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HomeMy WebLinkAbout06-21-2004 ITEM VIII-A-11CITY OF AGENDA BILL APPROVAL FORM ••' WASHINGTON Agenda Subject Date: Ordinance No. 5859 June 16, 2004 Department: Attachments: Budget Impact: Legal Ordinance No. 5859 & Memo from City Attorney Heid Administrative Recommendation: City Council introduce and adopt Ordinance No. 5859. Background Summary: Ordinance No. 5859 amends Section 10.54.050 of the Auburn City Code relating to motorized foot scooters. Please see the attached memorandum from City Attorney Dan Heid for further background information. The second alternate ordinance (dated June 16 2004) included in the packet reflects changes proposed by the Police Department to clarify the definition of a motorized foot scooter. 01.8 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ! ❑ Building ❑ M&O ❑ Airport ❑ Finance ! ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning ❑ Park Board ❑Public Works ❑ Legal ❑ Police ❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources Action: Committee Approval: ❑Yes ❑No Council Approval: ❑Yes ❑No Call for Public Hearing Referred to Until Tabled Until Councilmember: Cerino Staff: Heid Meeting Date: June 21, 2004 1 Item Number: VIII.A.11 AU , BURN --�, MOIU THAN YOU IMAGINED ORDINANCE NO. 5 8 5 9 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AMENDING SECTION 10.54.050 OF THE AUBURN CITY CODE RELATING TO MOTORIZED FOOT SCOOTERS WHEREAS, Section 46.61.710 of the Revised Code of Washington (RCW) has authorized use of motorized foot scooters upon the highways of the state but allowed for local jurisdictions to limit or otherwise regulate the use of such vehicles; and WHEREAS, the City Council recently adopted its Ordinance No. 5844, adding a new Chapter 10.54 to the Auburn City Code, which Ordinance included provisions seeking to assure that the operators of such devices would be aware of and comply applicable traffic laws - choosing the requirement of either a driver's license or a learner's (instructional) permit as a way to be sure that the operators of such devices reasonably knew the traffic laws with which they were responsible to comply; and WHEREAS, because of concerns voiced by the City's legal department, drawing into question uncertainty about the regulations requiring a driver's license or a learner's (instructional) permit, it was proposed that the language revert back to the prior recommendation, using the age of sixteen as a requirement criteria for operators. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. AMENDMENT TO CITY CODE. That Section 10.54.050 of the Auburn City Code is hereby amended to read as follows: 10.54.050 Requirements for operating motorized foot scooters. A. Minimum age. No motorized foot scooter shall be operated on streets or other public areas not otherwise prohibited by this chapter to motorized foot scooters unless the operator has -a-valid.is at least sixteen Years of age. No operator's license-er ---------------------- Ordinance No. 5859 June 14, 2004 Page 1 of 3 is required from the hingtOR St Department of Licensing to operate a motorized foot scooter. B. Required equipment. The following equipment shall be required whenever a motorized foot scooter is operated on public streets, rights-of-way or other public property within the city: (1) Reflectors required. Pursuant to RCW 46.04(9), a motorized foot scooter must be affixed with visible reflectors of a type approved by the Washington State Patrol. (2) No motorized foot scooter, or similar device shall be operated without a muffler, as required by RCW 46.61.710. ' (3) Handlebars must not exceed shoulders of the rider. (4) Scooter must have a working brake that will enable the operator to make a braked wheel skid on dry, level, clean pavement. (5) Any other equipment required by state or local law. Section 2. IMPLEMENTATION. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. CONSTITUTIONALITY OR INVALIDITY. If any section, subsection, clause, phrase, or sentence of this Ordinance, is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality of the remaining portions of this ordinance, as it is being hereby expressly declared that this ordinance and each section, subsection, clause, phrase, or sentence, hereof would have been prepared, proposed, adopted, and approved and ratified irrespective of the fact that any one or more section, subsection, clause, phrase, or sentence, be declared invalid or unconstitutional. Section 4. EFFECTIVE DATE. This ordinance shall take effect and be in force five (5) days from and after its passage, approval, and publication, as provided by law. INTRODUCED: PASSED: APPROVED: PETER B. LEWIS MAYOR ---------------------- Ordinance No. 5859 June 14, 2004 Page 2 of 3 Attest: Danielle E. Daskam, City