Municipal Regulation of App-Based Dockless Scooters and Bicycles: Navigating Emerging Legal Issues
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- Elinor Cobb
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1 Presenting a live 90-minute webinar with interactive Q&A Municipal Regulation of App-Based Dockless Scooters and Bicycles: Navigating Emerging Legal Issues THURSDAY, FEBRUARY 7, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Gregory Rodriguez, Of Counsel, Best Best & Krieger, Washington, D.C. Jessica Sangsvang, Senior Assistant City Attorney, Fort Worth City Attorney's Office, Fort Worth, Texas Negheen Sanjar, Director of Legal Research, International Municipal Lawyers Association, Rockville, Md. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.
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5 Municipal Regulation of App-Based Dockless Scooters and Bicycles: Navigating Emerging Legal Issues Greg Rodriguez Best Best & Krieger 2018 Best Best & Krieger LLP
6 Smart Mobility in Cities 6
7 Docked VS Dockless 7
8 Not Lock 2... Lock-to 8
9 Dockless E-Scooters 9
10 App-Based Micromobility 10
11 Definitions Right-of-Way Parking Fees Contracting Insurance Rider Safety Enforcement Legal Issues 11
12 Jurisdiction Conflicts Federal vs. State vs. Local 12
13 State Bills Issue Spotting Clarifying definitions not motorized and micromobility device Helmets Sidewalks Local regulation Data Sharing Fees Licenses 13
14 Who is liable? How to track liability? City Path to Liability? Company Insurance? Mechanic User? Juicer 14
15 Caveat Emptor? [Rider Beware] Examples from Terms of Use Rider is at least 18 Years Old (Bird Sec. 1.2) Rider shall conduct a basic safety inspection (Bird Sec. 3.1) Recommends wearing helmet and rider assumes all risk (Bird Sec. 3.3) Does not guarantee there will always be a safe place to ride (Bird Sec. 3.5) Binding arbitration (Bird Sec. 9) 15
16 Lawsuit Examples Class action claiming gross negligence by scooter companies Issue: Duty to non-riders who have not signed terms of use? Lime sought injunction related to San Francisco procurement process Issue: Public contracting / Competition Bird sues Beverly Hills over moratorium Issue: Right of local control / Preemption Americans with Disabilities Act Class Action Issue: Infrastructure / Right-of-Way Access 16
17 DATA, DATA, DATA. 17
18 BENEFITS VS. RISKS Efficient use of resources Prioritizing infrastructure investments and capital projects Insights into rider preferences Safety Misuse of information Data breaches Compliance costs Privacy and customer trust Cybersecurity 18
19 What are Cities doing? Examples from Ordinances Protect public health and safety Pilot Programs Dynamic Cap Adjustment But, who has discretion? User engagement and education Visible notices to user Performance Bond or Irrevocable Letter of Credit 19
20 What are we reading? 20
21 Mobility Opportunity Yes, BUT Source: Proactive Mitigation of Risk Collaboration Planners + Lawyers Infrastructure Education and Outreach Data Driven Policies and Regulations Sustainability? 21
22 INNOVATE THE WHEEL... DON T TRY TO REINVENT IT 22
23 HERE TO STAY? 23
24 WHAT S NEXT? Photo Credit: GeekWire Photos / Taylor Soper 24
25 Greg Best Best & Krieger LLP Washington, D.C. (202) Best Best & Krieger 2018 Best Best & Krieger LLP
26 LOCAL PERSPECTIVE & CONSIDERATIONS (DOCKLESS SCOOTERS & BICYCLES) Jessica Sangsvang Senior Assistant City Attorney City of Fort Worth, Texas
27 Consideration of Local and State Laws & Recommended Best Practices This presentation will discuss the various regulatory schemes used across the country to regulate dockless scooters and bicycles at the local level, specifically noting the political and public nature designing regulation. It will also discuss state law considerations that municipal practitioners should consider. Further, the various elements of dockless regulation will be discussed and a recommendation for best practices will be provided. 27
28 Presentation Outline I. Local Regulatory Schemes A. Political and Public Process 1. Local Support or Opposition Considered a) Goal b) Multi-Department Considerations 2. Multiple Public Meetings Recommended 3. State Law and Legislative Changes 4. Pilot Program 28
