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
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