On The Roadby: Bill Oetinger 4/1/2016
Red Tape Revisited
I rarely devote two columns in a row to the same topic and I have never strung the same issue out over three columns. But there is a first time for everything and this appears to be that time. My February column about the proposed “special event” ordinance in Napa County and my March column about the implementation of that ordinance have sparked a good deal of interest in the bike community. I have received any number of e-mails from other cyclists who are now or have been in leadership roles in other bike clubs or organizations around the Bay Area. Many facts and much opinion have found their way to my in-box, to the point where I feel the need to look at the matter once again. Only this time, a fair bit of the writing will come from my assorted correspondents who have weighed in on this thorny subject. (Quotes from other writers will be in italics.)
There is a wealth of material here, so much of it that, if this column is not going to run on forever, I’m going to have to pass along just a few of the more relevant items. And I’m not going to spend too many pixels on a recap of what this issue is about. If you want that, please check out the previous two articles. But—briefly—the story is about Napa County’s demands that all “special events” go through a fairly onerous and expensive permit process. In this context, we’re mostly talking about pay-to-ride bike events, although the ordinance also applies to running events and other similar activities.
The sticking point that makes this controversial is not the ordinance in general—although it is pretty screwy—but rather the County’s insistence that it be applied to events where it should not be required. For all the complexity of the bill and all the convoluted politics surrounding it, the matter is actually very simple. Any event that requires some form of traffic controls, such as closed roads or police-controlled intersections, will need to have a permit. Any event where the participants—in our case, cyclists—are simply using the public roads as they are intended to be used—without any addtional controls and always in compliance with the vehicile code—should not need a permit. And in fact, Napa County is in violation of the California Vehicle Code if it does try to enforce such a permit process.
The matter was summed up quite well by Michael Graff, until recently a district Board representative for the Califorina Association of Bicycle Organizations (CABO)…
Here's my response about what local governments can (and cannot) regulate. In short, they can regulate road closures and encroachments. But they can't require permits for bicycling on open public roads.
Summary of the express authority to regulate bicycling (in the California Vehicle Code):
1. Section 21200 defines the rights and duties of bicyclists as being the same as drivers of vehicles.
2. Section 21: “Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.”
3. There are no codes providing express authorization of municipalities to regulate cycling on non-freeway roads.
4. Supportive legal opinions & appellate court ruling:
a. Attorney General's opinion: 52 Ops.Cal.Atty.Gen. 313, 314 (1970) cited Wilton v. Henkin (1942), 52 Cal.App.2nd 368, 372 which affirmed the superiority of state legislation for traffic regulation over local ordinances.
b. The court in Flury v. Beeskau (1934) 33 P.2nd 1033, 1036, 139 Cal.App. 398, stated that "A bicycle or motorcycle is recognized as a legitimate means of traveling upon the highways or streets of a city either for business or pleasure. The traffic rules which are prescribed by the California Vehicle Act apply to bicycles and motorcycles as well as to automobiles and other vehicles."
Since the county has no express authority to regulate cycling on non-freeway roads as required by CVC 21, the proposed ordinance is in conflict with the CVC and is unenforceable.
For another view of the same essential question, I turn to Gary Helfrich, the Director of the Sonoma County Bicycle Coalition…
…this issue came up in Sonoma County over 10 years ago. Unlike Napa County, our Board of Supervisors recognized they were pre-empted by state law from requiring special event permits for most of the small to medium-sized bike events in our county. As CABO notes, only events that require road closures, traffic control and/or use the public right-of-way for rest stops, parking, staging areas, etc. can be regulated by local government.
Sonoma County Code is clear that bicycle events are not subject to special event permits. Not sure what they are smoking in Napa, but it's unlikely their ordinance requiring permits for bike events would survive a legal challenge.
Sonoma County Code Sec. 15-24. - Definitions.