29 Presentation Outline Continued B. No Regulation, Licensing, or Permitting 1. Come One, Come All 2. Licensing the Use of Right-Of-Way a) Ordinance and/or Competitive Processes b) Contract c) Qualifications to Get License d) Fees e) Enforcement 3. Permitting a) Ordinance b) Qualifications to Get Permit c) Fees d) Enforcement 29
30 Consideration of the Political Influence Are the requests for dockless scooters and bicycles coming from elected officials or from the companies? Is local permission required? What ordinances do you currently have that may apply? Ex: Scooters can or cannot operate on sidewalk How much time do you have to implement a program? Is a pilot program an option? What other technology may be coming that you should consider in your regulatory scheme? How does state law tie into your regulatory scheme? What is the state doing to preempt local regulation? What stakeholders are lobbying? 30
31 Start with a Goal What are you trying to achieve by regulating dockless scooters and bicycles? Examples Limiting Clutter in the Right-Of-Way Ensuring ADA Access is Not Obstructed Providing Mobility Alternative to Vehicles for Short Trips in High-Density Areas Providing Last-Mile Alternative at Bus Transit Stations and Stops Providing Transportation Option in Low-Income Areas 31
32 Municipal Staff Influence Inventory Effect for All Departments Park and Public Space Use Are you going to allow them to operate on trails and in parks? Transportation Where will they be stored? Are these adequate last mile solutions? Police Are they going to impound ones out of compliance? Are they going to issue citations and who will you cite? Are they going to handle general complaints? Code Compliance Are you creating a civil penalty? How are you regulating the storage of them on private property? 32
33 Municipal Staff Influence Continued Planning and Development Do you have bike lanes? Are the sidewalks designed to accommodate both pedestrian and dockless scooters and bicycles? Economic Development Are they paying sales tax? Are they paying property tax? Municipal Court How will they process citations? Will you use a hearing officer or a judge? Neighborhood Services What low income programs are offered and will they be effective for your underserved areas? 33
34 Public Meetings Identify Key Community Stakeholders Have Multiple Meetings and Platforms Surveys of the Public and the Companies Meetings with Elected Officials Benchmarking of Similar Cities and Cities in Your State Structure of Program Local Management Access to Data Non-routine Events Public Education Insurance/Indemnification Third-Party Advertising Use of Sidewalks Count Caps Parking Safety Compliance 34
35 State Law and Legislative Changes Review State Law How does state law define terms for purposes of local regulation? Does state law regulate where dockless scooters and bicycles can be used? Who owns the right-of-way? How do you calculate fees for permits or licensing? Does your state require sale tax for these operators? What limitations on government liability does your state have? Consider Whether Bills are Proposed Are bills being filed now or in upcoming sessions? Do the proposed bills preempt local regulation or defer to local regulation? Who is lobbying for change in the law? What other indirect bills are filed (e.g. tax, data privacy, etc.)? 35
36 Pilot Program Limited Time (6-12 months) Automatic or Optional Renewal Period Establish a Process Contract, Ordinance, Competitive Process Criteria to Evaluate Success Rider Usage and Trip Data Violations, Complaints, and Accidents Staff Time and Costs Related to Program Input from Users, Stakeholders, and Operators Boundaries for Pilot City-wide or Limited 36
37 No Regulation Free Enterprise Ordinances to Ban Operations without Local Permission Allowed to Operate because No Ban Public Safety Other Areas of Regulatory Power 37
38 Licensing Right-Of-Way Ordinance Plus Contract Competitive Process Limiting Operators Licensing Agreement Treated More Like a Lease Ability to Require Favorable Terms Access to Data, Indemnification, Insurance, Bond, Termination, Rebalancing, Call Response Time, Public Education, Low-Income Programs, Set Operational Expectations, Parking, Require Cooperation with Investigations, Hold Operator Responsible for User Actions, Timeliness for Managing Complaints, Etc. Renewals with Opportunity to Adjust Regulation Ability to Limit Operational Zones 38
