|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: July 15, 2009
RE: Golf carts and ATVs on city streets
You have the following question: Can the City authorize golf carts and all terrain vehicles (ATVs) to operate on city streets? Ordinance No. 07-07-03 authorizes golf carts and ATVs to operate on the city = s streets (but not on state highways).
The municipal ordinance clearly contravenes Tenn. Code Anno., Title 55, with respect to the kind of vehicles that are permitted B and prohibited B to operate on the highways and streets in Tennessee. Generally, golf carts are not permitted to operate on the state = s highways and streets, including those within, and even with the permission of, a municipality. All terrain vehicles are authorized to operate on the highways and streets of a municipality only within certain extremely narrow exceptions.
Neither the general prohibition on the operation of golf carts on city streets, nor the extremely limited restrictions that apply to the operation of ATVs on city streets, can be set aside e by ordinance, as the City has attempted to do.
The power to control highways and streets rests primarily in the state, which power the legislature can delegate to municipalities. [See City of Chattanooga v. Tennessee Electric Power Co., 112 S.W.2d 385 (1938).] It has been held that A very broad powers of regulation, and wide discretion, in the exercise of the police power, are held to be vested in municipalities in touching the use of its streets. @ [See Steil v. City of Chattanooga, 52 S.W.2d 624, 626 (Tenn. 1941).] It has also been held that the courts will not interfere with the exercise of that discretionary power
except in the case of fraud or a clear abuse of power. Those police powers also extend to state highways running through cities. [See Collier v. Baker, 27 S.W.2d 1085 (1930); Blackburn v. Dillon, 225 S.W.2d 47 (Tenn. 1949).] Finally, it is said in Murray v. City of Nashville, 299 S.W.2d 859 (Tenn. Ct. App. 1956), that, A The right of the City, under its police powers, to regulate traffic on its streets, both as to vehicles and pedestrians, is too well settled to call for discussion. @ [At 173]
However, a municipality must exercise the police power delegated to it by the legislature in the manner directed by the legislate. [Nichols v. Tullahoma Open Door, 640 S.W.2d 12 (Tenn. Ct. App. 1982)] It was also said in State ex rel. Johnson v. Bates, 30 S.W.2d (1930), with respect to a city = s licensing requirements for vehicles for hire that because motor vehicles were A instruments potential of danger to persons on the highways, @ the state could enact such requirements, and:
The Legislature could, in the exercise of the police power, authorize similar regulations, applicable to automobiles operated within the city limits .... But no such regulation could be made by a municipality without statutory authority, and unless it was consistent with public policy and not at variance with the general laws of the state. [At 249] [Citations omitted by me.]
In State v. Booher, 978 S.W.2d 953 (Tenn. Ct. Crim. App. 1998), the court said in response to the argument of a driver cited on the main street of Waverly, Tennessee, for not having a valid vehicle registration or driver = s license that it was unconstitutional for the State of Tennessee to make him acquire a driver = s license and vehicle registration as a condition of traveling upon the public highways of the state, that:
State and local governments possess an inherent power, i.e. police power, to enact reasonable legislation for the health, safety, welfare, morals, or convenience of the public. [Citations omitted by me.] Thus, our legislature, through its police power may prescribe conditions under which the A privilege @ of operating automobiles on public highways may be exercised. Sullins 135 S.W.2d at 932. See also Goats, 34 S.W.2d at 5 891. Nonetheless, such regulations may not be unreasonable, may not violate federal law or state constitutional provisions, as by discriminating between vehicles or owners of the same class; and, in the case of ordinances may not conflict with state statutes. See 60 C.J.S. Motor Vehicles ' 62.....
The appellant challenges various provisions of the Tennessee Motor Vehicle Title and Registration Law. Requiring persons to obtain a driver = s license and to register their automobiles with the state provides a means of identifying the owner of the automobile.... Moreover, because it is a means of guaranteeing minimal level of driver competence, licensing improved safety on our highways.... Thus our state legislature may properly within the scope of its police power enact reasonable regulations requiring licensing and registration of motor vehicles as it furthers the interest of public safety and welfare. [At 956] [Emphases are mine.]
The logical corollary of those cases on the police power of the state is that a city cannot legally contradict the General Assembly where it has passed general legislation that applies to which motor and other vehicles can and cannot operate on the highways and streets of the state,
and the conditions under which they can operate. As we will see below, the General Assembly has spoken clearly about prohibitions and limitations that apply to golf carts and ATVs on those highways and streets.
