shall proceed pursuant to eve 40220.
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Section 24
eve 40211(a) provides that the processing agency is to follow the
below detailed procedure when payment for a citation is received by
a person authorized to receive the payment:
1. Deliver a copy of the notice of delinquent parking
violation or an electronically reproduced copy of the citation
information to the person and record the name, address and
driver's license number of the person actually given the copy;
2. Determine whether the notice of delinquent parking
violation has been filed with the DW or if a civil judgement
has been entered. If full payment is received, proceedings
under . evc Article 3 shall terminate. If full payment is
received, no further collection effort is permitted. The
processing agency is required to recall any DW hold or halt
any civil judgement collection for any citation that is paid
in full.
Section 25
Section 40215 of the Vehicle Code iR ~p~Aled. This section had
con~a1ned the criminal cour~ procedures for contesting citations.
Section 26 '
evc 40215 provides detailed procedures for the processing of
contested parking citations. This includes an investigation by the
issuing or the processing agency, administrative review by a
hearing ey.ami ner after the payment of the parking penalty, and
finally, a civil court hearing. The details of th1e section are as
follows:
(a)
1. The processing agency shall either investigate with its
own records and staff or request that the issuing agency
investigate the circumstances of the citation with respect to
/the contestant's written explanation of reasons for contesting
the parking vIOlation. If, based upon the results of the
investigation, the processing agency is satisfied that the
violation did not occur or that the registered owner was not
responsible for the violation, tbe processing agency shall
cancel the notice of parking violation and make an adequate
record of the reasons for canceling the notice. The
processing agency shall mail the results of the investigation
to the person who contested the notice of parking violation or
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the notice of delinquent parking violation.
2. If the person contesting a notice of parking violation or
a notice of delinquent parking violation is not satisfied with
the results of the investigation provided for in paragraph
(1), the person may, within lS days of the mailing of the
results of the investigation, deposit the amount of the
parking ~enalty and request an administrative review.
(b) The
paragraph
following:
1. The person requesting an administrative review shall
indicate to the processing agency his or her election for a
review by mail or pe~sonal conference.
administrative review procedure described in
(2) of subdivision (a) shall consist of the
2. permdts a minor to appear at a hearing or admit
responsibility for a parking violation without the appointment
of a guardian. It permdts the processing agency to proceed
against that person in the same manner as if that person were
an adult.
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3. The administrative review shall. be conducted before an
examiner designated to conduct the review by the i8.sying
agenCY's_g~erni~bQd~ or chief executive officer.
In addition to any other requirements of employment, an
examiner shall demonstrate those qualifications, training, and
objectivity prescribed by the issuing agency's governing body
or chief executive as are necessary and which are consistent
with the duties and responsibilities set forth in this
article. The examiner's continued employment, performance
evaluation, compensation, and benefits shall not be directly
or indirectly linked to the amount of fines collected by the
examiner.
4. The officer or person authorized to issue a notice of
parking violation shall ..11ot be required to participate in an
administrative review. The issuing agency shall not be
required to produce any evi~nce other t~ _ the notice of
parking v~olation or copy't:hereof. and 1nformation recerved
from ~e DepartmenE Of Motor Vehicles identifying the
registered owner of the vehicle. The documentation in proper
form shall be considered pr~ facie evidence of the
violation. '
5 . The review shall be conducted in accordance with the
written procedures established by the posing or processing
agency which shall ensure fair and impartial review of
contested parking violations. The agency's final decision may
be delivered personally to the person by the aYAminer or to
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the penon by fir.t-cla.. _U.
