1 2 3 Mathew D. Freeman, Esq. State Bar No. 296855 1200 Third Avenue San Diego, CA 92101 Administrative Hearing Officer 4 5 6 7 8 ADMINISTRATIVE HEARING 9 FOR THE CITY OF SAN DIEGO 10 11 12 In the Matter of The Revocation of Shared Mobility Device Permit No. 2313123, Neutron Holdings, Inc. dba. Lime, 13 ADMINISTRATIVE ENFORCEMENT DECISION Appellant, 14 vs. 15 16 City of San Diego, Development Services Department, Code Enforcement Section, Date: October 24, 2014 Time: 10:00 a.m. Hearing Officer: Matthew D. Freeman Hearing by Personal Appearance 17 Complainant. Hearing by Written Declaration 18 19 ADMINISTRATIVE ENFORCEMENT DECISION 20 21 22 23 24 25 I. STATEMENT OF THE CASE Matthew D. Freeman, was assigned as the Administrative Hearing Officer for this matter, in accordance with the San Diego Municipal Code (SDMC) §§ 12.0403(a). On October 24 and October 28, 2019, evidence was received, testimony was presented. On November 7, 2019, the City of San Diego (City) submitted its reply brief, the record was closed, and the matter submitted. Hearing Decision- 1 1 2 3 The purpose of this hearing was to determine the following issues related to the City of San Diego, Development Services Department, Code Enforcement Section’s, revocation of Shared Mobility Device (SMD) Permit No. 2313123 for an alleged violation of SDMC § 83.0308 (Geofencing Speed and Operating Restrictions). A. 4 5 Issues (1) Whether the Notice of Violation issued by the Complainant gave proper notice of the alleged violation in accordance SDMC § 12.0103. 6 7 (2) 83.0308. 8 9 10 11 12 13 B. 16 17 Parties Deanna Walker and William Dauphin appeared on behalf of Complainant, City of San Diego (“the City”). The following also appeared and testified on behalf of the City: Leslie Sennett, Morris Dye, Officer Lopez, Detective Michael Gottfried, Raynard Abalos, Rimah Khouri-Velez, Edric Doringo, and Raquel Torres. Leslie Devaney and Sue Mason appeared on behalf of Appellant Neutron Holdings, Inc. DBA, Lime, the Appellant, (hereinafter, “Lime.”) The following also appeared and testified on behalf of Lime: Kimia Talebian and Thomas Blackburn. 14 15 Whether Appellant failed to comply with the geofencing requirement of SDMC § C. Witnesses and Evidentiary Exhibits Individual witnesses and evidentiary exhibits are indexed and identified on the Exhibit/Witness List attached to this Administrative Enforcement Order. The evidentiary exhibits admitted into evidence on the record during the hearing are incorporated by reference as though set forth in full here1. 18 II. FACTUAL FINDINGS 19 A. 20 21 22 23 Procedural Background 1. On July 17, 2019, Lime was issued a Notice of Violation for violation of SDMC § 83.0308, alleging failure to comply with geofencing speed and operating restrictions. The City gave Lime a deadline of July 29, 2019 to cease operation of any Shared Mobility Devices unless it could show it met all Geofencing Permit requirements. The Notice of Violation indicated Lime’s failure to comply may result in its permit being revoked. (City’s Exhibit 1) 24 25 Only exhibits with an “X” or other similar mark in the “EV” column of the Exhibit/Witness List were admitted into evidence during the hearing. 1 Hearing Decision- 2 1 2 3 4 5 2. On August 16, 2019, The City emailed Lime a letter indicating the City intended to revoke Lime’s permit and the City would schedule a hearing. 3. On September 30, 2019, the Notice of Hearing was served upon Lime in accordance with SDMC § 11.0301 in that the Respondent was served via U.S. and certified mail with the date, time, and location of its hearing. The record contained evidence of proof of service. 4. On October 1, 2019, Lime requested a continuance. The City granted that continuance. 6 5. The hearing was rescheduled to October 24, 2019. 7 8 9 10 B. General Factual Background 6. On July 13 and July 14, 2019, Detective Michael Gottfried, San Diego Police Department Traffic Investigations Unit, conducted field investigations performing speed checks on Shared Mobility Devices. The results of his investigations are summarized in an undated document (see City’s Exhibit 4). 