Clerk s el B. Heid, City Attorney PUBLISHED: Ordinance No. 5859 June 14, 2004 Page 3 of 3 ORDINANCE NO. 5 8 5 9 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AMENDING SECTIONS 10.54.010 and 10.54.050 OF THE AUBURN CITY CODE RELATING TO MOTORIZED FOOT SCOOTERS WHEREAS, Section 46.61.710 of the Revised Code of Washington (RCW) has authorized use of motorized foot scooters upon the highways of the state but allowed for local jurisdictions to limit or otherwise regulate the use of such vehicles; and WHEREAS, the City Council recently adopted its Ordinance No. 5844, adding a new Chapter 10.54 to the Auburn City Code, which Ordinance included provisions seeking to assure that the operators of such devices would be aware of and comply applicable traffic laws — choosing the requirement of either a driver's license or a learner's (instructional) permit as a way to be sure that the operators of such devices reasonably knew the traffic laws with which they were responsible to comply; and WHEREAS, because of concerns voiced by the City's legal department, drawing into question uncertainty about the regulations requiring a driver's license or a learner's (instructional) permit, it was proposed that the language revert back to the prior recommendation, using the age of sixteen as a requirement criteria for operators; and WHEREAS, it is also helpful to clarify the definitions of similar devices and vehicles, per state law. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. AMENDMENT TO CITY CODE. That Section 10.54.010 of the Auburn City Code is hereby amended to read as follows 10.54.010 Motorized foot scooter defined. A. "Motorized foot scooter" is defined as a device with two or more ten -inch or smaller diameter wheels that has handlebars, is designed to be stood Ordinance No. 5859 June 16, 2004 Page 1 of 3 or sat upon by the operator, and is powered by an internal combustion engine or electric motor that is capable of propelling the device with or without human propulsion. It is provided, however, that the regulations of this chapter shall not apply to any vehicle used by a disabled person as defined by RCW 46.16.381. B For purposes of this section, a motor -driven cycle, a moped, an electric -assisted bicycle, and a motorcycle, as defined in state law, are not motorized foot scooters. Section 2. AMENDMENT TO CITY CODE. That Section 10.54.050 of the Auburn City Code is hereby amended to read as follows: 10.54.050 Requirements for operating motorized foot scooters. A Opera+�to,'s—License—or InStFUGtion perm,+Minimum age. No motorized foot scooter shall be operated on streets or other public areas not otherwise prohibited by this chapter to motorized foot scooters unless the operator has ,a vafidis at least sixteen years of age. No operator's license -of % n6tFUGtion permit issued by is required from the Washington State Department of Licensing to operate a motorized foot scooter. B. Required equipment. The following equipment shall be required whenever a motorized foot scooter is operated on public streets, rights-of-way or other public property within the city: (1) Reflectors required. Pursuant to RCW 46.04(9), a motorized foot scooter must be affixed with visible reflectors of a type approved by the Washington State Patrol. (2) No motorized foot scooter, or similar device shall be operated without a muffler, as required by RCW 46.61.710. (3) Handlebars must not exceed shoulders of the rider. (4) Scooter must have a working brake that will enable the operator to make a braked wheel skid on dry, level, clean pavement. (5) Any other equipment required by state or local law. Section 3. IMPLEMENTATION. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 4. CONSTITUTIONALITY OR INVALIDITY. If any section, subsection, clause, phrase, or sentence of this Ordinance, is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality of the remaining portions of this ordinance, as it is being hereby expressly declared that this ordinance and each section, subsection, clause, phrase, or sentence, hereof would have been prepared, proposed, adopted, and approved and ratified Ordinance No. 5859 June 16, 2004 Page 2of3 irrespective of the fact that any one or more section, subsection, clause, phrase, or sentence, be declared invalid or unconstitutional. Section 5. EFFECTIVE DATE. This ordinance shall take effect and be in force five (5) days from and after its passage, approval, and publication, as provided by law. INTRODUCED: FMIRM"I APPROVED: PETER B. LEWIS MAYOR Attest: Danielle E. Daskam, City Clerk City Attorney PUBLISHED: ---------------------- Ordinance No. 5859 June 16, 2004 Page 3 of 3 46.20.500. Special endorsement --Exceptions (1) No person may drive either a two -wheeled or a three -wheeled motorcycle, or a motor -driven cycle unless