By Tommy Acosta
Mea Culpa! Mea Culpa! Mea Maxima Culpa! I screwed up. Blew it. Totally made a fool of myself. Missed the boat.
I am talking about my editorial on the OHV fight, No Legal Traction on OHVs.
I assumed that it was ADOT that would make a decision on whether the city could legally ban off road vehicles from our public roads like S.R. 89A and S.R. 179.
Man was I off. ADOT has nothing to do with allowing or disallowing the city to do so.
ADOT’s response to me when I asked them to clarify their position, was curt and to the point.
“ADOT designs, builds and maintains the state highway system,” I was told. “It is not our place to offer an opinion on how state law might apply in this matter.”
It was a totally “duh” moment for me when I realized that that the decision or judgement on the OHV ordinance, would involve the state and not ADOT.
Chagrinned I stand.
The crux of the matter then is whether the city can effectively use a number of standing state laws that can be interpreted to determine whether the city can legally ban the vehicles or not.
Could the city use these laws to justify their ordinance banning the OHVs and prevail in a court? Because for sure, if the city goes ahead with the ordinance, in court is where it will eventually be settled.
Let’s start with the Arizona statute that grants the right of ATV enthusiasts to drive on public roads. That’s ARS§28-1174 that specifically reads in part: A person shall drive an off-highway vehicle only on roads, trails, routes or areas that are opened as indicated in rules or regulations of a federal agency, this state, a county or a municipality.
That’s pretty clear. No ambiguity here.
Now let’s address the first statue the city could use to promulgate the ban.
That would be ARS§28-982 which reads in part: If at any time there is reasonable cause to believe that a vehicle is unsafe or is not equipped as required by law or that a vehicle’s equipment is not in proper adjustment or repair, the superintendent of the highway patrol, members of the highway patrol, other officers and employees of the department of public safety as the director may designate and any peace officer may require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference to the inspection as may be appropriate.
Basically, this gives law enforcement officials like highway patrol officers, public-safety employees or peace officers the right to stop and inspect vehicles they in their judgement deem unsafe. Municipalities are not mentioned.
It is the admission by OHV rental companies that the vehicles are not meant to be driven on roads, that the city is hanging its hat on. The city is deeming the vehicles unsafe even though none of those companies have said they are. They are only admitting that driving OHVs on public roads is not recommended and that the vehicles are not specifically designed to do so.
It’s a high bar for the city to convince a judge that this statute could be stretched to allow a city to usurp ARS§28 -1174, especially since ARS§28 -982 is only meant for law enforcement personnel.
Then there is ARS§28-981. This statute reads in part : A person shall not drive or move on a highway a motor vehicle, tow truck, trailer, semitrailer or pole trailer or any combination of a motor vehicle, tow truck, trailer, semitrailer or pole trailer unless: the equipment on the vehicle is in good working order.”
Since these OHVs don’t come with turn signals, other than for defective headlights and brake lights, or driving irresponsibly, city law enforcement officers don’t have the right to pull them over. It’s a far stretch for a judge to grant the city the right to ban the OHVs for broken head and tail-light violations. Again, local authorities such as cities are not mentioned.
Saving the best for last, there is ARS§28-626 which reads in part: [A local authority] Shall adopt ordinances or regulations relating to the control and movement of traffic, including parking or standing ordinances or regulations that provide for the imposition of civil penalties on the violation of the ordinance or regulation.
This statue clearly gives the city a right to adopt an ordinance that allows it to regulate and control the movement of traffic. However, it includes nothing that could be used by the city to negate the intent of ARS§28-1174. The statute addresses the movement of traffic and not what’s allowed to be driven on the thoroughfares.
Even if the court entertains the right of the city to ban specific vehicles from public roads, the city would have to prove that there is a clear and present danger to the citizens of Sedona presented by the OHVs. With no fatalities or serious injuries incurred by riders in collisions with other OHVs or cars, the chance of the city prevailing is quite slim.
The city could argue its desire to be pre-emptive in protecting its citizens, but without hard evidence of past harms or future dangers, it will not prevail.
Once again, my apologies to my readers and ADOT for stating that ADOT had a horse in this race.
Still, it may be wise for ADOT to closely follow this effort by the city to ban OHVs from its public roads, and ensure that the public is not given the false impression that it backs the city should the city go ahead and impose the ban without getting a court ruling or approval from the state.