Section 27
eve 40220 provides for collection of unpaid citations by the IlMV or
through the civil judgement process detailed in the section. The
processing agency may only follow one of the below detailed
collection options at a time for an unpaid citation:
a. File an itemization of unpaid parking penalties and
administrative and service fees with the DMV for collection
with the registration of the vehicle pursuant to eve 4'60.
b. If more than $400 dollars in unpaid penalties and fees
bave been accrued, proof thereof may be filed with the court
with the same effect as a civil judgement. Judgements may be
collected as are authorized for the collection of an unpaid
civil judgement entered against a defenlSaDt in an action on a
debtor. The court may assess cosU against the debtor. The
processing agency must send a notice by first-class mail
infoDlling the person or registered owner that a judgement for
unpaid citations, fees, and costs will be entered after 30
days from the mailing of the notice. The notice must advise
tbat execution may be levied against assets, liens may be
placed against property, wages may be garnisheed, and other
steps may be taken to satisfy the judgement. An agency may
contract with a licensed collection agency to collect the
judgement. The processing agency is required to pay the
established first paper civil filing fee at the time an entry
of civil judgment is requested.
c. If the registration of the vehicle has not been renewed
for 60 days beyond the renewal date, and the citation bas not
been collected by the DMV, the processing agency may file
proof of the unpaid penalties and fees with the court with the
/Same effect as a civil judgment as provided in subdivision
(b) .
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Section 28
eve 4022J. pennits filing of a civil judgement, without removing the
DMV hold, if a vehicle registration which lists the outstanding
citations bas not been renewed for 60 days beyond the expiration
date of the vehicle registration.
Section 29
eve 40224 pennits the tolling of time limitations for filing civil
judgements during the time a citation is placed with DMV for
collection.
Section 30
eve 40225 continues past practice of permitting the issuance of
equipnent and eve 5204 registration tabs violations on parking
citation forms and establishes several new procedures for
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processing these violatioDe. The civil penalty for equipment
violatioDe is $30. Upon proof of correction, the penalty is
reduced to $10. The civil penalty for eve 5204 is $60. There is
no provision in this section for a proof of correction. Fifty
percent of the penalties collected for these violations goes to the
state and 50t is retained by the issuing agency. " .
Section 31
eve 40226 is' repealed. This section concerned the deposit of
parking penalties.
Section 32
eve 40230 is repealed. This section concerned the filing of
criminal complaints with a court.
Section 33
eve 40230 details the civil court appeal process to be followed if
the person wishes to contest the citation beyond the hearing
examiner level.
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. a. Within 20 days after the mailing of the final decision of
the hearing examiner, the person may seek review of the
decision by filing an appeal to the Justice or Municipal
court. The case shall be heard de novo (starting from the
beginning) except that the contents of the processing agency's
file in the case shall be received in evidence. A copy of the
notice of parking violation shall be admitted into evidence as
prima facie evidence of the facts stated in the citation. A
copy of the notice of appeal shall be served upon the
processing agency in person or by first class mail by the
contestant.
b. A fee of $25 will be paid to the court by the contestant
for filing the notice of appeal with the court. . If the
contestant prevails in court, the processing agency must
reimburse to the contestant $25 for the filing fee and refund
any parking penalty paid in accordance with the court's
decision.
c. Provides that the appeal is a subordinate judicial duty
which may be performed by traffic trial commissioners and
other subordinate judicial officials at the direction of the
presiding judge of the court.
d. If a notice of appeal of the processing agency's decision
is not filed within the 20 day requirement, the processing
agency's decision is deemed final.
Sections 34, 35, and 36
Deletes all references to parking penalty and parking bail from
eve 40510, 40519, and 40521.
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Section 3'1
Repealed eve 41102.
Section 38
Provides that the provisions of AD 408 become effective July 1,
1993. The transfer of the processing function from a court to a
parking agency must be cCIIlpleted by January 1, 1994. The
implementation of the hearing examiner program may occur at any
time between ~uly 1, 1993 aDd January 1, 1994. During the ttme
between these dates, if an agency has not set up the hearing
examiner program and a persOD wishes to contest a citation, the
court will provide a -hearing ey,mtner- review of the citation.
After July 1, 1993, the crimiual court'. involvement with parking
citations ends and no parking citations, regardless of when they
were issued, may be contested in crimiual court.
Section 39
Provides that AD 408 becomes effective July 1, 1993
Section 40
Provides that no reimbursements frQIII the State Mandates Claim Fund
are authorized pursuant to the Government Code.
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