such person has a valid driver's license specially endorsed by the director to enable the holder to drive such vehicles. (2) However, a person sixteen years of age or older, holding a valid driver's license of any class issued by the state of the person's residence, may operate a moped without taking any special examination for the operation of a moped. (3) No driver's license is required for operation of an electric -assisted bicycle if the operator is at least sixteen years of age. Persons under sixteen years of age may not operate an electric -assisted bicycle. (4) No driver's license is required to operate an electric personal assistive mobility device or a power wheelchair. (5) No driver's license is required to operate a motorized foot scooter. Motorized foot scooters may not be operated at any time from a half hour after sunset to a half hour before sunrise without reflectors of a type approved by the state patrol. 46.04.336. Motorized foot scooter "Motorized foot scooter" means a device with no more than two ten- inch or smaller diameter wheels that has handlebars, is designed to be stood or sat upon by the operator, and is powered by an internal combustion engine or electric motor that is capable of propelling the device with or without human propulsion. For purposes of this section, a motor -driven cycle, a moped, an electric - assisted bicycle, or a motorcycle is not a motorized foot scooter. 46.04.304. Moped "Moped" means a motorized device designed to travel with not more than three sixteen -inch or larger diameter wheels in contact with the ground, having fully operative pedals for propulsion by human power, and an electric or a liquid fuel motor with a cylinder displacement not exceeding fifty cubic centimeters which produces no more than two gross brake horsepower (developed by a prime mover, as measured by a brake applied to the driving shaft) that is capable of propelling the device at not more than thirty miles per hour on level ground. The Washington state patrol may approve of and define as a "moped" a vehicle which fails to meet these specific criteria, but which is essentially similar in performance and application to motorized devices which do meet these specific criteria. 46.04.330. Motorcycle "Motorcycle" means a motor vehicle designed to travel on not more than three wheels in contact with the ground, on which the driver rides astride the motor unit or power train and is designed to be steered with a handle bar, but excluding a farm tractor, a power wheelchair, an electric personal assistive mobility device, and a moped. The Washington state patrol may approve of and define as a "motorcycle" a motor vehicle that fails to meet these specific criteria, but that is essentially similar in performance and application to motor vehicles that do meet these specific criteria. MEMORANDUM TO: PETER B. LEWIS, MAYOR CITY COUNCILMEMBERS DANIELLE E. DASKAM, CITY CLERK FROM: DANIEL B. HEID, CITY ATTORNEY DATE; JUNE 14, 2004 SUBJECT: RECOMMENDATION FOR AMENDMENT TO PORTION OF ORDINANCE NO. 5844, MOTORIZED FOOT SCOOTERS NEW ORDINANCE No. 5859 This Memorandum is a follow-up to my memo dated June 10, 2004. After having discussed the matter among other municipal attorneys, the Mayor and Police Chief, it is my recommendation that we amend the recently enacted Ordinance number 5844, to change the requirement provisions of ACC 10.54.050 from a driver's license or instructional permit to the age of the operator being at least 16 years. Background for this recommendation is provided in the June I Oa' memo attached hereto. If you have any questions of me, please let me know. Thank you. MEMORANDUM TO: PETER B. LEWIS, MAYOR CITY COUNCILMEMBERS DANIELLE E. DASKAM, CITY CLERK FROM: DANIEL B. HEID, CITY ATTORNEY DATE: JUNE 10, 2004 SUBJECT: LEGAL ISSUES REGARDING ORDINANCE NO. 5844 MOTORIZED FOOT SCOOTERS The Ordinance as it was moved out of Municipal Services Committee and recommended to the Full City Council on June 7, 2004, and adopted that same day, essentially provided (with changes of that day shown in underline) as follows: ORDINANCE NO.. 5 8 4 4 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, CREATING A NEW CHAPTER 10.54 OF THE AUBURN CITY CODE RELATING TO MOTORIZED FOOT SCOOTERS, AND SIMILAR DEVICES WHEREAS, Section 46.61.710 of the Revised Code of Washington (RCW) has authorized use of motorized foot scooters upon the highways of the state but allowed for local jurisdictions to limit or otherwise regulate the use of such vehicles; and WHEREAS, citizens of Auburn have expressed confusion over where and in what manner motorized foot scooters may lawfully be operated; and WHEREAS, unregulated operation of motorized foot scooters upon the City's streets and sidewalks increases risk of accidental injury to motor