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9 Comments
Interesting that ADOT doesn’t want to get into the frey, as ADOT issues all the certificates for vehicle registration and use.
Your plates, you titles and registrations and even the Off Road Tag that must be on your plate.
It’s really a rather confusing system and I suppose that they are trying to follow a hodge-podge of laws that have flowed out of the legislature.
Also OHV and ATV seems to be the same. Unless you get into court. They aren’t.
I think in Sedona most if not all companies advertise ATV rentals. Look up ATV.
My jeep is an ATV, Ford Bronco is an ATV, in fact any pickup truck with 4 wheel drive, some carry the moniker “Off Road” is also an ATV.
I own a quad, not a side by side, even though safe as a motorcycle, plated and authorized for street use. Probably not a good idea for interstate traffic.
However to take it on a “dirt road”, it has to have an OHV sticker. Another little tax.
But if I live in a rural area, dirt roads are all over the place. No OHV sticker needed.
So is the sticker just for NFS operation? ADOT collects the money, but does it share with NFS? We only at best have a few NFS enforcement people for the Coconino National Forest.
Since my jeep, and 4×4 pickups can and go onto NFS roads, why don’t they have to have an OHV sticker? They are ATVs.
A 3 wheel Can AM is certified as a motorcycle. No bumpers that would meet street standards. Motorcycles.
Would a Motorcycle with a side car be OK on a dirt road? Sure. How about a NFS road, that’s dirt, and there are NFS roads that are paved.
Would an ATV be allowed in a national park on a paved or unpaved road? NPS is under Department of Interior. A 4×4 truck is classified as a ATV. Stay out of parks? Probably not.
Maybe the city could use a noise ordinance for all NON motorcycle vehicles. If noise is the issue, better mufflers can be installed.
If the city thinks that the major manufacturers of these vehicles are going to rollover and set a nationwide legal example….and that these businesses are just going to fold their tents, then big shock awaits.
The city has a crazy budget now for 9764 people, but if anyone thinks that this is a walk in the park certainly knows nothing about precedent and our legal system.
Read all the laws. don’t cherrypick. OHVs are street legal under Arizona law 28-1177 part C.
28-1177. Off-highway vehicle user fee; indicia; registration; state trust land recreational permit; exception
A. A person shall not operate or allow the operation of an all-terrain vehicle or an off-highway vehicle in this state without either a resident or nonresident off-highway vehicle user indicia issued by the department if the all-terrain vehicle or off-highway vehicle meets both of the following criteria:
1. Is designed by the manufacturer primarily for travel over unimproved terrain.
2. Has an unladen weight of two thousand five hundred pounds or less.
B. A person shall apply to the department of transportation for a resident or nonresident off-highway vehicle user indicia by submitting an application prescribed by the department of transportation and a user fee for the indicia in an amount to be determined by the director of the department of transportation in cooperation with the director of the Arizona game and fish department and the Arizona state parks board. The resident or nonresident off-highway vehicle user indicia is valid for one year from the date of issuance and may be renewed. The department shall prescribe by rule the design and placement of the indicia.
C. When a person pays for a resident off-highway vehicle user indicia pursuant to this section, the person may request a motor vehicle registration if the vehicle meets all equipment requirements to be operated on a highway pursuant to article 16 of this chapter. If a person submits a signed affidavit to the department affirming that the vehicle meets all of the equipment requirements for highway use and that the vehicle will be operated primarily off of highways, the department shall register the vehicle for highway use and the vehicle owner is not required to pay the registration fee prescribed in section 28-2003. This subsection does not apply to vehicles that as produced by the manufacturer meet the equipment requirements to be operated on a highway pursuant to article 16 of this chapter.
D. The director shall deposit, pursuant to sections 35-146 and 35-147, seventy percent of the user fees collected pursuant to this section in the off-highway vehicle recreation fund established by section 28-1176 and thirty percent of the user fees collected pursuant to this section in the Arizona highway user revenue fund.
E. The Arizona game and fish department may provide for the purchase of nonresident off-highway vehicle user indicia and may impose an additional service fee in an amount to be determined by the Arizona game and fish commission by rule. The Arizona game and fish department shall deposit, pursuant to sections 35-146 and 35-147, the service fees collected pursuant to this subsection in the game and fish fund established by section 17-261.