"Special event is an organized procession or assemblage of people on a county highway which would significantly impact vehicular traffic or create a safety problem. Examples of special events include but are not limited to walkathons, runs, marathons, trail rides, bicycle races, fairs, celebrations, parades and other similar activities. Bicycle events for which participants are required to comply with the provisions of the California Vehicle Code applicable to persons riding a bicycle upon a highway are not special events for the purposes of the ordinance codified in this article."
Indeed, what are they smoking over in Napa County? Actually, the real question is not what they’re smoking but what they’re thinking. This is such a fundamentally simple issue. You would think the County attorney would advise them that they are in conflict with the CVC (and thus with the State Legislature) and that their ordinance will not stand up to legal challenge. But I suppose, like bureaucrats the world over, they are living in an insulated bubble of their own making, and that within that wonderland, they imagine they can pass any ordinance and throw any loony-tune regulations around…and they’ll get away with it because the poor little citizens who get screwed over in the process will not have the political or legal clout to call them out on it.
As I mentioned in my February column, the current Napa Supes have short memories, as almost exactly this same attempt at ordinance overreach played out in Napa County back in the mid-80’s. It brings to mind the well-known aphorism of philosopher George Santayana: “Those who cannot remember the past are condemmed to repeat it.” In that earlier column, I said I did not have the details of that mid-80’s battle. But now I do. One of the people who responded to my columns was Bob Hillhouse of the Eagle Cycling Club in Napa. He and his wife Mary were the directors of the Tour of Napa Valley, their club’s century ride, when the matter blew up into a very hot-button issue between 1985 and 1987.
That proposed ordinance was eventually taken out back and shot, thanks to a concerted fight from Bob and Mary and their club, with help from CABO and their legal team. And on the advice of County counsel…duh. Mary has gone off the front to the big peloton in the sky, but Bob is still with us and still running Bicycle Works in Napa. We who value the history of bike life in our communities are fortunate to have Bob on our side. He kept very complete records of all the proceedings in that case, including copies of all correspondence between the various politicos, lawyers, bureaucrats, etc. It was of course a paper trail in those days, but Bob scanned all the docs as pdf’s and sent them along to me. It makes great reading! I wish I could pass along every juicy tidbit, but it would be too much for this space. However, if you have a special interest in the matter, get back to me or to Bob. Here is a short note from Bob…
You are mostly correct about the fight in the mid 80’s. My wife Mary and I were the energy behind “rallying the troops,” filling the Supervisor chambers with supporters, hiring big-name local attorneys, and getting huge support from CABO. Mary wrote an ordinance that is still on the books (for another week or two!) that was ultimately unanimously passed by the Supervisors. It stated that bicycling events of more than 50 participants, where they were required to follow the vehicle code, were exempt from the special events ordinance. The only requirements were to name the county as additional insured and to “inform” the public works department at least xx number of weeks before the event. NO permits required, NO fees, NO oversight, of course, etc.
The main force behind the attempt to gain more control was the local CHP area commander, Captain Mike Garver. Shortly after the vote, Garver transferred out of the Napa area. Since then, we have gotten along well with the CHP, until more recently, when they have felt the need to have officers paid overtime to sit in their squad cars.
As the employees at public works change, they are not familiar with the bicycle ordinance and say we have to pay the fees and get the permits. Eagle Cycling Club has over the years gotten really complacent and the club has just gotten the permits and paid the fees, without even a small squeak, even though we don’t have to, thinking it’s not a big deal (don’t make waves). The CHP keeps charging us more. It has driven me crazy, but most of the club just sees it as an easy way out and doesn’t want to fight the fight.
This is just the tip of the iceberg on the treasure trove of historical information Bob has shared with me. As one more example of the goodies in his archive, I’m including an aricle penned by Art Read, the wonderful journalist who used to ply his craft at the late, lamented California Bicyclist magazine. (Astute readers may recall that Read also wrote all the promotional material for the early years of the Terrible Two.) I wish I had space to present the entire transcript of the speech Mary Hillhouse made to the Supervisors in her closing argument over the ordinance in 1987. It’s just about a perfect examination of the issue…a tour de force of spot-on logic and righteous indignation, with a slew of compelling statistics to back it up. But it’s nine full, typed pages. Again, if you want a copy, just ask me or Bob.