scooter operators and other vehicular or pedestrian traffic, and/or damage to property; and WHEREAS, shared use of sidewalks by pedestrian and motorized vehicular traffic increases risk of injury to sidewalk users and reduces the desirability of foot traffic as an alternative to motor vehicle use within the City, which is contrary to the City's stated policy goals, and therefore mixed use by motorized and nonmotorized traffic on sidewalks should be limited as much as is practical; and WHEREAS, RCW 46.61.710 does not establish minimum age or training requirements for operation of a motorized foot scooter, which creates great risk of injury and/or property damage caused by untrained operators and/or youthful operators who lack sufficient judgment to safely operate a motorized vehicle upon public streets; and WHEREAS, it would be appropriate for the City Code to address such issue in its regulation of motorized foot scooters. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: ---------------------- Memorandum — Legal Issues Regarding Ordinance No. 5844 June 10, 2004 Page 1 of 7 Section 1. NEW CHAPTER OF CITY CODE CREATED. That a new Chapter 10.54 of the Auburn City Code is hereby created to read as follows: Chapter 10.54 MOTORIZED FOOT SCOOTERS AND SIMILAR DEVICES Sections: 10.54.010 Motorized foot scooter defined. 10.54.020 Duty to obey traffic -control devices and rules of the road. 10.54.030 Certain uses prohibited. 10.54.040 Prohibited areas. 10.54.050 Requirements for operating motorized foot scooters. 10.54.060 Violations — Penalty. 10.54.010 Motorized foot scooter defined. "Motorized foot scooter" is defined as a device with ne mere than two or more ten -inch or smaller diameter wheels that has handlebars, is designed to be stood or sat upon by the operator, and is powered by an internal combustion engine or electric motor that is capable of propelling the device with or without human propulsion. It is provided, however, that the regulations of this chapter shall not apply to any vehicle I used by disabled person as defined by RCW 46.16.381. 10.54.020 Duty to obey traffic -control devices and rules of the road. A. Any person operating a motorized foot scooter, or similar device shall obey all rules of the road applicable to vehicle or pedestrian traffic, as well as the instructions of official traffic -control signals, signs and other control devices applicable to vehicles, unless otherwise directed by a police officer. B. Additionally, it shall be unlawful to operate a motorized foot scooter or similar device other than as close as practicable to the right-hand curb or right edge of the roadway. C. When preparing for a left turn, the operator shall stop and dismount as close as practicable to the right-hand curb or right edge of the roadway and complete the turn by crossing the roadway on foot, subject to the restrictions placed on pedestrians in Chapter 46.61 RCW. 10.54.030 Certain uses prohibited. A. No motorized foot scooter, or similar device shall be ridden or operated in a negligent or unsafe manner but shall be operated with reasonable regard for the safety of the operator and other persons. For the purposes hereof, to operate in a negligent manner" means the operation of a motorized foot scooter, or similar device in such a manner as to endanger or be likely to endanger any person or property. Examples of operating in a negligent manner include, but are not limited to, failure to obey all traffic -control devices, failure to yield right-of-way to pedestrians and/or vehicular traffic. B. No motorized foot scooter, or similar device shall be operated in a manner that violates the City's noise ordinances (including but not limited to: (1) The frequent, repetitive or continuous sounding of any horn or siren attached to a motor vehicle, except as a warning of danger or as specifically permitted or required by law; (2) The creation of frequent, repetitive or continuous sounds in connection with the starting, operation, repair, rebuilding or testing of any motor vehicle, motorcycle, off-highway vehicle or internal combustion engine within a residential district, so as to unreasonably disturb or interfere with the peace and comfort of owners or occupants of real property; and (3) The squealing, screeching or other such sounds from motor vehicle tires in contact with the ground or other roadway surface because of rapid acceleration, braking or excessive speed around corners or because of such other reason; provided, that sounds which result from actions which are necessary to avoid danger are exempt, as prohibited by § 8.28.010 ACC - Noise control) or any other state or local law. C. No motorized foot scooter, or similar device shall be operated between the times of sunset to sunrise. D. No motorized foot scooter, or