Driving Violations
Associations can impose penalties on members for driving violations of members and their guests and tenants. Associations have the authority to make and enforce rules for common area use provided the rules are reasonable. Adopting a speed limit of 5 mph for streets would likely be unenforceable as unreasonable but might be suitable for alleyways.
Fines and Suspensions. The penalties imposed on those who violate the association's vehicle rules include fines and the temporary suspension of driving privileges. Just as the state can suspend driving privileges on public streets and highways, associations can suspend driving privileges on its private streets. Associations cannot suspend ingress and egress rights, i.e., the association cannot block a member from getting to their property. However, the association can regulate how they get to their property. In other words, the member can walk, ride a bicycle or take a taxi to get to their property but cannot drive a car on the association's streets during the time of the suspension.
Flashing Lights & Tickets. Although California has not yet addressed whether homeowner associations can ticket persons for speeding on their streets, Illinois has.The Supreme Court of Illinois ruled that associations can (i) stop drivers and issue tickets for violating the association's traffic rules, (ii) use amber flashing lights on security vehicles, and (iii) not be liable for false imprisonment when pulling over vehicles on their private streets, provided they have a strong and honest suspicion the person violated the association's rules. The Illinois court wrote “We can discern no logic in allowing a private homeowners association to construct and maintain private roadways, but not allowing the association to implement and enforce traffic laws on those roadways.” I believe that California courts would (and should) reach a similar decision. (Poris v. Lake Holiday POA.) Based on the court's discussion and reasoning, associations should:
- Not attempt to enforce the Vehicle Code. Instead, associations should adopt and enforce their own traffic rules. So as to avoid the impression that the Vehicle Code is being enforced, security personnel should issue a "Rules Violation Notice" instead of a "Speeding Ticket."
- Ensure that if their security officers ticket a member's guest, the member is responsible for the fine not the guest.
- Ensure that if a security officer stops a person who is neither a member nor invitee of a member, a warning is given not a ticket.
Enforcing Vehicle Codes. Associations can hire private security officers to patrol the association's streets and issue tickets. However, boards should be careful about obligating the association to enforcement of California's Vehicle Codes. Security companies are not trained or equipped to handle the enforcement of state laws. There is more to the Vehicle Code than speed limits and stop signs. Registration, license requirements, vehicle safety and a host of driving and safety issues are included in the obligations assumed by such boards. Telling the community that the association enforces the Vehicle Code and then failure to do so could result in liability for the association. The best policy is to adopt specific rules to fit the association’s needs. The rules should be reasonable and connected to the association’s role in maintaining and governing the common areas. The board can and should adopt rules about speeding, stop signs, parking, and the like. It is much easier and less risky for security companies to enforce a limited set of rules than to enforce the State's Vehicle Code.
Speed Bumps
Speed bumps are asphalt mounds constructed on streets for the purpose of slowing down traffic. Some argue the installation of speed bumps is a capital improvement, i.e., the addition of a component that did not previously exist. As such, their installation cannot be funded from reserves since reserve monies are set aside for existing common area components.
Funding from Reserves. However, private streets are existing reserve items and should include safety features such as reflectors, striping, signage and the like. These are components that legitimately fall within the discretion of the board of directors. If the cost to install speed bumps is reasonable, it could justifiably come from street reserves. If the cost is significant and reserves are insufficient, it would require a special assessment to pay for the installation of speed bumps. If a safety concern can reasonably be demonstrated and the cost to install is a small percentage of the street funds, I suspect a judge would side with the board on using reserve funds for that purpose.
Fire Department. Before installing speed bumps, associations should contact appropriate fire authorities. They have jurisdiction over their installation since it may affect their response time to a fire. They may require particular size, placement, signage and striping.
Insurance. An association's existing insurance should cover any injuries or damage related to the speed bumps. At the time of this writing, Farmers Insurance covers an association that gets sued due to an accident related to speed bumps, regardless if the speed bumps were present at the time the policy was written or installed subsequent to policy inception. Under their policy, boards do not need to make changes to the policy in order to be covered. Boards should notify the association's insurance agent of the installation to make sure they are covered and to find out if the insurance carrier has guidelines about how the speed bumps should be marked so as to minimize risk. For example, Farmers provides a Loss Control Guide that property managers and directors can use when evaluating potential hazards on the property. It includes a checklist that asks if speed bumps are installed in necessary areas and painted a contrasting color so that they are clearly visible to drivers.
Fire Lanes
Associations may give written general authorizations to companies to tow any vehicle unlawfully parked within 15 feet of a fire hydrant or in a fire lane, or in a manner which interferes with an entrance to, or exit from, the property. (Veh. Code § 22658; Veh. Code § 22953.) Fire lanes must be properly marked. If the fire lane is not on public streets, i.e., it is association controlled, the board can tow vehicles without further notice and without specifically authorizing each tow (provided the association has complied with all statutory requirements). Boards should check with their local fire departments for requirements in their areas. Following are sample guidelines for marking fire lanes:
- Curbs. Curb top and side shall be painted red, and the words, "FIRE LANE" shall be stenciled on the top and side of all red curbs at a maximum interval of 50 feet. Letters shall be three inches (3") in height with a minimum 3/4-inch in stroke.