11 12 13 14 15 16 17 18 In that report, Detective Gottfried indicated that on July 13, 2019, from 2:20 p.m. until 3:20 p.m., he was “at the boardwalk in Seaport Village just east of the vehicle entrance to the Embarcadero Marina Park North.” The area is also identified in the report as the “North/South Embarcadero.” During that time, he observed seven SMDs he identified as belonging to Lime. He used “a laser” to measure speed and alleged one Lime scooter travelling at eight miles per hour and another travelling at six miles per hour.” His report indicated the speed limit in the area was three miles per hour. The report also indicated that on July 13, 2019, from 6:10 p.m. until 7:10 p.m., Detective Gottfried was at “Petco Park Ballpark Zone,” in “two areas both around the perimeter of the ballpark. [He] was at the east side of the ballpark on 10th Avenue and the north side of the ballpark on J St (just outside Park at the Park).” The report does not indicate the speed limit in the area. The report alleges eight SMDs Detective Gottfried determined belonged to Lime travelling at ten miles an hour or more. 19 20 21 22 Finally, the report indicated that on July 14, 2019, between 10:30 a.m. and 11:20 a.m., Detective Gottfried was at “Ocean Front Walk in Mission Beach Public Walkway,” on “the boardwalk on the ocean side at San Jose Place.” His report indicated the speed limit for SMDs in the area is eight miles per hour. The report indicated he observed 16 SMDs he identified as belonging to Lime. The report alleges he measured two Lime SMDs travelling at nine miles per hour, one travelling at 10 miles per hour, and one travelling at 15 miles per hour. 23 24 25 7. Detective Gottfried testified that he is assigned to investigate fatal and serious automobile accidents. He testified he measured the speeds of the SMDs using a laser device known as Lidar. Although he is certified in the use of Lidar and laser devices, his duties do not include making speed measurements of automobiles or SMDs. He testified that he last used Hearing Decision- 3 1 2 3 4 5 6 Lidar approximately four years ago and prior to July 13, 2019, never used it to measure the speed of SMDs. Detective Gottfried testified the Lidar device used did not belong to him and was given to him by his supervisor. He testified that to measure the speed of the SMDs he would aim the Lidar device at them until he got a signal indicating the device had locked onto the target. He testified that sometimes he would get a lock off the SMD’s back wheel, sometimes off the front wheel, and sometimes off the SMD’s rider. Detective Gottfried provided no specific testimony about where he locked onto any of Lime’s SMDs identified in his report. Detective Gottfried provided no specific testimony about where he was in relation to any of Lime’s SMDs identified in his report. 7 8 9 10 11 12 13 14 15 16 17 18 8. Detective Gottfried testified he determined he was in Geofenced areas by looking at google maps. The City introduced no evidence showing the boundaries of the Geofenced areas, nor did the City submit any evidence other than Detective Gottfried’s report showing where he was in relation to the boundaries of the Geofenced areas. 9. The City’s records show the Lidar device used by Detective Gottfried was last certified to be accurate within one mile per hour at speeds exceeding 35 miles per hour. 10. On July 17, 2019, Leslie Sennett issued a Notice of Violation to Lime (City’s Exhibit 1). The notice also listed several locations where Detective Gottfried’s report did not allege any violations by Lime. The notice did not describe how the SMDs violated SDMC § 83.0308, nor did the notice provide a list of necessary corrections. The Notice of Violation did not include Detective Gottfried’s report. The City first provided the report to Lime on September 30, 2019, more than one month after the City notified Lime by email that the City intended to revoke Lime’s permit (City’s Exhibit 9.) There is no evidence the City provided any other description of how the SMDs violated SDMC § 83.0308, or a list of necessary corrections prior to September 30, 2019. 11. Process. At the hearing, Lime argued these deficiencies constituted a violation of Due 19 20 21 22 23 24 12. Lime also argued the speed measurements taken by Detective Gottfried were inaccurate. Lime introduced Thomas Blackburn as an expert witness by education, training, and experience in the fields of Geofencing and Lidar technology. Mr. Blackburn’s CV was admitted into evidence as Lime’s Exhibit 25. The City did not object to Mr. Blackburn’s testimony as an expert witness. Mr. Blackburn testified that Lidar equipment should be calibrated just before use. He further testified that Lidar relies on reflective signal like a license plate to measure speed. Detective Gottfried testified that to measure the speed of motor vehicles accurately the license plate is targeted. Mr. Blackburn estimated properly taken speed measurements from a calibrated 25 Hearing Decision- 4 1 2 3 Lidar on vehicles traveling at approximately eight miles per hour would be accurate to within plus or minus three or four miles per hour. 13. Lime submitted a user manual for the type of Lidar used by Detective Gottfried (Lime’s Exhibit 74). The manual shows the distance from a vehicle and the angle to the vehicle can significantly impact the accuracy of Lidar. 