F. An occupant of an off-highway vehicle with a resident or nonresident off-highway vehicle user indicia issued pursuant to this section who crosses state trust lands must comply with all of the rules and requirements under a state trust land recreational permit. All occupants of an off-highway vehicle with a resident or nonresident off-highway vehicle user indicia shall obtain a state trust land recreational permit from the state land department for all other authorized recreational activities on state trust land.
G. This section does not apply to off-highway vehicles, all-terrain vehicles or off-road recreational motor vehicles that are used off-highway exclusively for agricultural, ranching, construction, mining, mining exploration or building trade purposes.
H. In consultation with the department of transportation, the Arizona game and fish department may adopt rules necessary to implement this section.
The state issues OHV Decals if ATVs are street legal by the equipment they have installed:
https://azstateparks.com/ohv-registration
The OHV Decal is a sticker which must be purchased annually to allow your OHV to be operated within Arizona. The decal will need to be applied to the upper left corner of your license plate, and your license plate will need to be visibly displayed on the rear of your OHV. The dollars collected through the purchase of the OHV Decal are considered an OHV user fee and apply to all OHVs meeting the bulleted criteria in the following paragraph. The OHV Decal should not be confused with “registration.” Registration is required if you want your OHV to be “street legal” (legal to be operated on paved and improved roads and streets).
The OHV Legislation used the word “indicia” to describe what needs to be put on the title of registration plates of covered OHV’s. “Indicia” means distinctive marks or indication. It’s also commonly referred to as a “sticker” or “decal.”
Arizona bureaucrats know what they’re doing and have been issuing OHV decals since 2009, before most of the current city council moved here. Sedona has too many weekend lawyers and ex-customs agent mayors to know what to do with.
Try buying a decal on https://servicearizona.com/ . It’s clearly legal.
I got home after speed walking three miles today and saw the Sedona.biz article Mr. Acosta wrote about ATVs and Off Highway Vehicles.
Well, the first thing that hurt my eye was the notion that the author believes there is a difference between the ADOT and the State of Arizona. The Arizona Department of Transportation is an agency of the State of Arizona. Simply put, the ADOT is the State.
People need to understand that federal law must be consistent with the Constitution of the United States. State law must be consistent with federal law and local laws must be consistent with state law. This is a basic understanding of governance.
The major legal issue that stands brightly is the First Amendment Right to Travel and Right of Association. This is not an absolute right but subject to compelling state interests that requires proposed laws to be narrowly tailored to advance the desired public interest.
A very common compelling state interest is public safety. In this case the proposed ordinance refers to the safety of citizens, the safety of the environment and the maintenance of public roadways.
Regulation of ATVs and ROVs Off Roads is hardly a new issue. These vehicles are regulated in every State and Territory in the nation. Indeed, the United States Consumer Product Commission (USCPC) has documented the risks of riding ATCs and other off highway vehicles. The USCPSC found that between 2015 through 2017, ATVs accounted for 97 percent of total off-highway vehicle emergency department injuries. The Commission found that were about 1700 ATV-related fatalities and 445 ROV-related fatalities during this period.
ATV’s and ROVS become more dangerous when children drive adult sized vehicles and when more than one passenger ride on vehicles built for a single rider. Children under 16 accounted for the third-highest percentage of OHV deaths by age group; almost 50 percent of this group were children under 12.
The Commission reported that it is extremely dangerous to use ATVs and ROVs on paved roads intended for vehicles. They are simply not designed for that purpose. Because ATVs and ROVs can be unwieldy on paved surfaces, the risk of collision with a car, truck or other vehicle is significantly higher.
My cursory research on this issue, makes it very clear to me that: (1) the regulation of ATVs and ROVs easily qualify as a “compelling state interest”; and (2) all states and territories in the United States regulate ATVs and ROVs. Arizona is no exception. Arizona currently has regulations governing these vehicles. I note that regulations differ from state to state.
So, on the issue, to wit: Can the City of Sedona prohibit ATVs and ROVs from operating on paved roadways? The answer is a resounding yes.
Can Sedona require safety modifications to provide for paved roadway travel? Yes.
As I have found Arizona to be an unimaginative State, I would refer researchers to the State of California and Texas where you may peruse regulations on these types of vehicles. This is where most of the Arizona laws are lifted.
My biggest objection to the proposed Sedona regulation is the provision that upon repeat violation the City makes it a criminal act, that is, a misdemeanor. Meaning a criminal record and exposure to probation or jail.
