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J?A -/¿ STATE CAN REGULATE VEHICLE TOWS FROM PRIVATE PROPERTY On May 9, the United States Circuit Court of Appeals for the Ninth Circuit issued its opinion in Tillison v. City of San Diego. The court concluded that a state statute regulating the towing of vehicles from private property was valid and could be enforced by local public entities. The case arose when a towing business owner filed a lawsuit seeking to prevent the San Diego Police Department from enforcing Vehicle Code section 22658(1)(1). The statute provides, in part, that a towing company cannot remove a vehicle from private property without first obtaining written authorization from the property owner or lessee, or their employee or agent. Further, the owner or agent had to be present at the time the vehicle was , removed. The business owner argued that the Federal Aviation Administration Authorization Act (FAAAA), which broadly preempts state and local regulation of transportation, preempted the statute. The court disagreed, ruling that the statute was not preempted because the FAAAA specifically exempted from preemption state and local regula- tions concerned with safety. In addition, the court found that the statute in question was enacted to "further the safety of the general public.. The court based its opinion in large part on Assembly Bill 792, which was passed in August 2003. The bill added subsection (m)(2) to section 22658 and states, in part, that subdivision (I) "promot[es] the safety of those persons involved in ordering the removal of the vehicle as well as those persons removing, towing, and storing the vehicle: The court's decision is in line with other circuit court opinions that have addressed similar statutes and found that they are "sufficiently safety-related to come within the exception to federal preemp- tion." The League would like to thank Assistant San Jose City Attorney George Rios for writing a friend- of-the-court brief on behalf of the League. BROWN ACT DOES NOT REQUIRE PUBLIC COMMENT PRIOR TO DETERMINATION TO ADD AGENDA ITEM In Coalition of Labor, Agriculture & Business v. County of Santa Barbara Board of Supervi- sors, the Court of Appeal for the Second District held that the Brown Act does not require a local agency to allow public comment prior to or during its consideration on whether to place an item on the agenda. While the Brown Act serves to encourage public participation in govemment decision-making, "the Legislature has left to the public agency the task of setting its agenda without public comment." The case arose when three county supervi- sors were accused of violating the Brown Act in relation to the timing of a recall election against one of them. Another supervisor made a request to place an item discussing the certification and timing of the recall election on the agenda for the board's regular meeting. However, the three supervisors blocked the item from being placed on the agenda. At the subsequent meeting, it was proposed that the item be discussed as an ex-agenda item. While several members of the public filled out "speaker cards. to address the issue, they were not permitted to speak. The board publicly , discussed whether to allow the proposed ex- agenda item, but the three supervisors voted not to allow the item to be placed on the agenda. The Coalition challenged the board's action in not allowing members of the public to address it on whether an item should be placed on the agenda. In its decision, the court noted that there was no language in the Brown Act to support the Coalition's position. In refusing the Coalition's suggestion to consider the purpose of the Act and infer such a requirement, the court refused, stating "rewriting the Brown Act to add provisions the Legislature omitted would not advance the Legislature's purpose and would be an unwar- ranted intrusion of the judiciary on the legislative branch : Visit the league's Official Website--www.cacities.org PRIORITY FOCUSIPAGE 3