4 5 6 7 8 9 14. On July 31, 2019, and August 1, 2019, the City conducted compliance testing of SMDs. The City submitted the results of the testing as City’s Exhibit 7. Leslie Sennett, Morris Dye, Raynard Abalos, Rimah Khouri-Velez, Edric Doringo, and Raquel Torres all appeared as witnesses for the City. They all testified that they participated in the testing. They all testified that they are not Code Enforcement Investigators, no part of their job involves testing SMDs, and they received no training on testing. All the witnesses testified that they measured the speed of the SMDs by looking at the speedometers on the SMDs. The City introduced no evidence to demonstrate the speedometers on the devices were accurate. 10 11 None of the witnesses who rode non-compliant SMDs provided detailed testimony of where they were in relation to the Geofenced areas when they noticed SMDs exceeded the speed restrictions. 12 13 14 15 16 17 15. Lime introduced evidence showing portions of the testing took place outside Geofenced areas (Lime’s Exhibit 72). 16. On September 6, 2019, Officer Lopez and Detective Gottfried conducted speed testing of SMDs. Detective Gottfried issued a report (City’s Exhibit 14). That report alleged two of Lime’s SMDs exceeded the speed limit in geofenced areas. Officer Lopez testified that Detective Gottfried used the Lidar and told him the speeds. The report also identified one SMD by serial number. The report alleges that one rider of a Lime SMD stated the SMD let him travel in excess of eight miles an hour. Detective Gottfried’s testimony did not indicate where he was in relation to the two Lime 18 SMDs. 19 20 21 22 23 24 C. Administrative Costs 17. The City submitted a Request for Administrative Costs in connection with the preparation for the Administrative Hearing. The costs are broken down into two categories: City Personnel costs totaling $745.37, and Non-Personnel Costs, such as mailing and copies, totaling $96.49. Combined, these two categories total $841.86. 18. Lime argued neither San Diego Municipal Code or the City Manager’s Policies and Procedures (“CMPP”) authorize recovery of Administrative Costs for the revocation of SMD permits. 25 Hearing Decision- 5 1 III. 2 3 4 5 6 DETERMINATION OF ISSUES AND LEGAL CONCLUSIONS A. Due Process Requirements 1. “The Due Process Clause of the Fourteenth Amendment is the chief limitation on the exercise of police power. If the attempted exercise of power is unreasonable or arbitrary, i.e., not sufficiently justified by public necessity, or too drastic in its methods, it is a violation of due process.” 8 Witkin, Summary of California Law § 983 (10th Ed. Thompson-West 2012). “It has been said that the police power is simply the power of sovereignty or power to govern—the inherent reserved power of the state to subject individual rights to reasonable regulation for the general welfare.” Id. § 976. 7 8 9 10 11 12 13 2. An adjudicative (quasi-judicial) proceeding before an administrative officer or board is sufficient if basic due process requirements are met, including notice and an opportunity for hearing. See Anderson Nat. Bank v. Luckett, 321 U.S. 233 (1944); Mohilef v. Janovici, 51 Cal.App.4th 267, 276 (1996). The notice and opportunity to be heard must be given at a meaningful time and in a meaningful manner. See Armstrong v. Manzo, 380 U.S. 545, 552 (1965). This requirement has generally been interpreted to mean that the individual must at least be given notice of the impending deprivation and the facts on which it is based and some opportunity to present an argument against the administrative action. See Goss v. Lopez, 419 U.S. 565 (1975); Skelly v. State Personnel Bd., 15 Cal.3d 194 (1975); see also Ruth S. Astle, et al., California Administrative Hearing Practice, § 1.63 (2nd Ed. C.E.B. 2011). 