Florida Senate - 2011                                    SB 1008
       
       
       
       By Senator Simmons
       
       
       
       
       22-00611A-11                                          20111008__
    1                        A bill to be entitled                      
    2         An act relating to liens for recovering, towing, or
    3         storing vehicles or vessels; amending s. 713.78, F.S.;
    4         defining the term “department”; revising procedures
    5         for notification concerning liens for the recovery of
    6         certain costs for recovering, towing, or storing a
    7         vehicle or vessel; removing the authority of the
    8         Department of Highway Safety and Motor Vehicles to
    9         release information concerning the insurance company;
   10         establishing fees for the lien notification; revising
   11         requirements governing the contents of the
   12         notification; revising requirements for locating and
   13         notifying persons about the impending sale of an
   14         unclaimed vehicle or vessel or its contents; revising
   15         requirements concerning public notice of the impending
   16         sale; removing duplicative provisions concerning
   17         rulemaking by the department; amending s. 715.07,
   18         F.S.; conforming cross-references to changes made by
   19         the act; providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Subsections (1), (4), and (6), paragraphs (b)
   24  and (c) of subsection (11), paragraph (d) of subsection (12),
   25  and paragraphs (a) and (g) of subsection (13) of section 713.78,
   26  Florida Statutes, are amended to read:
   27         713.78 Liens for recovering, towing, or storing vehicles
   28  and vessels.—
   29         (1) For the purposes of this section, the term:
   30         (a) “Department” means the Department of Highway Safety and
   31  Motor Vehicles.
   32         (b)(a) “Vehicle” means any mobile item, whether motorized
   33  or not, which is mounted on wheels.
   34         (c)(b) “Vessel” means every description of watercraft,
   35  barge, and airboat used or capable of being used as a means of
   36  transportation on water, other than a seaplane or a “documented
   37  vessel” as defined in s. 327.02(9).
   38         (d)(c) “Wrecker” means any truck or other vehicle which is
   39  used to tow, carry, or otherwise transport motor vehicles or
   40  vessels upon the streets and highways of this state and which is
   41  equipped for that purpose with a boom, winch, car carrier, or
   42  other similar equipment.
   43         (4)(a) Any person regularly engaged in the business of
   44  recovering, towing, or storing vehicles or vessels who comes
   45  into possession of a vehicle or vessel pursuant to subsection
   46  (2), and who claims a lien for recovery, towing, or storage
   47  services, shall give notice to the registered owner, the
   48  insurance company insuring the vehicle notwithstanding the
   49  provisions of s. 627.736, and to all persons claiming a lien
   50  thereon by submitting an application for notifications to the
   51  department on a form prescribed by the department within 7
   52  business days after the date of storage of the vehicle or vessel
   53  and shall maintain an invoice for such services with the
   54  signature of the operator who provided the service or the
   55  signature of an employee of the business attesting to the
   56  accuracy of the information on the invoice, as disclosed by the
   57  records in the Department of Highway Safety and Motor Vehicles
   58  or of a corresponding agency in any other state.
   59         (b) When a Whenever any law enforcement agency authorizes
   60  the removal of a vehicle or vessel or a whenever any towing
   61  service, garage, repair shop, or automotive service, storage, or
   62  parking place notifies the law enforcement agency of possession
   63  of a vehicle or vessel pursuant to s. 715.07(2)(a)2., the law
   64  enforcement agency of the jurisdiction where the vehicle or
   65  vessel is stored shall contact the department of Highway Safety
   66  and Motor Vehicles, or the appropriate agency of the state of
   67  registration, if known, within 24 hours through the medium of
   68  electronic communications, giving the full description of the
   69  vehicle or vessel. Upon receipt of the full description of the
   70  vehicle or vessel, the department shall search its files to
   71  determine the owner’s name, the insurance company insuring the
   72  vehicle or vessel, and whether any person has filed a lien upon
   73  the vehicle or vessel as provided in s. 319.27(2) and (3) and
   74  notify the applicable law enforcement agency within 72 hours.
   75  The person in charge of the towing service, garage, repair shop,
   76  or automotive service, storage, or parking place shall obtain
   77  such information from the applicable law enforcement agency
   78  within 5 days after the date of storage and shall give notice
   79  pursuant to paragraph (a). The department may release the
   80  insurance company information to the requestor notwithstanding
   81  the provisions of s. 627.736.
   82         (c) Upon receipt of a valid and complete application for
   83  notifications, the required notification fee of $4, and the
   84  service fees required under s. 320.04, the department shall
   85  notify Notice by certified mail shall be sent within 7 business
   86  days after the date of storage of the vehicle or vessel to the
   87  registered owner, the insurance company insuring the vehicle
   88  notwithstanding the provisions of s. 627.736, and all persons of
   89  record claiming a lien against the vehicle or vessel. The
   90  notification must indicate the company or individual who has It
   91  shall state the fact of possession of the vehicle or vessel,
   92  that a lien as provided in subsection (2) is claimed, that
   93  charges have accrued and the amount thereof, that the lien is
   94  subject to enforcement pursuant to law, and that the owner or
   95  lienholder, if any, has the right to a hearing as set forth in
   96  subsection (5), and that any vehicle or vessel that which
   97  remains unclaimed, or for which the charges for recovery,
   98  towing, or storage services remain unpaid, may be sold free of
   99  all prior liens after 35 days after the date of the notification
  100  if the vehicle or vessel is more than 3 years of age or after 50
  101  days after the date of notification if the vehicle or vessel is
  102  3 years of age or less.
  103         (d) If the department is unable attempts to locate the name
  104  and address of the owner or lienholder prove unsuccessful, the
  105  department shall notify the towing-storage operator. Upon
  106  receipt of such notice, the towing-storage operator shall