similar device shall be operated with any passengers in addition to the operator. E. No motorized foot scooter, or similar device shall be operated without the operator wearing a properly fitted and fastened helmet, that meets or exceeds safety standards adopted by Standard Z-90.4 set by the American National Standards Institute (ANSI). Memorandum — Legal Issues Regarding Ordinance No. 5844 June 10, 2004 Page 2 of 7 10.54.040 Prohibited areas. It is unlawful for any person to operate or ride upon a motorized foot scooter or similar device in any of the following areas: A. Central Business District - including upon any street, alley, sidewalk, park or publicly owned parking lot in the central business district of the city of Auburn as described in Section 18.06.01 0(A)(1 1) of the Auburn City Code and as delineated in the map attached to the ordinance codified in this chapter, marked as Exhibit "A° and incorporated herein by reference. B. Parks, including sidewalks, streets, paths, trails and similar travel ways. C. Sidewalks. D. Streets with a maximum speed limit above 25 miles per hour. 10.54.050 Requirements for operating motorized foot scooters. A. Minimum ageOperator's License or Instruction Permit. No motorized foot scooter shall be operated on streets or other public areas not otherwise prohibited by this chapter to motorized foot scooters unless the operator is has a valid operator's license or instruction permit issued by is-Fequ+red-frer-the Washington State Department of Licensing sseeteF. B. Required equipment. The following equipment shall be required whenever a motorized foot scooter is operated onup blit streets rights-of-way or other public property within the city: (1) Reflectors required. Pursuant to RCW 46.04(9), a motorized foot scooter must be affixed with visible reflectors of a type approved by the Washington State Patrol. (2) No motorized foot scooter, or similar device shall be operated without a muffler, as required by RCW 46.61.710. (3) Handlebars must not exceed shoulders of the rider. (4) Scooter must have a working brake that will enable the operator to make a braked wheel skid on dry, level, clean pavement. (5) Any other equipment required by state or local law. 10.54.060 Violation - Penalty. Violation of the provisions of this chapter is an infraction, subject to penalties in accordance with ACC 1.25.050. Section 2. IMPLEMENTATION. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. CONSTITUTIONALITY OR INVALIDITY. If any section, subsection, clause, phrase, or sentence of this Ordinance, is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality of the remaining portions of this ordinance, as it is being hereby expressly declared that this ordinance and each section, subsection, clause, phrase, or sentence, hereof would have been prepared, proposed, adopted, and approved and ratified irrespective of the fact that any one or more section, subsection, clause, phrase, or sentence, be declared invalid or unconstitutional. Section 4. EFFECTIVE DATE. This ordinance shall take effect and be in force five (5) days from and after its passage, approval, and publication, as provided by law. INTRODUCED: PASSED: APPROVED: PETER B. LEWIS MAYOR ----------------------- Memorandum - Legal Issues Regarding Ordinance No. 5844 June 10, 2004 Page 3 of 7 Attest: Danielle E. Daskam, City Clerk Approved As To Form: Daniel B. Heid, City Attorney PUBLISHED: The Ordinance differed a bit from the state statute, and in that regard, these differences pose a question the answer of which I do not know. The question is whether all of the differences are enforceable or do they jeopardize the validity or enforceability of the Ordinance or parts of it. For instance, the Ordinance uses a different definition than state law — "two or more wheels" — rather than "no more than two wheels (RCW 46.04.336.)." The Ordinance also exempts disabled person vehicles, probably not needed if the vehicle only has two wheels, but that would seem appropriate where the device may have more than two wheels. However, the issue of major concern/uncertainty is the requirement that the operator either have an operator's license or an instruction permit. State law says that no driver's license is required to operate a motorized foot scooter (RCW 46.20.500). However, the same statute says that a person must have a license to drive other vehicles, e.g., a three -wheeled motorcycle. The question that makes this matter more confusing or at least less clear is that the current statue does not include the three -wheeled version of the scooters. Perhaps the three -wheeled version did not arrive until after the statute, but if so, they may fall outside of the regulation of the statutes for motorized foot scooters. Even though the City of Auburn, and cities in