No. 8 6 - 3 0 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
CITY OF RILLINGS,
Plaintiff and Respondent,
-vs-
RAYMONE K. PEETE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sandall, Cavan, Smith, Howard & Grubbs; ,John J.
Cavan, Billings, Montana
For Respondent:
Bonnie Sutherland., City Attorney's Office,
Billings, Montana
Submitted: September 18, 1986
Decided: November 2 4 , 1986
Filed:
p :, , ,1986
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Raymond K. Peete, defendant, was convicted in Billings
City Court of violating S 61-8-401 (1)(a), MCA, driving while
under the influence of alcohol. He appealed his conviction
to Yellowstone County District Court. Defendant filed a
motion to dismiss, alleging that he was not operating a motor
vehicle "upon the ways of the state open to the public," as
required by the statute. The motion to dismiss was denied.
Defendant was again convicted of violating § 61-8-401 (1) (a),
MCA. Defendant appeals the District Court's failure to grant
his motion to dismiss. We affirm.
Defendant's motion to dismiss was accompanied by a
stipulation of facts. The following facts are taken from
that stipulation:
Defendant was arrested at approximately 10:30 p.m.,
August 2, 1984, in the Northern Hotel parking garage for
driving while under the influence of alcohol.
The parking garage is a privately owned and operated
facility. It consists of five levels of parking spaces. The
spaces on the ground level and the below-ground level are
rented on a monthly basis. The top three levels are
available to the general public for an hourly fee. After
5:00 p.m., the general public may also use unoccupied spaces
on the two lower levels.
Use of the garage is controlled by employees of the
owner of the garage. The parking attendant occupies a ticket
booth located between the entry and exit lanes of the
facility. Patrons entering the garage receive a ticket from
the attendant who is stationed at the ticket booth. Upon
exiting the parking facility, the patron must stop at the
ticket booth, show the attendant his ticket and pay the
appropriate fee. All patrons use the same entry and exit.
However, monthly renters need not stop at the booth.
2
Defendant rents a parking space on the below-ground
level. On t h e n i g h t he was a r r e s t e d , d e f e n d a n t was e x i t i n g
the lowest l e v e l v i a a n up-ramp when h i s v e h i c l e c o l l i d e d
w i t h a m o t o r c y c l e parked i n an a r e a n e a r t h e ramp r e s e r v e d
f o r b i c y c l e s and m o t o r c y c l e s . Defendant a d v i s e d t h e p a r k i n g
attendant of the accident and was subsequently arrested.
The s o l e i s s u e r a i s e d on a p p e a l i s :
Did d e f e n d a n t , Raymond P e e t e , o p e r a t e a motor
v e h i c l e "upon t h e ways o f t h e s t a t e open t o t h e
p u b l i c " , w i t h i n t h e meaning o f 5 61-8-401, MCA,
when h e o p e r a t e d h i s v e h i c l e w i t h i n a p r i v a t e l y
owned and o p e r a t e d p a r k i n g g a r a g e i n B i l l i n g s ,
Montana?
The s t a t u t e under which d e f e n d a n t was c h a r g e d ,
5 61-8-401, MCA, states:
Persons under t h e i n f l u e n c e of a l c o h o l o r drugs.
(1) I t i s u n l a w f u l and p u n i s h a b l e a s p r o v i d e d i n
61-8-714 f o r any p e r s o n who i s under t h e i n f l u e n c e
of:
(a) a l c o h o l t o d r i v e o r be i n a c t u a l p h y s i c a l
c o n t r o l o f a v e h i c l e upon t h e ways of t h i s s t a t e
open t o t h e p u b l i c .
"Ways o f t h i s s t a t e open t o t h e p u b l i c " i s d e f i n e d a t
,
5 61-8-101 (1) MCA, as "any highway, road, alley, lane,
p a r k i n g a r e a , o r o t h e r p u b l i c o r p r i v a t e p l a c e a d a p t e d and
fitted for public travel that is in common use by the
public. "
Defendant contends that the Northern Hotel's parking
g a r a g e i s n e i t h e r " a d a p t e d and f i t t e d f o r p u b l i c t r a v e l " nor
" i n common u s e by t h e p u b l i c " b e c a u s e t h e r e i s o n l y one way
to access the facility, access is achieved only upon
o b t a i n i n g a t i c k e t from t h e p a r k i n g a t t e n d a n t and u s e o f t h e
f a c i l i t y r e q u i r e s payment o f a monthly o r h o u r l y f e e . The
City of Billings contends that the statute refers to -
.any
parking a r e a , including p r i v a t e parking garages; o r , i n the
alternative, that the garage is "adapted and fitted for
p u b l i c t r a v e l t h a t i s i n common u s e by t h e p u b l i c " b e c a u s e
t h e general public i s permitted t o use the facility for a
small fee.
