How not to write a golf car ordinance1
In reviewing dozens of local ordinances annually, we observe some localities take the lazy way out and merely adapt another nearby locality’s ordinance’s language for their use. This method of legislative drafting ignores best practices and principles of legal drafting. It often results in omission of necessary precautions surrounding the use of golf cars in traffic mixed with larger and heavier motor vehicles. It also sometimes results in ambiguous or difficult to enforce requirements.
For instance, a recent pending ordinance amendment specifies “slow vehicle” markings.2 What standard is to be used for these “markings”? Is it ANSI/ASAE S276.73? Or some other standard not easily found to be referenced in the state statutes or motor vehicle regulations? Numerous ordinances do not make it clear on which streets golf cars may be deployed. Other ordinances do not require posting those roads upon which golf cars are permitted thereby failing to warn other motor vehicles of their presence.
A more careful approach to drafting golf car ordinances begins with an examination of the state motor vehicle code definitions. Are “golf cars” or “golf carts” defined or excluded as motor vehicles? If “yes” what code provisions include them? Does the state mandate specific operational, environmental, maintenance and equipment requirements for the local government to adhere to in allowing golf cars on the locality’s streets? May the local government prescribe more stringent operational, environmental, equipment and maintenance standards than the state requires? In Florida, for example, it may not. 4
Some states require a driver’s license or minimum age for the operator. Other states prescribe slow moving vehicle signage and flags. If the golf car is to be operated at night, then headlights, reflectors and brake lights may be required by the state enabling act.
If the state doesn’t provide for operation of golf cars on public streets, then does the local government have sufficient autonomy to provide for their use anyway using its autonomous governing power? Likely not; but the answer to this question will necessarily involve resolution by the local government governing authority following the participation and opinion of legal counsel. More probably, the local government will need to seek the adoption of state enabling legislation to proceed further. See, e.g., “Model State Enabling Act” downloadable for free at www.iltva.org/legislation.
If state law allows a local government to prescribe for use of golf cars on the locality’s streets, then recourse should be made to the industry standard published by the American National Standards Institute, (“ANSI”). See ANSI/ILTVA Z 135. This standard includes the performance and maintenance specifications for personal transportation vehicles, (“PTVs”), i.e., golf cars designed for public street use. A free copy for download is available from www.iltva.org/standards. Likewise, the drafter should consult “Model Legislation for use of Personal Transportation Vehicles (PTVs) on Public Roads” found at the same website under the “legislation” tab. The referenced “Model Legislation” contains numerous components for the drafter’s consideration.
Specific attention should first be focused on establishing a PTV transportation plan (authorized for PTV use) for roadways and streets within the local authority’s jurisdiction.5 Those streets with speed limits exceeding 25 mph and state highways should be excluded from the plan. A survey map of the municipality’s or county’s streets available for PTV use is useful if not necessary.
Next, the local governing body should examine the guidelines, recommendations, and criteria with respect to planning, design, operation, and maintenance as set forth in the American Association of State Highway and Transportation Officials Safety Manual.6
Prior to the enactment of a PTV plan, the local authority should submit the plan to the law enforcement agency having traffic law enforcement responsibilities in the plan area and allow for the agency’s input and comment upon the PTV plan.7 If law enforcement is brought to the table earlier on, they will be more likely to “buy into” the plan than if confronted with it later. We have observed several instances where law enforcement authorities raise objections to allowing PTV access to roadways because they were not consulted in advance and had no opportunity for input. Involving law enforcement officers the opportunity to have input in advance may avoid later delays in implementation to address questions that could have been resolved in the planning stages. Law enforcement officers may be particularly helpful in determining which roadway segments are suitable to safely accommodate both regular vehicular traffic and personal transportation vehicles.
The local governing authority should decide on the permitting process for personal transportation vehicles operating within the plan area. Such permitting process may include, but is not limited to, requirements regarding permit posting, permit renewal, operator education, and liability insurance.
Establishing minimum safety criteria for PTV operators, including, but not limited to, requirements relating to maintenance and safety is most important. It is recommended operators shall be required to possess a valid driver’s license and comply with the fiscal responsibility requirements for passenger vehicle operators.
Other elements of an appropriate PTV plan may be found in section (d) of Georgia Code § 40-6-365. Significant is the element of community involvement. It will be wasteful of the local government’s governing board and its staff’s time if the public doesn’t buy into the plan after having spent innumerable hours preparing it. Our own experience of several years’ service on a metropolitan county’s planning board demonstrates the futility of attempting to adopt or recommend ordinances when a large segment of the voting public show up to protest them. Elected officials are understandably reluctant to fly in the face of voter distemper. Far better to educate and provide the opportunity for involvement of concerned citizens in advance than spring a debatable subject for the first time in an open public hearing on the proposal.