general, are creatures of the state, and can exercise only powers delegated to them by the constitution and laws of the State, Article XI, Section 11, of the Constitution grants to cities the power to make and enforce within their limits all such local police, sanitary and other regulations as are not in conflict with general laws. Essentially, that is the key question. Is the Ordinance in conflict with state law, as those terms are defined in the law? Memorandum — Legal Issues Regarding Ordinance No. 5844 June 10, 2004 Page 4 of 7 The City of Auburn is an Optional Code City, organized under Title 35A of the Revised Code of Washington. As such, the law gives the City of Auburn the broadest grant of municipal powers which, according to RCW 35A:01.010 shall be liberally construed in favor of the municipality. See also Shaw Disposal v. Auburn, 15 Wn. App. 65, 546 P.2d 1236 (1976); State v. Edmonds Municipal Court, 27 Wn. App. 762, 621 P.2d 171 (1980); U.S. v. Town of Bonneville, 94 Wn.2d 827, 621 P.2d 127 (1980); Issaquah v. Teleprompter Comer , 93 Wn.2d 567, 611 P.2d 741 (1980). (It is my position and the position of many municipal practitioners that an optional code city's authority is as broad as that of any first class city - or the state itself, except where expressly prohibited or where in conflict with state law.) Additionally, acts of the legislature are presumed to be constitutional. A statute or ordinance should not be declared unconstitutional unless it appears beyond a reasonable doubt to be so. State v. Dixon, 78 Wn.2d 769, 479 P.2d 931 (1971). Also State ex rel Morgan v. Kinnear, 80 Wn.2d 400, 494 P.2d 1362 (1972). This presumption applied to city ordinances too. Municipal ordinances are subject to the same rules of construction as applied to State statutes. Everett v. O'Brien, 31 Wn. App. 319, 461 P.2d 714 (1982); Spokane v. Vaux, 83 Wn.2d 126, 516 P.2d 209 (1973); Spokane v. Carlson, 73 Wn.2d 76, 436 P.2d 454 (1968); Seattle v. Drew, 70 Wn.2d 405, 432 P.2d 522 (1967). Also, the party challenging the constitutionality or validity of an enactment carries the burden of demonstrating its invalidity beyond a reasonable doubt. Bellevue v. State, 92 Wn.2d 717, 600 P.2d 268 (1978). See also State v. Melcher, 33 Wn. App. 357, 655 P.2d 1169 (1982). In fact, in Melcher the court noted, "where legislation tends to promote health, safety, morals or welfare of the public, and the legislation bears a reasonable and substantial relationship to that purpose, ever presumption will be indulged in favor of constitutionality." Certainly an ordinance providing for traffic safety (via motorized foot scooters — as they use public roads) would have to be seen as having a health, safety, morals or public welfare purpose. Therefore, in this regard, every presumption should be indulged in favor of the constitutionality of the City's Ordinance. The law also distinguishes local regulations where the state law "preempts" such regulations (where the state law expressly prohibits city regulation in an area). Again; under Article XI, Section 11, cities have the right to enact ordinances prohibiting the same acts state law prohibits so long as the state enactment was not intended to be exclusive and the city ordinance does not conflict with the general law of the state. Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960); and Nolan v. Snohomish County, 59 Wn. App. 876, 885, 802 P.2d 792 (1990). Thus, the ordinance must yield to a statute on the same subject either if the statute preempts the field, leaving no room for concurrent jurisdiction, Diamond Parking, Inc. v. Memorandum — Legal Issues Regarding Ordinance No. 5844 June 10, 2004 Page 5 of 7 Seattle, 78 Wn.2d 778, 781, 479 P.2d 47 (1971), or if a conflict exists such that the two cannot be harmonized. Spokane v. J -R Distribs., Inc., 90 Wn.2d 722, 730, 585 P.2d 784 (1978). Brown v. Yakima, (supra), 116 Wn.2d at 559. . Preemption occurs when the Legislature states its intention either expressly or by necessary implication to preempt the field. Kennedy v. Seattle, 94 Wn.2d 376, 383-84, 617 P.2d 713 (1980). If the Legislature is silent as to its intent to occupy a given field, the court may look to the purposes of the statute and to the facts and circumstances upon which the statute was intended to operate. Lenci v. Seattle, 63 Wn.2d 664, 669, 388 P.2d 926 (1964). Brown v. Yakima, (supra), 116 Wn.2d at 560. Here, there is nothing that expressly states or that would clearly imply that the provisions of state law are intended to preempt the field regarding Motorized Foot Scooters. Rather, there is an express authority for cities to act in the general area — at least as far as the statute goes. Not only is there no express legislative intent to preempt the field, RCW 46.61.710 states that local