Section 61-8-401(1), MCA, was enacted in its present
form by the 1983 Montana legislature. Because the language
defining "the ways of this state open to the public" is less
than clear, especially the term "in common use by the
public", we turn to the legislative history to determine what
the legislature had in mind.
Our statute is patterned after a City of Seattle traffic
ordinance, Seattle Traffic Code S S 11.12.1020 and 11.14.715.
. . . any road, alley, lane, parking area or any
place, private or otherwise, adapted to and fitted
for travel, that is in common use by the public
with the consent, express or implied, of the owner
or owners thereof.
The initial legislation before our 1983 legislature
included the words "with the express or implied consent of
the owner" at the end. The phrase was deleted, however, to
eliminate the burden of proving consent when the arrest was
made in a private parking lot.
[Betty Wing, Deputy County Attorney for Missoula
County] also advised that when they go to court
they have to prove everything that is in this
language and the language on the end says "with the
express or implied consent of the owner"; she did
not think that this adds anything, and it is just
one more thing they are going to have to prove.
She indicated that they would have to bring in the
manager of K-Mart to show that they do have express
or implied consent and this would just be another
hassle for them.
CHAIRMAN BROWN said that he has problems
understanding the language "with the express or
implied consent of the owner" as this could get in
the way in connection with parking lots, the lot in
front of the bar, or the lot at the shopping center
and he wondered if ... any of this would be a
major problem with this language left as it is.
MS. WING replied that it is hard to look at the
future, but it appears to be one more conflict that
can come up in a trial and she felt that clearly,
in any parking lot or driveway, [one] does have the
express or implied consent of the owner but it gets
technical in legal terms to prove what implied
consent is.
House Judiciary Committee Minutes, March 11, 1983, pp. 4, 6.
Furthermore, when Chairman Brown questioned whether "the
language 'in common use by the public' would imply that the
bar parking lot, etc. would not be affected", Representative
Keyser claimed that the whole phrase "fitted for public
travel that is in common use by the public", would cover
private parking lots. House Judiciary Committee Minutes,
March 22, 1983, p. 16. Granted, a legislator's thoughts on
what a statute means are not binding on this Court. However,
from the discussion had in both the House and Senate
Judiciary Committees with respect to this statute, it is
clear that the statute was intended to include the operation
of a motor vehicle within a private parking lot, as long as
that lot is fitted for public travel and in common use by the
public. The Northern Hotel's parking garage fits the
definition.
This decision is consistent with Washington court
opinions interpreting the City of Seattle's traffic
ordinance.
In City of Seattle v. Wright (Wash. 1967), 433 P.2d 906,
defendant was arrested for driving, while intoxicated, upon
an improved, 25 foot wide, hard-surface road owned by the
Union Pacific Railroad. One of the four entries onto the
two-block road was posted "Private Thoroughfare - 10 M.P.H."
However, local residents parked along the sides and used the
road to access their homes. Commercial vehicles also
regularly used the road. The Washington Supreme Court found
the road to be a "road . . . adapted to and fitted for
travel, that is in common use by the public with the consent,
express or implied, of the owner. . ." because its surface
was similar to nearby public thoroughfares and because the
only restriction on travel imposed by the owner was a ten
mile per hour speed limit.
Likewise, here, the parking garage is paved. Driving
areas are clearly indicated and the only restriction on
travel imposed by the owner is that of the payment of a fee.
City of Seattle v. Tolliver (Wash.App. 1982) , 641 P. 2d
719, concerned an individual charged with operating a
vehicle, while intoxicated, upon a private parking lot located
at a major intersection. The parking lot was held by the
court to be an area covered by the traffic ordinance because
of its easy access to adjoining streets and its history of
use by the public frequenting two taverns.
Similarly, the Northern Hotel's parking garage not only
has a history of use by the public, the public is encouraged
to use the facility. The facility is obviously fitted for
public travel and in common use by the public. It is thus
covered by §fj 61-8-101 (1) and 61-8-401 (1)(a), MCA.
Defendant's conviction is a£
We concur:
I