39 Licensing Right-Of-Way Continued Qualifications to Get License Safety Standards Regular Maintenance Speed Limiter Operator Name and Phone Number on Equipment to Report Issues Remote Lock-Down Equipment Sufficient for Safety History of Operation in Other Areas Use of Data/Consumer Agreement Cap on Number of Units Maximum Number Per License Maintain Minimum Average Daily Trips Opportunity for Incremental Expansion 39
40 Licensing Right-Of-Way Continued Fees Calculated at Fair Market Value Annual Fee Plus Monthly Rent Recover Other Costs Costs for Parking Corals Enforcement Ordinance Violation Civil v. Criminal Violations Contract Compliance Monitoring Breach of Contract Penalties Termination Parking Prohibitions 40
41 Permitting Ordinance Harder to Change When Issues Arise Monitoring Compliance Limits Changes During Permit Period Limits Flexibility for New Technology State Preemption Regulate Use of Dockless Scooters and Bicycles as Well as Operators Qualifications to Get Permit Outline in Ordinance Capping Number of Operators Proving Compliance with Ordinance Qualification Requirements 41
42 Permitting Continued Fees May be Limited to Charge Actual Cost Only Loss of Income Operators Make Profit from Users, Data, and Maybe Advertising Enforcement Limited to Civil or Criminal Violation and Revoking Permit Against the User or the Operator Prosecuting a Business is Challenging 42
43 Questions? Jessica Sangsvang Senior Assistant City Attorney City of Fort Worth, Texas
44 IMLA Dockless Micromobility Guidance Negheen Sanjar Director of Legal Research (202) ext
45 The Guidance IMLA s Dockless Micromobility Guidance addresses: Approaches to regulation Definitions and terms Use of right of way and parking restrictions Permit or licensing requirements Consumer protection and data privacy Data sharing Ancillary programs Insurance and liability Additional contractual considerations 45
46 Approaches to Regulation, Permits, and Contracting Overarching regulatory approaches: Pilot Program Ordinances Agreements Prohibition until regulated No regulation Alongside these approaches a number of localities require permits or licenses to operate Contracts for additional terms 46
47 Definitions and Terms Shared electric scooters or shared mobility device versus scooters or vehicles/motor vehicle Lawful operator or user In some jurisdictions, state law controls definitions and terms such as: Definition of scooter or vehicle Licensing or operating requirements Minimum age requirements 47
48 Use of Right of Way and Parking Restrictions Issues arising from use of the right of way: Legality of operating on streets or sidewalks Wisdom of operating on streets or sidewalks Helmet requirements ADA compliance Hazards in the right of way Parking requirements, geofencing, lock-to requirements, etc. Incentivizing and tracking enforcement 48
49 Consumer Protection, Data Privacy and Data Sharing Review the company s privacy and data sharing policies. When thinking about data privacy and consumer protection ask: What information does the company collect? Can the user opt-out of data collection? Is the information anonymized? How is the information stored? Is the information sold to third party data brokers? If the user agrees to share information, does that then imply other private data unrelated to the company s app will also be shared? What are the procedures in case of a data breach? Update your privacy policies to address the approval of smart projects that collect citizen data. Keep up to date on Federal and State regulations that impact data collection and your own privacy policies 49
50 Insurance and Liability Protect your locality: Run risk analysis and determine whether the locality has adequate insurance Seek indemnification from the company Request a copy of the company s insurance policy for review Determine whether your locality should be listed as third-party insured Determine whether insurance requirement must be passed down to subcontractors Consider requiring performance bonds to ensure compliance with regulations and to cover the costs the locality incurs as a result of the presence of the business 50
51 Questions? For a free copy of the IMLA Dockless Micromobility Guidance, contact Negheen Sanjar at nsanjar@imla.org 51
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