A look into the regulation of e-scooters
San Diego, CA
Update 8/20/2019
San Diego’s Development Services Department (DSD) has begun the process to revoke Lime’s operation permit due to violations of the municipal code. According to the DSD Lime was found in violation of the city’s scooter geofencing, speed and operating restrictions rules. In response, Lime developed on-street corrals to keep riders off the sidewalks and sent Lime staff into the city to promote safe riding. Lime also installed a deterrent to prevent people from drinking and driving by making riders confirm after 10pm that they are not intoxicated.
A hearing has been requested by the DSD to revoke Lime’s permit but the hearing has not been scheduled. The permits are issued every January and July and last for six months. If a company’s permit is revoked then they must wait six months until they can reapply. If the permit is revoked then Lime would have 10 days to remove all Lime scooters from San Diego or the city can dispose of them and charge Lime for the disposal.
Earlier this year in June of 2019 the e-scooters companies were faced with new regulations. Speed limits were set in locations with high pedestrian traffic. E-scooter providers had three hours to retrieve scooters that were not operational before they were impounded by the city with a $65 fee to retrieve and $1 storage fee per day. E-scooter providers are required to secure a six month permit at a cost of $5,141 as well as pay $150 per device annually. If the e-scooter provider has a program for low income riders they are eligible for a $15 reduction in the vehicle fee. E-scooter providers must also hold commercial general liability insurance of two million per occurrence, four million aggregate and a four million umbrella policy. E-scooter providers must share anonymized data on regular basis (fleet size, how often devices are used, trips and parking locations, accidents and maintenance.)
https://www.nbcsandiego.com/news/local/City-Takes-Steps-to-Revoke-Limes-Operation-Permit-555182641.html
Cite as: Ben Satterthwaite, San Diego, CA, in University of South Carolina School of Law, Dockless Mobility: A Look into the Regulation of E-scooters, https://docklessmobility.org/case-studies/san-diego-ca/ (last updated 2019).
In 2018, San Diego began making headlines for being inundated with E-scooters. Despite concern from a number of community members, a “hands-off” approach to regulation was adopted in an effort to foster a growth-friendly market for the new urban mobility technology.[1] To this aim, the strategy has worked, as the city has one of the most developed dockless-mobility markets to date. The popularity of dockless mobility in San Diego has been heavily influenced by its status as a prime tourism destination, with the city hosting some 35.8 million visitors per year.[2]
Naturally, adopting a “wait-and-see” approach to E-scooter regulation came with a number of side effects. Pedestrian walkways quickly became occluded with these gadgets. This angered a diverse array of residents, from disabled individuals unable to navigate the public sidewalks, to business owners who were constantly required to rid their storefronts of the devices. In fact, the problem became so commonplace that private businesses were started specifically to remove scooters from private property.[3]
The scooters took its toll on public safety as well, emergency room visits soared.[4] In the last quarter of 2018, e-scooter injuries accounted for 4% of all admitted trauma patients at Scripps Memorial.[5] Just before the year’s end, the first fatality on a Lime scooter would occur in San Diego.[6] Ironically, California subsequently changed its laws to make helmets noncompulsory for adults over the age of 18 riding e-scooters.[7]
Rider education has also proven difficult in San Diego. The problem is compounded by the many tourists who, in addition to being unfamiliar with the city, are often inexperienced scooter riders and unaware of the applicable legal and regulatory scheme. Between 2014 and 2017, police issued just 11 scooter-related citations. In an 8-month period in 2018 there were 1,560 citations. Roughly two thirds of these were issued to tourists. Roughly 90% of those citations went to adults for not wearing a helmet (which later became legal in January 2019).[8]
Even the most intuitive of traffic laws have been broken by scooter riders. There have been several reports of E-scooter riders being seen on the freeway, and at least one freeway collision.[9]
San Diego Objectives
In order to stimulate the growth of this new technology, San Diego very explicitly chose to adopt a “hands-off” approach to dockless mobility. It would be difficult to argue this strategy did not have significant negative externalities, particularly in the early stages of their implementation. However, if the goal was to be a scooter-friendly city, then San Diego is a resounding success. The city’s pro-growth approach has attracted a great many E-scooter vendors and has allowed the new industry to grow at an unprecedented rate.
As scooter use grew, Mayor Faulconer and the City Council proposed a number of regulatory changes to curb resident complaints. Currently, there are regulations in San Diego that specifically apply to E-scooters. The devices may not block ramps, fire hydrants, wheelchair access, pedestrian rights-of-way, doorways, driveways, and emergency access zones.[10] Furthermore, E-scooters may only be ridden on a street with a speed limit of 25 mph or less. At the time of this writing, the city is evaluating a package of ordinances specific to E-scooters and dockless mobility that mirror much of the regulation seen in other cities such as permitting requirements, indemnification, mandatory rider education measures, in-app parking restrictions, and speed geo-fencing.
Legal Challenges
The City of San Diego and scooter companies operating therein are currently defending a class action lawsuit brought by disabled plaintiffs claiming the city’s failure to adequately regulate the scooters has violated their rights under the Americans with Disabilities and Rehabilitation Acts.[11] Generally, the complaint alleges that the proliferation of fast-traveling scooters on public pedestrian walkways and the tendency for these scooters to become barriers has become a major hindrance to the well-being of individuals with mobility and vision impairments. In addition to monetary relief, the plaintiffs seek an order to enjoin the scooter vendor defendants from continuing to operate on public pedestrian walkways throughout the city.