14 B. Authority Governing the Issuance of Notices of Violations 15 16 3. SDMC §12.0103 describes the required contents of a Notice of Violation: 17 (a) The name of the property’s record owner; 18 (b) Street address; 19 (c) The code sections in violation; 20 21 22 (d) A description of the property’s condition which violates the applicable codes; (e) A list of necessary corrections to bring the property into compliance; 23 24 25 (f) A deadline or specific date to correct the violations listed in the Notice of Violation; (g) Reference to the potential consequences should the Hearing Decision- 6 property remain in violation after the expiration of the compliance deadline including, but not limited to: criminal prosecution, civil injunction, administrative abatement, civil penalties, revocation of permits, recordation of the Notice of Violation and withholding of future municipal permits. 1 2 3 4 4. . . . [A] person who a Director determines is responsible for causing or maintaining a public nuisance or a violation of the Municipal Code or applicable state codes. The term, ‘Responsible Person” includes but is not limited to a property owner, tenant, person with a legal interest in real property or person in possession of real property. 5 6 7 8 9 10 11 12 13 14 15 16 SDMC § 11.0210 defines the term “Responsible Person” as follows: 5. SDMC § 83.0302 defines Geofencing as “the creation of a virtual geographic boundary, defined by Global Positioning System (GPS), radio-frequency identification (RFID), or other technology, that enables an operator to regulate speed, issue notifications, and take other actions, when a shared mobility device in its fleet enters or leaves an area.” 6. SDMC § 83.0302 defines Operator to mean “a person who manages, owns, or operates a shared mobility device business.” 7. SDMC § 83.0302 defines Shared mobility device (SMD) as “any motorized scooter, electric bicycle, or motorized bicycle by which a natural person can be propelled or moved, that is displayed, offered, or made available for rent to the public.” 8. SDMC § 83.0306 describes the Terms and Issuance of Permits of SMDs. It requires the permit to contain “the number of each type of shared mobility device permitted in the operator’s fleet…” 17 18 19 20 21 9. follows: SDMC § 83.0308 sets forth Geofencing Speed and Operating Restrictions as (a) Through geofencing or similar technology, an operator shall reduce the speed of any motorized scooters and motorized bicycles in the operator’s fleet to eight miles per hour or less at the following locations: 22 (1) on the public walkways within Balboa Park; 23 (2) and on the public walkways within Liberty Station NTC Park; 24 25 (3) on the public walkways within Spanish Landing Park and Trail. Hearing Decision- 7 1 2 3 4 5 6 (b) Through geofencing or similar technology, an operator shall prevent any motorized scooters and motorized bicycles in the operator’s fleet from being locked, parked, or ending a ride, and shall reduce the speed of its motorized scooters and motorized bicycles to eight miles per hour at the following locations: (1) on the public walkway on Ocean Front Walk in Mission Beach, beginning at the South Mission Beach Jetty northward to the terminus of the public walkway at Ocean Boulevard at Law Street in Pacific Beach; 7 8 9 (2) on the public walkway on the west side of Mission Bay Park from San Diego Place (adjacent to the South Mission Beach Jetty) to Corona Oriente Road (terminus of Crown Point Park), known as Bayside Walk; 10 11 (3) on the public walkway on the east side of Mission Bay Park from De Anza Road southward to the South Shores Boat Launch and Park; 12 13 14 15 16 17 18 19 20 21 (4) on the boardwalk from Avenida De La Playa (adjacent to La Jolla Shores) north to the terminus of La Jolla Shores Park at its northeast corner; and (5) on the public right-of-way within the Petco Ballpark Zone, as defined in Chapter 8, Article 3, Division 1 of this Code. (c) Through geofencing or similar technology, an operator shall prevent any motorized scooters and motorized bicycles in the operator’s fleet from being locked, parked, or ending a ride, and shall reduce the speed of any motorized scooters and motorized bicycles in its fleet to three miles per hour at the following locations: (1) Martin Luther King Promenade, as defined in Chapter 8, Article 3, Division 1 of this Code; 22 (2) North and South Embarcadero pedestrian walk; and 23 (3) The pedestrian area on West Date Street east of India Street and west of Columbia Street, known as the Piazza della Famiglia. 24 25 Hearing Decision- 8 (d) The City Manager may adopt additional locations subject to geofencing or similar technology consistent with section 83.0308(a), section 83.0308(b), or section 83.0308(c). 