- No Curbs. If the fire lane has no curbing, a 12-inch wide red stripe with the words "FIRE LANE" in white shall be painted along and parallel with the edge of the fire lane. The lettering shall be 8-inches high with a 3/4-inch stroke.
- Signage. Signs must be 12-inches wide and 18-inches high, and read: "NO STOPPING - FIRE LANE" Lettering shall be not less than one-inch in height and clearly visible from a vehicle. Signs shall be at a height of 80 inches and unobstructed by foliage.
Disabled Vehicles
Prohibiting the storage of inoperable vehicles is common in HOA Rules & Regulations. This rule was challenged by an owner whose disabled car, which sat in his parking space for four years, was towed. The owner sued and lost. He then appealed and lost. The Court of Appeals found nothing unreasonable about prohibiting the open, long-term parking of disabled vehicles. The Court ruled that associations are "perfectly reasonable in prohibiting this unsightly intrusion upon the aesthetics of their common interest development.” (Sui v. Price.) Moreover, associations may employ towing as a means for enforcing parking rules since towing is specifically authorized by law. (Vehicle Code section 22658(a).) Before using towing as a means of parking enforcement, associations must first establish proper signage on the property and follow the procedures required by the statute.
Parking Violations
Associations cannot use devices to immobilize a vehicle such as wheel clamps and barnacles. In an August 12, 2004 Opinion, California's Attorney General decided that immobilizing a vehicle would be considered "tampering" under the general prohibition found in Vehicle Code § 10852. In the AG's opinion, placing a sign at the entrance to a parking lot describing the booting of vehicles would not be sufficient to protect against a tampering violation. The Barnacle is a device attached to the windshield of a vehicle, obscuring the driver's side view, making driving the vehicle dangerous and illegal, effectively immobilizing the vehicle. The Barnacle is secured to the windshield and, once engaged, sounds an alarm if the vehicle is moved or the device is tampered with. "A "boot," or "Denver boot," is a large metal clamp that attaches to a vehicle's wheel, preventing the vehicle from being driven. Recommendation: Because immobilizing a vehicle as prohibited under Vehicle Code § 22651.7(b), boards should work with legal counsel to establish proper signage and rules for towing vehicles.
Towing Vehicles
Beginning January 1, 2007, the Vehicle Code was changed so that associations may tow vehicles for parking violations only if at least one of the following conditions has been met:
- appropriate signage has been posted;
- the vehicle has been issued a notice of parking violation and 96 hours have elapsed since the issuance of that notice;
- the vehicle is inoperable and the local traffic enforcement agency has been notified at least 24 hours prior to towing; or
- the property upon which the vehicle is parked is improved with a single-family dwelling.
Towing Signs. As provided for in Vehicle Code § 22658(a)(1), associations may tow vehicles, without first issuing parking violations, if they install proper signage. Signage at the entrances of developments must meet the following requirements:
- In plain view at all entrances to the property,
- Not less than 17 inches by 22 inches in size, with lettering not less than 1 inch in height,
- Stating that public parking is prohibited and unauthorized vehicles will be towed at owner's expense,
- Providing the telephone number of the local traffic enforcement agency, and
- Providing the name and number of each company party to towing agreement with the association.
Towing Agreements. Associations should enter into written agreements with one or more towing companies (which must be listed on the towing signs) requiring them to comply with the requirements of the Vehicle Code, including:
- providing notice to the local traffic enforcement agency within 1 hour of receiving authorization by the association to tow a vehicle;
- immediately giving notice to the owner of the vehicle of the towing, the grounds for the removal, and the place to which the vehicle has towed; and
- providing a copy of the notice to the proprietor of the facility (such facilities must be within a 10-mile radius of where the vehicle was removed), if the vehicle is stored in a storage facility.
Specific Authorization. Except as noted below, each time a vehicle is towed (i) the association must provide a specific signed authorization to the towing company and (ii) a representative of the association must be present when the vehicle is towed. The towing request must contain the following information:
- the make, model, vehicle identification number, and license plate number of the removed vehicle;
- the name, signature, job title, residential or business address and working telephone number of the person authorizing the removal of the vehicle;
- the grounds for the removal of the vehicle;
- the time when the vehicle was first observed parked at the private property; and
- the time that authorization to tow the vehicle was given.
Exceptions to Specific Authorization. Associations may give written general authorizations to companies to tow any vehicle unlawfully parked within 15 feet of a fire hydrant or in a fire lane, or in a manner which interferes with an entrance to, or exit from, the property.
Guest Parking. Associations may tow from common area guest parking spaces, provided the parking areas are properly marked and appropriate signage is posted at all entrances to the development.
Handicap Parking. Any time an association needs to tow vehicles from handicap parking spaces, they need to ensure that their signage and procedures comply with Vehicle Code § 22511.8.
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