The Uncertain
The San Diego Active Transportation and Infrastructure Committee met on Feb. 20, 2019, to discuss dockless mobility and voted unanimously to advance Mayor Faulconer’s recommendations to the full city council. The proposal mirrors Faulconer’s initial plan from 2018 taking a multi-faceted approach to addressing the community’s concerns on dockless mobility. Under the plan, companies would be required to prevent riders from ending rides in high-traffic areas. They would also be required to restrict speeds with geo-fences that slow scooters to 8 mph in crowded pedestrian areas. Education is also a big part of the plan, as scooters would be labeled with large-font “Riding on Sidewalks is Prohibited.”
Finally, a certain level of cooperation with the city would be mandated. Each operator would be required to indemnify the city against liability claims and hold a liability insurance policy. The operators would also be required to share data on fleet size, device use, and other points of interest. Further, a permitting system would be set up wherein companies would be required to obtain operating permits every 6 months and pay an annual fixed price for each unit.
Conclusion
San Diego consciously chose to invite dockless mobility companies to change how its people get from A to B. It is likely this policy has been an aggravating factor for the growing pains the city has suffered from. The bigger question is “how much?”
Whether or not San Diego is labeled as a success or failure is largely dependent on who is asked and how success is being measured. If success is measured by the passing of targeted municipal regulations that address dockless mobility issues, the city is a failure. On the flip side, if it is evaluated based on how well it cultivated an environment that allowed dockless mobility to thrive, San Diego is an unparalleled model city.
Regardless of whether this is a success story or a failure, it is worth noting that San Diego has several other factors at play that negatively affect how smoothly it adapts to micro-mobility. Most notably, the city sees over 35 million tourists a year. Even with the most robust rider education regulations in place, this factor still puts them at a disadvantage with respect to compliance. It also has an exceptionally agreeable climate that not only lends itself to more outdoor activity than the average city, but it also occurs year-round. This is compounded by a number of very pedestrian-friendly neighborhoods such as La Jolla, East Village, Harborview, Marina, and Gaslamp. Accordingly, in acknowledging San Diego’s struggles with E-scooters, it is important to also consider factors outside of regulatory shortcomings that adversely affect measures of success.
In conclusion, San Diego has been heavily criticized for its regulatory shortcomings, and this isn’t undeserved. On the other hand, one would be hard-pressed to find another city in the United States that has embraced the fruits of this new technology more. Therefore, one might also conclude that San Diego is a beacon for the embrace of E-scooters.
[1] Smith J.E., Unlike Other California Cities, San Diego Has Been Slower to Regulate E-Scooters, San Diego Tribune (Republished by Govtech), Sept. 17, 2018, http://www.govtech.com/fs/transportation/Unlike-Other-California-Cities-San-Diego-Has-Been-Slower-to-Regulate-E-Scooters.html
[2] San Diego Tourism Office, Industry Research, https://www.sandiego.org/about/industry-research.aspx
[3] Hoffman M., Company Goes After Scooters Parked on Private Property, KPBS, Jan. 24, 2019. https://www.kpbs.org/news/2019/jan/24/company-goes-after-dockless-scooters-private-prope/
[4] San Diego Doctor Absolutely Certain Scooter Death Iminent, NBC7 San Diego, Sept. 7, 2018. https://www.nbcsandiego.com/news/San-Diego-Doctor-Absolutely-Certain-Electric-Scooter-Death-Imminent-492743791.html
[5] Levitan C., SCOOTING PAINS: Early study results in from e-scooter injuries at La Jolla and San Diego-area hospitals, Feb. 6, 2019, https://www.lajollalight.com/news/sd-cm-ljl-scooter-injuries-20190204-story.html
[6] Shanahan, K, Family of man killed in scooter crash speaks out, Fox 5 San Diego, Dec. 26, 2018, https://fox5sandiego.com/2018/12/26/family-of-man-killed-in-scooter-crash-speaks-out/
[7] Assem. Bill 2989, 2017-18, Chapter 552, 2018 Cal. Statute.
[8] Schroeder L., E-scooter tickets soar, San Diego Union Tribune, Feb. 3, 2019, https://enewspaper.sandiegouniontribune.com/desktop/sdut/default.aspx?&edid=21af30b5-e085-4b56-919c-f100d4802b8c
[9] Nakano R., Self Z., CHP Catches People Riding Electric Scooters on Freeway, ABC10 News San Diego, Nov. 14, 2018, https://www.10news.com/news/dangerous-scooters-on-freeway ; Hope H., Driver claims he collided with Bird scooter on San Diego freeway, CBS8 San Diego, Feb. 28, 2019. http://www.cbs8.com/story/40041024/driver-claims-he-collided-with-bird-scooter-on-san-diego-freeway
[10] Twitter Post, SD Partnership, https://twitter.com/SDPartnership/status/974696830167498754/photo/1?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed&ref_url=https%3A%2F%2Fwww.sandiegouniontribune.com%2Fopinion%2Fthe-conversation%2Fsd-dockless-bikes-san-diego-how-do-they-work-20180316-htmlstory.html
[11] In addition to these claims, Plaintiffs are also bringing causes of action via California Government Codes §§ 4450 and 11135 and assert causes of action under California Civil Codes §§ 51 et seq and 54 et seq.