1 2 (e) The City Manager may require operators, through geofencing or similar technology, to temporarily lock down and prevent the operation of shared mobility devices in a specific area during an emergency situation or within the perimeter of a permitted Special Event, as defined in Chapter 2, Article 2, Division 40 of this Code, when necessary to maintain public health and safety. 3 4 5 6 7 (f) When a rider operates a shared mobility device in the operator’s fleet within a location subject to geofencing, the operator shall notify the rider of the reduced speed limit and any other applicable conditions of this section. 8 9 10 10. [i]n addition to the remedies provided in Chapter 1 of this Code, the City Manager may revoke an operator’s permit if the operator violates any provision of this Division or the terms of the permit. If the City revokes an operator’s permit, the operator shall wait at least six months from the date the permit was revoked before applying for a permit pursuant to section 83.0305. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SDMC § 83.0312 governs the revocation of SMD permits and states: 11. SDMC § 12.0907 states as follows. ... (b) As part of the Administrative Enforcement Order, the Enforcement Hearing Officer may reduce, waive or conditionally reduce the penalties assessed by the citation. (c) The Enforcement Hearing Officer may also impose conditions and deadlines to correct the violations or require payment of any outstanding penalties. (d) The Enforcement Hearing Officer shall assess reasonable administrative costs. Costs include, but are not limited to: staff time to investigate and document violations; laboratory, photographic, and other expenses incurred to document or establish the existence of a violation; and scheduling and processing of the administrative hearing and all related actions. Any determination that documented costs are not reasonable must be supported by written findings. Hearing Decision- 9 1 2 3 4 5 12. SDMC § 12.0408 states, “Administrative enforcement hearings are intended to be informal in nature. Formal rules of evidence and discovery do not apply. The procedure and format of the administrative hearing shall follow the procedures promulgated by the City Manager.” 13. SDMC § 12.0408(b) states, “[t]he City bears the burden of proof at an administrative enforcement hearing to establish the existence of a violation of the Municipal Code or applicable state code.” 6 C. 7 8 9 10 11 12 13 14 15 16 17 18 Evaluation of Evidence and Argument 1. The Defects in the Notice Were Not Cured 14. The Notice of Violation, as initially issued, was defective in two ways. First, SDMC § 12.0103(d) required that the notice contain “a description of the property’s condition which violates the applicable codes.” The area on the notice designated for the violation only stated “[f]ailure to comply with geofencing speed and operating restrictions.” And second, SDMC § 12.0103(e) required that the notice provide “[a] list of necessary corrections to bring the property into compliance.” This section of the notice simply stated, “before July 29, 2019, you shall cease the operation of any Shared Mobility Devices until all Geofencing Permit requirements have been met.” These descriptions on the notice were insufficient.2 A description of Lime’s offending conduct is necessary in order to comply with both Section 12.0103(d) and Constitutional due process requirements because Lime is entitled to meaningful notice of what it is alleged to have done wrong. The City’s argument that even a single violation of SDMC § 83.0308 is sufficient grounds to revoke a SMD permit makes the absence of any meaningful facts in the notice even more troubling. Lime is left to guess which of its SMDs are not compliant and the manner in which they were alleged to be non-compliant. Were the SMDs alleged to have exceeded the speed limit by one mile an hour or ten? Or did the SMDs violate SDMC § 83.0308 by being parked, locked, or ending a ride a prohibited zone? Given that Lime faced revocation of its SMD permit for even a single violation, both Section 12.0103(d) and Constitutional due process demanded it be given more information than simply stating it was in violation of “geofencing speed and operating restrictions.” 