Sedona Citizens should protest the city employee who drafted this provision and fire them. There are many mindless “wanna be” people that make almost every aspect of human life criminal if you don’t do what Big Brother wants. The criminalization of this conduct will affect our children the most. A one thousand dollar fine and suspension, then revocation of driving privileges is more than adequate to handle this issue.
In New York, proposed laws require a memorandum of law to ensure the new law is consistent with state and federal laws and passes constitutional muster.
The person who drafted this proposed law undoubtedly has such a memorandum and it would serve the author well to obtain it so that they are on all four when he talks about it, write about it, and has a desire to do so competently.
You can put turn signal kits on these machines. I have one on mine and they cost about $150. You can build them yourself for about $50.
You can also put Light Truck tires on them. Same “For Highway Service” tires that you might find on a compact pickup or SUV.
This ban is not about safety, but do wonder what is pushing council to take it up. Is this just a case of the people want something done, so we are going to do it knowing it will be overturned by the courts. So the Mayor and Council can say “We Tried”.
You could put both items on a lawnmower but that doesn’t make them street legal. Same with ATV/OHV’s! If it’s not street legal it is because they are not made to DOT road safe specifications.
The city does not have to get anyone’s permission to adopt the ordinance. It can adopt anything it wants as long as it’s not breaking the law. Once it does adopt the ordinance the city will be sued. The Goldwater Foundation will mobilize and someone will introduce a bill in the legislature to prevent any municipality in Arizona to ban the off road vehicles from their roads. It’s kind of like what happened with short term rentals.
It is interesting that all of the above posters neglected to mention that all of the manufacturers say “Never operate this vehicle on any public street, road or highway”. So, just because AZ State or DOT says it’s ok, does that mean that if one of your drivers hits me, I can’t sue you ya butt? Afterall the manufacturers say don’t do it. The City says don’t do it but YOU KNOW ALL so you should take the hit.
Sheesh….
There seems to be a point of view that seems to condone the distinct and foreseeable possibility that an ATV/OHV that is riding on public streets will be T-Boned… It is not an “IF”, it is a “WHEN” . And, since ATV/OHV’s don’t have Federal Highway Safety approved with crumple zones, etc… contrary to yet another ridiculous RRN article/opinion piece about ATV’s being “6 times safer than cars”… this is a human tragedy ready for the making. And, we can avoid it.
This IS a public safety issue – both Sedonan’s who use ATV/OHV’s in town and our valued visitors.
I don’t get this push back on common sense… in fact, I will make the point a different way: I will challenge anyone to pick their ATV/OHV of choice – I will buy an old beater car – with seat belts, crash bags, crumple zones and a Federal Safety stamp of approval – and, T-Bone you going 25mph (not the 35mph speed limit) on 89A. (Remember the recent horrific car crash that flipped the car at the corner of 89A/Airport road? That car was still solid and the crumple zones worked). Let’s have our friends videotape it and post it on YouTube. Of course, I will ask you to sign a liability release first stating that you and/or any of your surviving relatives cannot sue me for any damages. After all, aren’t ATV/OHV’s 6 times safer than cars? Any takers?
Of course, I am jesting to make a point and I don’t have a beater car for this experiment… but do you get the point about liability and how any such ATV disaster will cost in human life/injury? And, since many ATV owners are now on-record and on camera stating that there has been and is no danger for ATV riding on the streets – I’m not a lawyer – but, aren’t they in a treble-damages situation now if an accident occurs, right? And, if the ATV rental company who rented the ATV/OHV to the crash victim(s) survives the (very predictable) huge lawsuit, then they and all other other ATV rental companies will face skyrocketing insurance bills that could kill all of the ATV/OHV rental businesses. Not good. This isn’t good for our ATV rental companies for several reasons. And, I am not cynical enough to believe that our local ATV rental companies would put their profits over the safety of their customers by condoning their rental ATV/OHV’s running around on public streets with known safety concerns.
Why don’t the ATV rental companies work with the City Council/City of Sedona NOW – instead of fighting the common sense public safety issue – to put together a solution that will both SUPPORT PUBLIC SAFETY AND SUPPORT THE ATV/OHV BUSINESSES?
With THAT resolution being properly reported with a balanced approach and with facts – I would buy another RRN paper to read it.