I received numerous other notes from folks in bike clubs all around the bay, from Davis to Palo Alto, all of them passing along anecdotes or angst about some similar power-mongering on the part of their local county’s authority figures. There are common threads throughout all their rants: anger directed, in equal portions, at the politicians, the bureaucrats, and the police. The CHP seems to come in for a good dose of venom: lots of stories about clubs feeling forced to employ officers at overtime pay who did next-to nothing for the pay they were pulling down. (See my note in last month’s column about that…similar stories, and enough of them that it seems to indicate a systemic problem.)
In response to all my rants about bureaucrats, one of the notes I received contained a link to this article: The RIse of the Bureaucratic State by James Quinn Wilson. This may seem a bit off-topic, and it certainly contains nothing about biking, but it is relevant in the sense that cycling interests are so constantly over-regulated by misguided, misinformed, implacably entrenched red-tape tanglers…i.e. bureaucrats. It’s a long, dense, dry essay…don’t try to read it on your phone! But if it catches your interest, as it did mine, you might find it worthwhile. (Before I dipped into it, I looked up the author to make sure I wasn’t going to be jerked around by some crackpot internet nut job. Wilson was a highly respected political scientist who spent most of his career at UCLA and Harvard and was the President of the American Political Science Assiciation and much more. Although his views are generally fairly conservative, his bona fides are impeccable.)
But back to Napa. In the interest of fairness, I must note that there are two sides to this story. I had a fairly lengthy exchange of e-mails with Jake Schneideman, owner of St Helena Cyclery, who makes the case for some sort of oversight on bike events in Napa County…
I have been pushing Napa County to make an effort to manage the increasing number of events in Napa County for many years. (As a bike shop owner, people expect me to be against this ordinance.) Some events are permitted and some are not. Some are courteous to our valley, some are not. But what is clear: the number of events in our valley (and especially Up Valley -St Helena and Calistoga) has almost doubled in the past 5 years. “Red Tape” had to come at some point because it was turning into a free for all, with multiple events happening everywhere in the county and affecting the quality of life and the experience of visitor and resident alike.
While your event has minimal impact on this valley, it is indeed getting caught up in the dragnet of the County trying to manage ALL the events happening in the County – not just sporting events. It’s happening a little too late, and it seems very heavy handed – but something is needed.
As someone who is surprisingly in support of this new ordinance, I am concerned that the permit process is turning into a fiasco. That is not the intention. I know that many of the “new” requirements were pushed for by the agencies in charge of keeping us safe. EMS had a large role in these changes, since they are ultimately responsible for the response to any accident. They, and the CHP, are pretty heavy handed with their requirements, but if the Supervisors choose to ignore their recommendations, then they are ultimately responsible for any accident that may occur.
This is part of my reply to Jake:
You may be correct, in some respects, that something has needed to be done about the proliferation of all “special events” in the valley, from running events to film shoots to bike rides to the many, many wine-related festivities. But the fact remains that under most circumstances, the County or any similar entity does not have the legal right to implement such permitting processes and regulations (at least not with respect to bike rides where no special traffic controls are to be put in place).
This is expressly why I have never applied for any sort of permits for our event. For the CHP or any EMS entities to lean on the County to implement such regulations is completely outside the law. And for the politicians and planners at County to bow to this pressure—if that’s how it played out—is craven or ignorant or both. (And for what it’s worth, both emergency medical responders and police forces have a vested interest in promoting regulations that mandate more employment of emergency medical responders and police personnel.)
I see the great catch-all of “cover your ass” at work here: nobody wants to be seen to have not done the prudent, safe, defensible thing, because if some accident does happen out there—and the messy real world is full of accidents—then they want to be able to say: don’t blame me!