governments (cities) may ... prohibit the operation of an Electric Personal Assistive Mobility Device (EPAMD) (which could fit within the same definition of a Motorized Foot Scooter - particularly per Auburn's Ordinance), on public highways within their respective jurisdictions where the speed limit is greater than twenty- five miles per hour. The statute also- allows local regulation of EPAMD's speed in locations with congested pedestrian or nonmotorized traffic and where there is significant speed differential between pedestrians or nonmotorized traffic and EPAMD operators. The statute also allows local government to regulate the operation of an EPAMD within the boundaries of any area used for recreation, etc. Even though regulation of EPAMDs does not translate to Motorized Foot Scooters, there is language in the same statute that does open the door for regulation of them at least for access. However, the authority to regulate speed and areas of operation may not translate to licensing type requirements. I understand that the reason for the proposal in the Municipal Services Committee for the Ordinance to have the operator have an operator's license or an instruction permit was to assure that the operator knew the traffic laws that were to apply. (The prior draft provided an age limitation — sixteen years or more.) That makes sense, and if Melcher controls this . situation, the Ordinance should survive any challenge, if one were leveled. However, it must also be noted that, as indicated in City of Seattle v. Williams, 128 Wn.2d 341, 908 P.2d 359 (1995), that the courts look at whether the local regulation and state law can be harmonized and/or whether one allows something prohibited by the other (conflict). Also, RCW 46.08.020 recites some of the same language about preemption — conflicts of state law with local ordinances — stating that such conflicting ordinances (sections) are invalid. In Williams, a case where the city regulation related to drunk driving, the court said there is a need for such laws to be uniform across the state. Certainly that makes sense, as a person could commit the same offense in a continuing pattern of travel through multiple jurisdictions. And if the question here were "regulation of driver's licenses," I would certainly agree that this is also something that needs to be uniform across the state. Memorandum — Legal Issues Regarding Ordinance No. 5844 June 10, 2004 Page 6 of 7 However, what is involved here may (I respectfully stress may) not be licensing so much as it is regulation of use of motorized foot scooters, something that seems more able to be addressed differently in various jurisdictions. I cannot say how a court would act on questions involving the issues. I have talked to some municipal practitioners and do not have a clear resolution of this matter, other than that there is a question. It should also be noted that the Ordinance has a severability clause, so that if the license language was a problem, it could be culled out without the balance being invalidated. Additionally, the Ordinance could be enforced without dependence on the licensing requirement. However, the absence of that section would leave the Ordinance without any age limitation. Under the current uncertainty, I would suggest that the City refrain from enforcement of the licensing aspect of the Ordinance (just that part of the Ordinance that states that to operate a motorized foot scooter a person shall have an operator's license or instructional permit), until further clarity or resolution can be had. I would prefer to have all questions about an ordinance (or resolution) anticipated ahead of time, so that any questions could be explored ahead of time. To avoid this uncertainty in the future, I would want all councilmembers to feel comfortable to give me or one of the other attorneys in the office a call, to let us know their concerns or suggestions, so we are as prepared as possible. I know that we cannot always anticipate questions that may come up, but where there are areas of concern or questions, it would help us to know them. In this case, it may not have made (may not make) any difference. However, I wish that I had advance notice of the suggestion (acted upon with a motion to include this with requirement — in the Municipal Services Committee) to make a drivers license or instructional permit a requirement for operation of the scooters, rather than just age (sixteen years of age), so that I could have been better prepared to advise council prior to its passage of the Ordinance. However, again, I would suggest that we hold off on enforcing that portion of the City requirements pending a better feel of how the matter shakes out. Memorandum — Legal Issues Regarding Ordinance No. 5844 June 10, 2004 Page 7 of 7