19 20 21 22 Similarly, the command that before “before July 29, 2019, you shall cease the operation of any Shared Mobility Devices until all Geofencing Permit requirements have been met,” is insufficient. Lime again has no way of knowing what needs to be done to fix the problem. The defects were not cured by the City providing Lime with Detective Gottfried’s report on September 30, 2019. Unlike a situation where Lime was facing a fine for violating SDMC § 23 24 25 2 This assumes a Notice of Violation is even a valid method of enforcing the provisions SDMC § 83.0308. The required contents of a Notice of Violation appear to refer to violations found to exist on real property. SDMC § 12.1002 declares the issuance of and recordation of Notices of Violation as the appropriate method of enforcement for violations found to exist on real property. Because Lime did not raise this issue it was not adjudicated. Hearing Decision- 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 83.0308 and could still present evidence that it was not in violation at the hearing, the defects here prevented Lime from knowing what actions to take to bring its SMDs into compliance. Lime’s alleged failure to bring the SMDs into compliance was the basis of the City’s attempt to revoke Lime’s permit. As such, the defects in the notice denied Lime due process. 2. Evaluation of Evidence of Violation of Geofencing Restrictions 15. Respondent is a “Responsible Person” for alleged violation of the Geofencing restrictions because it operated the SMDs alleged to be in violation. 16. Under SDMC § 12.0408(b), the City bears the burden of establishing that a violation of SDMC § 83.0308 occurred. The City must prove its case by a preponderance of the evidence. Here, the City alleged violations occurred on July 13, 2019, and July 14, 2019. These allegations are based solely on the observations and measurements of Detective Gottfried. Detective Gottfried testified he has never taken Lidar measurements on SMDs before and that he no longer uses Lidar in the course of his regular duties. He testified that he had not tested the Lidar on SMDs to ensure it was accurate prior to his investigations. The Lidar he used was only certified at 35 miles per hour and higher. Here, the SMDs were all traveling at a speed of less than 20 miles per hour. Detective Gottfried only testified in general terms. He did not provide any specific testimony on his measurements of Lime’s SMDs. He did not indicate whether he took the measurements of Lime’s SMDs from the front wheel, the back wheel, or the rider. He did not indicate where he was in relation to the SMDs. There is insufficient evidence to determine that Detective Gottfried’s speed measurements in his reports were accurate. Additionally, there is insufficient evidence to determine the SMDs Detective Gottfried observed were within the Geofenced areas when he measured them. As such, the City failed to meet its burden to prove Lime’s SMDs violated SDMC § 83.0308. 3. Evaluation of Evidence from Compliance Testing 17. The City conducted compliance testing on July 31, 2019, and August 1, 2019. None of the testers had code compliance enforcement as part of their job descriptions. None of the testers had conducted testing of SMDs before. The City determined non-compliance simply by looking at the speedometers on the SMDs, but never checked the accuracy of those speedometers. Moreover, Lime’s uncontradicted evidence showed portions of the tests took place outside of Geofenced areas. As such, the City failed to show the SMDs it tested on July 31, 2019 and August 1, 2019 were in violation of SDMC § 83.0308. 18. On September 6, 2019, Detective Gottfried and Officer Lopez conducted speed enforcement testing. Detective Gottfried took the measurements in a similar manner to the testing he performed in July. As with the testing in July, the City failed to establish Detective Gottfried’s September 6 testing was accurate. Nor did the City establish the SMDs were within the Geofenced zone. As such, the City failed to show the SMDs it tested on September 6, 2019 were in violation of SDMC § 83.0308. Hearing Decision- 11 4. 1 2 3 Administrative Costs 19. Lime objected to the administrative costs. Because there was insufficient factual support for the underlying allegations in the notice, requiring Lime to pay the administrative costs is not appropriate. 4 IV. Order 5 1. The Revocation of Shared Mobility Device Permit No. 2313123 is denied. 2. Lime is not liable for the Administrative Costs in the amount of $841.86. 6 7 8 9 10 DATED: December 3, 2019 BY: /s/ Matthew D. Freeman Matthew D. Freeman Administrative Hearing Officer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Hearing Decision- 12