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.