The preamble to the ordinance is important. Because the local town or city council may be concerned about the municipality’s liability if it allows the use of PTVs, the drafter should consider the following example:
This ordinance is adopted to address the interest of public safety. Some PTVs are not designed or manufactured to be used on public roads, and the [name of local jurisdiction] in no way advocates their operation on public roads. The [name of local government], by regulating such operation, is merely addressing safety issues. Adoption of this ordinance is not to be relied upon as a determination that operation of PTVs on roads is safe or advisable if done in accordance with this ordinance. All persons who operate or ride in PTVs on roads do so at their risk and peril, and must be observant of, and attentive to the safety of themselves and others, including their passengers, other motorists, bicyclists, and pedestrians. [name of local jurisdiction] has no liability under any theory of law, for permitting PTVs to be operated on roads under this ordinance. Any person who operates a PTV is responsible for procuring liability insurance as set forth in this ordinance as a condition of using a PTV on the roads of the [name of local jurisdiction]. Notwithstanding the foregoing, [name of local jurisdiction] after considering the speed, volume and character of motor vehicle traffic using its public roads, has reviewed and approved the use of PTVs on public roads under the conditions and limitations hereinafter prescribed.8
Of course, state law may vary respecting a local government’s ability to exonerate itself for personal injury and property damage liability. The local government’s legal counsel will have to satisfy his/herself the preamble cited above is sufficient without more to provide the desired exoneration.
It may be likely a small sized local government will feel it doesn’t have the resources to follow all the recommendations for proceeding with a PTV ordinance set forth in the cited references. In such a case, the drafter might prepare a checklist of those necessary elements to include in the proposed ordinance. At a minimum, the checklist should include the following:
- Does state law allow for the use of golf cars (PTVs) on public streets? Under what conditions?
- On which streets would PTVs be deemed relatively safe if used on public streets? It is recommended that the use be confined to streets with a maximum speed limit of 25 mph.
- What warning signage should be employed to both satisfy state requirements, if any, and to provide adequate warning to other vehicles of the presence of PTVs?
- Who should be allowed to operate PTVs? It is recommended only persons with a valid driver’s license and at least 16 years of age be permitted to operate PTVs.
- What equipment is required? Recourse to applicable state law is necessary to answer this question.9 Also, ANSI/ILTVA Z 135 gives a list of recommended accessories and components to include.
- What permitting is to be required, what is the permit fee and how often does it need to be renewed? Is the permit transferable to a new owner or will a new permit be required for the new owner?
- Will inspection of the PTV be required and if “yes” who will do the inspection and what will it entail?10
- What sanctions are to be imposed for violations of the ordinance?
- What vehicle identification is required and how and where is it to be affixed to the vehicle?11 It is recommended recourse should be made to both state law and ANSI/ILTVA Z 135. The importance of having vehicle identification cannot be overemphasized as law enforcement officers will need to report data concerning the vehicle if involved in an accident.
- Will personal injury and property damage insurance be required? It is recommended that this insurance be mandated. The local government law enforcement agency should examine the insurance proffered by the PTV owner to verify the insurance covers use of the vehicle on public streets. Some insurance policies do not. Consideration might be given to requiring the insurance certificate include the local government as an additional insured if the local council is concerned about its liability.
- Will crossing highways or streets upon which PTVs are not allowed to travel be permitted and under what locations and circumstances? State law should be consulted as well as The Manual on Uniform Traffic Control Devices.12 The latter requires that signs be posted directing golf carts to cross at specific locations.
- Does state law exempt PTVs from motor vehicle registration and certificate of title requirements?
The foregoing list is not exhaustive but it is hoped the drafter will be encouraged by reviewing it to search carefully in the resources mentioned herein to provide for other useful safety measures.
In summary, to draft an effective PTV ordinance requires patience, research and careful distillation of many elements to include. Hopefully, this brief article will give some useful leads to the resources available and result in a more effective ordinance than otherwise may be the case.
1 The author of this article is Fred L. Somers, Jr., Esq., ILTVA Secretary and General Counsel. The views expressed in this article are intended for information only and to generate discussion and possible action by local governments and their legal counsel. They do not necessarily reflect the policy or position of ILTVA or its members. This article does not constitute legal advice or a legal opinion.
3 ANSI/ASAE S276.7-2010 Slow Moving Vehicle Identification Emblem (SMV Emblem).
4 See Fla. Attorney General’s Advisory Legal Opinion Number: AGO 2003-58 Date: December 15, 2003.
5 See, e.g., Official Code of Georgia § 40-6-364
7 See, e.g., Official Code of Georgia § 40-6-364.
9 See, e.g., Official Code of Georgia § 40-6-330.1.
10 If state law does not include a provision reciting: “No local authority shall be liable for losses that result from exercising or not exercising inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of a PTV”, then the local government’s legal counsel may be wise to include this recitation in its ordinance and in the permit application.
11 See, e.g., Official Code of Georgia § 40-4-5.1.
12 See DEPARTMENT OF TRANSPORTATION Federal Highway Administration 3 CFR Part 655 [FHWA Docket 95–8] RIN 2125–AD57