I totally understand that it would be a bad thing if two largish bike events ended up on the same road or using nearby spots for rest stops on the same day. For all of my years of involvement in the sport, there has been a sort of understood etiquette about event organizers not poaching on the dates or turf of established events. Prospective event promoters looked at the available ride calendars and didn’t step on the other guy’s toes. Perhaps that is changing now, as all the best dates fill up. So perhaps there is a need for some oversight regarding schedule. But again, as the CVC has it, there is no legal remedy for enforcing that.
I’m not a Reagan Republican who thinks government is the problem. There are many aspects of our unruly world that need to be regulated, from outright crime to banking hi-jinx to envrironmental depradation. I’m all for it. But I also believe that the civil service—from law enforcement to county paper pushers—is a self-perpetuating organism. Their natural, almost genetic inclination is to generate more and more red tape and regulations and rules. Part of it is the protective, cover-your-ass fear of liability exposure and part of it is simply that that’s how they’re wired: that’s how they function when the roll into work in the morning. And that being the case, whenever they crank out a new ordinance—whether they have the legal authority to do so or not—they tend to over-complicate it by getting all lawyer-ish: don’t let any possible detail slip by. So we end up with absurdly complicated protocols…hoops to jump through and fees to pay.
And remember: the red tape pushers do that for a living. They get paid for their time. The poor saps who have to untangle the red tape—guys like me—are nine times out of ten amateur volunteers, dealing with this mess in their spare time, either for the simple pleasure of helping some cyclists have a nice day or for some good cause, usually on a shoestring budget.
I can see that holding larger events to a higher standard makes some sense, even if the legal basis for doing so is suspect. But at least one of the things I object to is the deletion of the exemption for rides with under 250 riders (riders who are expected to follow the CVC). That to me embodies all the problems with permits and bureaucrats (among whom I include the CHP): they never seem to know when to rest; when to back off and let society run itself. Once they begin the process of regulating, they have to regulate EVERYTHING, because to not do so would be to admit that things are not as black and white as they need the world to be for the rules to work. We’d probably still be in the county if they hadn’t dumped that waiver.
You say your quality of life is being negatively affected by all the traffic and events. I believe you. You see it right in front of your store on the main street of St Helena every day. But I submit that at least 75% of the problem is automobile traffic and tourists, not cycists. How are you going to regulate the auto traffic? How are you going to cut those numbers in half? Tell the wineries and restaurants and gift shops that you’ve imposed a quota on how many customers they’re allowed to cater to each day or each week?
It’s convenient to fasten onto the cyclists and call them the problem because they’re easy to identify and isolate and, at least in the cases of their century-style rides, easy to regulate or harass. And of course most residents of the valley are not cyclists and do not understand them or appreciate them, so again, it’s convenient to isolate the riders as “other”…someone not like me, the way Donald Trump does with Muslims: easy, convenient scapegoats.
Any truly fair-minded reader will protest that I have not been 100% fair with Jake here. I allotted him three paragraphs to make his case and I gave myself nine paragraphs for my rebuttal. I stand guilty as charged! But I do appreciate the point he makes, and one which he believes is worse in Napa Valley because it is a relatively small and confined area, with fewer roads than, say, the big, hilly sprawl of Sonoma County. Too many events; too little space and too few dates. Okay…point taken.
But I repeat that this over-saturation of tourists in Napa County is not down to bike events alone or even primarily. Napa County has promoted tourism as aggressively as any region in the state, and their efforts have been rewarded with an endless tsunami of wine-bibbing partiers and sightseers…and yes, some cyclists as well. I still maintain that the vast majority of visitors—the ones causing weekend gridlock along the main streets of Calistoga and St Helena and Yountville—make their way around the valley in cars, in stretch limos, in chartered buses. I said in my note to Jake that the motorized tourists account for 75% of the total. That was wrong. They account for at least 90% of the total and most of the problems. The motorized hordes are like pods of whales, while the cyclists, in their ones and twos and occasionally in larger clusters, are like the little pilot fish swimming alongside the whales…almost insignificant. Imagine how much worse the congestion would be if all those cyclists were in cars!
