Municipal Regulation of App-Based Dockless

Scooters and Bicycles: Navigating Emerging

Legal Issues

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.

THURSDAY, FEBRUARY 7, 2019

Presenting a live 90-minute webinar with interactive Q&A

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.

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-871-8924 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail sound@straffordpub.com immediately so we can address

the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 2.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

© 2018 Best Best & Krieger LLP

Best Best & Krieger

Company/BestBestKrieger

@BBKlaw

© 2018 Best Best & Krieger LLP

Municipal Regulation of App-Based Dockless Scooters and Bicycles:

Navigating Emerging Legal Issues Greg Rodriguez

Smart Mobility in Cities

6

“Docked” VS “Dockless”

7

Not Lock 2...“Lock-to”

8

Dockless E-Scooters

9

“App-Based” Micromobility

10

Legal Issues

• “Definitions”

• Right-of-Way

• Parking

• Fees

• Contracting

• Insurance

• Rider Safety

• Enforcement

11

Jurisdiction Conflicts

Federal vs. State vs. Local

12

State Bills – Issue Spotting

• Clarifying definitions –not “motorized” and micromobility “device”

• Helmets

• Sidewalks

• Local regulation

• Data Sharing

• Fees

• Licenses

13

Path to Liability?

• Who is liable?

• How to track liability?

City Company

Insurance?

Mechanic “Juicer”

• User?

14

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

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

DATA, DATA, DATA….

17

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

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

What are we reading?

20

Mobility Opportunity…Yes, BUT…

• Proactive Mitigation of Risk

• Collaboration –Planners + Lawyers

• Infrastructure

• Education and Outreach

• Data Driven Policies and Regulations

• Sustainability?Source: http://cityobservatory.org

21

INNOVATE THE WHEEL...DON’T TRY TO REINVENT IT

22

HERE TO STAY?

23

WHAT’S NEXT?

Photo Credit: GeekWire Photos / Taylor Soper

24

© 2018 Best Best & Krieger LLP

Best Best & Krieger

Company/BestBestKrieger

@BBKlaw

© 2018 Best Best & Krieger LLP

Greg Rodriguez@smartertranspo

Best Best & Krieger LLP

Washington, D.C.

(202) 370-5308

greg.rodriguez@bbklaw.com

www.bbklaw.com

LOCAL PERSPECTIVE & CONSIDERATIONS

(DOCKLESS SCOOTERS & BICYCLES)

Jessica Sangsvang

Senior Assistant City Attorney

City of Fort Worth, Texas

jessica.sangsvang@fortworthtexas.gov

817.392.6285

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Questions?

43

Jessica Sangsvang

Senior Assistant City Attorney

City of Fort Worth, Texas

jessica.sangsvang@fortworthtexas.gov

817.392.6285

IMLA Dockless

Micromobility

Guidance

Negheen Sanjar

Director of Legal Research

nsanjar@imla.org

(202) 466-5424 ext. 7105

44

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

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

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

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

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

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

Questions? For a free copy of the IMLA Dockless Micromobility

Guidance, contact Negheen Sanjar at

nsanjar@imla.org

51