It has been suggested that there is a distinction between a highway and a city street for the purposes of whether ATVs are permitted on city streets, and that Tenn. Code Anno., ' 55-8- 185 only prohibits ATVs on A highways. @ But for the purposes of the Rules of the Road contained in Tenn. Code Anno., Title 55, Chapter 8, of which Tenn. Code Anno., ' 55-8-185 is one, a A highway @ and a A street @ are interchangeable. They have exactly the same definition: A the entire width between the boundary lines of every way when any part thereto is open to the use of the public for purposes of vehicular travel. @ [See Tenn. Code Anno., ' ' 55-8-101(22) and (63), respectively.] Similarly, Tenn. Code Anno., ' 55-1-116, defines the term A > Highway @ or A street = @ as A the entire width between boundary lines of every way publically maintained, when any part thereof is open to the use of the public for purposes of vehicular travel. @
Golf carts are allowed to operate on the highways and streets, under limited conditions, in a large number of states [See Department of Transportation, National Highway Traffic Safety Administration explanation of 49 CFR Part 571, Docket NO. NHTSA 98-3949, RIN 22127-AG58, 63 FR 33913, June 17, 1998.] But Tennessee is clearly not one of those states. Tenn. Code Anno., Title 55, generally governs the operation of motor and other vehicles on the state = s highways and streets. The term A golf cart @ is defined in Tenn. Code Anno., ' 55-1-123 as A a motor vehicle that is designed and manufactured for operation on a golf course for sporting or recreational purposes and that is not capable of exceeding speeds of twenty miles per hour (20 mph). @ Nothing in Title 55 authorizes the registration or operation of golf carts on the state = s
highways or streets either with, or without, the permission of a municipality. Indeed, the Tennessee Department of Revenue, in Notice No. 08-20, dated September, 2008, says this about golf carts:
Traditional golf carts as defined by Tenn. Code Ann. ' 55-1-123, may not be titled and registered for on road use, unless modified to meet all of the low or medium speed vehicle requirements under Tennessee law and the federal safety standards contained in 49 CFR 571.500.
That policy is consistent with Tenn. Code Anno., ' 55-4-101(a)(1), which provides that, A As a condition precedent to the operation of any motor vehicle upon the streets or highways of this state, the motor vehicle shall be registered as provided in this chapter.... @ But other Tennessee statutes cited below that distinguish between golf carts and A low speed vehicles @ (LSVs) and A medium speed vehicles @ (MSVs) also support that conclusion.
LSVs and MSVs are authorized to use the state = s highways and streets, although the state, counties and municipalities can regulate and even prohibit their use on the highways and streets in their appropriate jurisdictions. [Tenn. Code Anno., ' 55-8-191]
The term A low speed vehicle @ derives from 49 CFR ' 571.3, issued by the National Transportation Safety Administration for the interpretation and application of the National Traffic and Motor Vehicle Safety Act of 1966:
[A] motor vehicle:
(1) That is four wheeled,
(2) Whose speed is attainable in 1.6 km (1 mile) is more than 32 kilometers per hour (20 mile per hour) and not more than 40 kilometers per hour (25 miles per hour) on a paved level surface, and
(3) Whose GVWR is less than 1,367 kilograms (3,000) pounds.
As far as I can determine, the NHTSA has not defined A medium speed vehicle. @ In fact, it recently declined to do so in Federal Register, September 26, 2008 (Nbr. Vol. 73, No. 188). However, as that document points out, a number of states have set standards for MSVs. Apparently, Tennessee = s MSV standards, immediately below, fall into that category. They require that such vehicles also meet the LSV requirements in 49 CFR 571.500.
The terms A low speed vehicles @ and A medium speed vehicles @ are each defined in three different provisions of Tenn Code Anno., Title 55. A A low speed vehicle @ is defined in Tenn. Code Anno., ' ' 55-1-122 and 55-8-101(28), as:
any four-wheeled electric vehicle, excluding golf carts, whose top speed is greater than twenty miles per hour (20 mph) but not greater than twenty five miles per hour (25 mph), including neighborhood electric vehicles. Low speed vehicles must comply with the safety standards in 49 CFR 571.500; [Tenn. Code Anno., ' ' 55-1-122 and 55-8-101(28)]
A Medium speed vehicle @ is defined in Tenn. Code Anno., ' ' 55-1-125 and
any four-wheeled electric or gasoline-powered vehicle, excluding golf carts, whose top speed is greater than thirty miles per hour (30 mph) but not more than thirty-five miles per hours (35 mph) and otherwise meets or exceeds the federal safety standards set forth in 49 CFR 571.500. [Tenn. Code Anno., ' 55-1-125, 55-8-101(30).]