In any event, on two wheels or four or more, tourists are what Napa wished for and tourists are what they now have, in spades. Tourist destinations all over the map grapple with this same problem. Look around California, from Solvang to Carmel, from Healdsburg to Mendocino: any time you hang out the tourist bait, they will come, and sooner or later, you’re going to be overrun and overwhelmed. Just as Mickey Mouse discovered in The Sorcerer’s Apprentice, Napa County unleashed a monster on itself. But they can’t legislate their way out of this by persecuting one small sector of the population (bike riders). This is not fair to that predominantly blameless group, it is not legally defensible, and it won’t put a dent in the problem they imagine they’re trying to solve.
Although the local cycling club in Napa County seems to have caved in to the pressure on permits and regulations, at least for now, and ditto for some of the other event organizers working within the county, that does not mean this battle is over. Patrick Band, the director of the Napa County Bicycle Coalition, is still negotiating with County staff on the details of the ordinance. He and I have been swapping e-mails about it. Here’s a recent note from him…
Up for discussion at the April 5th Board of Supervisors meeting is adoption of a revised fee schedule for the County, including everything from birth certificates and photocopies to building permits. Included in that list is a proposed $729 "road preparation" fee that would be required of anyone securing a special event permit. Ostensibly, the fee is to cover the cost of road repairs/maintenance issues, trimming of vegetation, street sweeping, or other activities to prepare the course for the event. Our position is that the roadway should be safe for cyclists or runners 365 days a year. It's difficult for the County to make the case that a 200-mile ride would receive the same "road preparation" services over the extent of the route as a local 5-k fun run. Additionally, the County is proposing a $500 per rest-stop cleaning deposit. For events like the Tour of Napa Valley or marathons that have many rest stops, this could be as much as $3,000 or $4,000 in deposits. Bottom line - cyclists are likely on the hook for thousands of dollars in new fees. (Bill’s note: thanks to intervention from Patrick, County staff subsequently reduced that to just one $500 cleaning deposit per event.)
I'll also point you to an article in the Napa Valley Register from Calistoga Mayor (and Calistoga Chamber of Commerce E.D.) Chris Canning.
I would like to encourage you to share with readers that the Napa County Bicycle Coalition has been fighting this proposal for over a year. But we're a very small organization and have limited resources. While we're happy to have allies in the cycling community help us continue to fight this ordinance, we also need folks to keep coming to Napa to ride. I've heard more than a few people say they will boycott Napa cycling events as a result of these rules. While we share the frustration, avoiding Napa (whether formal events, club rides, or a ride with friends) will only further harm our local cycling community. If folks really want to help, have them reach out to us - we can't beat this thing on our own.
Taking what Patrick said to heart—about needing help in this fight—I got in touch with Jim Baross, the President of CABO. He promptly replied:
Yes, CABO cares and would wade in where and how we can, as we have done in the past on these same issues: “parade" and similar permits, fees, and requirements/impediments to lawful travel by bicycle.
The materials - letters and recommendations - that Michael Graff worked up for us could be reworked and provided for you or others to use locally. I could draft and send letters. I may be able to enlist local CABO members to assist.
I just read the article you provided. CABO agrees that rides as described where, "We expect all our participants to abide by the statutes in the Vehicle Code. We don’t ask for road closures or traffic controls or any other services from public agencies. We don’t leave litter on the course or around our rest stop. We don’t obstruct other traffic or inconvenience other road users. We’re just a bunch of bike riders out using the roads the way they are intended to be used…by and for the public." …regardless of the number of riders, if no special services and non-standard traffic controls/behaviors are needed, we agree with you.
CABO wants to help to protect everyone's right and ability to travel by bicycle. What will help you?
I put Chris Baross and CABO in touch with Patrick Band and the Napa County Bicycle Coalition. They’re working on this together now. We can hope they’ll make some headway on rolling back this ordinance.
I would say, “stay tuned,” but I doubt I will run a fourth column on this subject. The wheels will probably be turning for quite a while yet on this one, and the rest of the cycling world is crying out for my attention. But if any really interesting developments occur, I’ll find a way to mention them in this space, somewhere up the road.
Bill can be reached at email@example.com