Both of those definitions expressly exclude golf carts. The definitions of low speed vehicles and medium speed vehicles contained in Tenn. Code Anno., ' ' 55-1-122 and 55-1-125 are a part of Title 55 that regulate the titling and registration of motor vehicles. The definitions of LSVs and MSVs contained in Tenn. Code Anno., ' 55-8-101(28) and 55-8-101(30) are a part of Title 55, Title 8, which contains the A Rules of the Road, @ that, for the most part, regulate the operation of motor vehicles on highways and streets of the state. Tenn. Code Anno., ' ' 55-1- 122, 55-1-125, and 55-8-101(28) and 55-8-101(30), also support the conclusion that the use of golf carts on the highways and streets of the state is prohibited, unless they have become LSVs or MSVs, in which case they are technically no longer golf carts (even though they may also be used for that purpose).
But in Tenn. Code Anno., ' ' 55-50-102(31) and (32) A low speed vehicle @ and A medium speed vehicle @ are respectively defined in identical language, except that the phrase A excluding golf carts @ is not contained in those definitions. Tenn. Code Anno., ' ' 55-50-102(31) and 55-50- 102(32) deal with the licensing of drivers rather than the definitions of vehicles.
In order for a golf cart to become a low speed vehicle or a medium speed vehicle, it must comply with federal regulations contained in 49 CFR ' 571.500, which, in Tennessee, requires LSVs and MSVs to meet the following standards:
(5)(a) When tested in accordance with test conditions in S6 and test procedures in S7, the maximum speed attainable in 1.6 km (1 mile) by each low-speed vehicle shall not be more than 40 kilometers per hour (25 miles per hour).
(b) Each low-speed vehicle shall be equipped with:
(2) Front and rear turn signal lamps,
(4) Stop lamps,
(5) Rear reflectors: one red on each side as far to the rear as practicable, and one red on the rear,
(6) An exterior mirror mounted on the driver = s side of the vehicle and either an exterior mirror mounted on the passenger = s side of the vehicle or an exterior mirror,
(7) A parking brake,
(8) A windshield that conforms to the Federal motor vehicle safety standard on glazing materials (49 CFR 571.205),
(9) A Type 1 or type 2 seat belt assembly conforming to Sec. 571.209 of this part, Federal Motor Vehicle Safety standard No. 209, Seat belt assemblies, installed at each designated seating position.
The standards in S6 and S7 follow those above, and are omitted here because they contain testing procedures that are probably not of general interest. I have attached a copy of 49 CFR ' 571.500, which contain those procedures.
Needless to say, most golf carts will not meet those requirements, although probably an increasing number of them have been produced or modified to meet them. As pointed out above, where that is so, they are not technically golf carts.
Driving an unregistered motor vehicle on the highways and streets of the state is a Class C misdemeanor, but the fine is $10 for the first offense, and $20 for the subsequent offenses, in lieu of court appearances. [Tenn. Code Anno., ' 55-4-110]
One other aspect of the use of golf carts on the highways and streets of the state needs attention here: it may be that if a golf cart or a low speed or medium speed vehicle is used as a handicapped person = s mobility machine, it can be used on the highways and streets, perhaps even beyond the limits prescribed by the law. I will not do an analysis of that issue unless it expressly
arises. It is enough to say that the issue has arisen in some places. [See, for example, Young v. City of Claremore, 411 F. Supp. 2d 1295 (N.D. Okla. 2005), and the unreported case of Beckius v. City of Canby, 2008 WL 2575998 (Minn. App. 2008)].
All Terrain Vehicles
Tenn. Code Anno., ' 55-8-185 allows the motor vehicles defined in ' 55-3-11(c)(2) to be operated or driven A upon a highway @ under the limited conditions set out in that statute. Generally, those conditions allow travel on the highway short distances to cross it or to exit or enter areas designated for the operation of off-highway vehicles. The statute also allows off- highway vehicles to travel two specific places:
- State Route 116 between Railroad Street and Beech Grove Lane within the jurisdiction of Lake City in Anderson County.
- Oneida & Western (O&W) Railroad Road from its intersection with Verdun Road southwestern to its terminus, within the jurisdiction of Scott County.
The A off-highway motor vehicles @ defined in Tenn. Code Anno., ' 55-3-101(c)(2) are:
(A) Any motorcycle commonly referred to as a dirt bike;
(B) Any snowmobile or other vehicle designed to travel exclusively over snow or ice;
(C) Any motor vehicle commonly referred to as a sand buggy, dune buggy, or all terrain vehicle; or
(D) Similar types of motor vehicles designed primarily for off-highway use.
I will assume that there is little or no debate about what constitutes an all terrain vehicle. The literature is replete with descriptions and definitions of them. Even the untrained eye can distinguish them as being designed for off-road use.
All of the limitations and restrictions on the use of A off highway motor vehicle, @ including ATVs, on the highways and the streets of the state presently apply inside and outside of municipalities.
The violation of Tenn. Code Anno., ' 55-8-185 is a Class C misdemeanor punishable by a fine of not more than $50.