  107  conduct, after 7 working days, excluding Saturday and Sunday, of
  108  the initial tow or storage, notify the public agency of
  109  jurisdiction where the vehicle or vessel is stored in writing by
  110  certified mail or acknowledged hand delivery that the towing
  111  storage company has been unable to locate the name and address
  112  of the owner or lienholder and a physical search of the vehicle
  113  or vessel and make a good faith effort to determine has
  114  disclosed no ownership information and a good faith effort has
  115  been made. The towing-storage operator shall send notice of the
  116  sale by certified mail to any potential owner, lienor, or
  117  insurance company discovered through the physical search and
  118  good faith effort.
  119         (e) As used in For purposes of this paragraph (d) and
  120  subsection (9), the term “good faith effort” means that the
  121  following checks have been performed by the company to establish
  122  prior state of registration and for title:
  123         1. Check of vehicle or vessel for any type of tag, tag
  124  record, temporary tag, or regular tag.
  125         2. Check of law enforcement report for tag number or other
  126  information identifying the vehicle or vessel, if the vehicle or
  127  vessel was towed at the request of a law enforcement officer.
  128         3. Check of trip sheet or tow ticket of tow truck operator
  129  to see if a tag was on vehicle or vessel at beginning of tow, if
  130  private tow.
  131         4. If there is no address of the owner on the impound
  132  report, check of law enforcement report to see if an out-of
  133  state address is indicated from driver license information.
  134         5. Check of vehicle or vessel for inspection sticker or
  135  other stickers and decals that may indicate a state of possible
  136  registration.
  137         6. Check of the interior of the vehicle or vessel for any
  138  papers that may be in the glove box, trunk, or other areas for a
  139  state of registration.
  140         7. Check of vehicle for vehicle identification number.
  141         8. Check of vessel for vessel registration number.
  142         9. Check of vessel hull for a hull identification number
  143  that which should be carved, burned, stamped, embossed, or
  144  otherwise permanently affixed to the outboard side of the
  145  transom or, if there is no transom, to the outmost seaboard side
  146  at the end of the hull which that bears the rudder or other
  147  steering mechanism.
  148         (6) Any vehicle or vessel that which is stored pursuant to
  149  subsection (2) and that which remains unclaimed, or for which
  150  reasonable charges for recovery, towing, or storing remain
  151  unpaid, and any contents not released pursuant to subsection
  152  (10), may be sold by the owner or operator of the storage space
  153  for such towing or storage charge after 35 days after from the
  154  date notification was sent under subsection (4) that time the
  155  vehicle or vessel is stored therein if the vehicle or vessel is
  156  more than 3 years of age or after 50 days after the date that
  157  such notification was sent following the time the vehicle or
  158  vessel is stored therein if the vehicle or vessel is 3 years of
  159  age or less. The sale shall be at public sale for cash. If the
  160  date of the sale was not included in the notice required in
  161  subsection (4), notice of the sale shall be given to the person
  162  in whose name the vehicle or vessel is registered and to all
  163  persons claiming a lien on the vehicle or vessel as shown on the
  164  records of the Department of Highway Safety and Motor Vehicles
  165  or of the corresponding agency in any other state. Notice shall
  166  be sent by certified mail to the owner of the vehicle or vessel
  167  and the person having the recorded lien on the vehicle or vessel
  168  at the address shown on the records of the registering agency
  169  and shall be mailed not less than 15 days before the date of the
  170  sale. After diligent search and inquiry, if the name and address
  171  of the registered owner or the owner of the recorded lien cannot
  172  be ascertained, the requirements of notice by mail may be
  173  dispensed with. In addition to the notice by mail, public notice
  174  of the time and place of sale shall be made by publishing a
  175  notice thereof one time, at least 10 days before prior to the
  176  date of the sale, in a newspaper of general circulation in the
  177  county in which the sale is to be held. The public notice must
  178  include the vehicle or vessel identification or hull number and
  179  a description of the vehicle or vessel, including make, model,
  180  and year of manufacture. The proceeds of the sale, after payment
  181  of reasonable towing and storage charges, and costs of the sale,
  182  in that order of priority, shall be deposited with the clerk of
  183  the circuit court for the county where the sale was held if the
  184  owner or lienholder is absent, and the clerk shall hold such
  185  proceeds subject to the claim of the owner or lienholder legally
  186  entitled thereto. The clerk shall be entitled to receive 5
  187  percent of such proceeds for the care and disbursement thereof.
  188  The certificate of title issued under this law shall be
  189  discharged of all liens unless otherwise provided by court
  190  order. The owner or lienholder may file a complaint after the
  191  vehicle or vessel has been sold in the county court of the
  192  county in which it is stored. Upon determining the respective
  193  rights of the parties, the court may award damages, attorney’s
  194  fees, and costs in favor of the prevailing party.
  195         (11)
  196         (b) The department of Highway Safety and Motor Vehicles
  197  shall charge a fee of $3 for each certificate of destruction. A
  198  service charge of $4.25 shall be collected and retained by the
  199  tax collector who processes the application.
  200         (c) The Department of Highway Safety and Motor Vehicles may
  201  adopt such rules as it deems necessary or proper for the
  202  administration of this subsection.
  203         (12)
  204         (d) Employees of the department of Highway Safety and Motor
  205  Vehicles and law enforcement officers may are authorized to
  206  inspect the records of any person regularly engaged in the
  207  business of recovering, towing, or storing vehicles or vessels
  208  or transporting vehicles or vessels by wrecker, tow truck, or
  209  car carrier, to ensure compliance with the requirements of this
  210  section. Any person who fails to maintain records, or fails to
  211  produce records when required in a reasonable manner and at a
  212  reasonable time, commits a misdemeanor of the first degree,
  213  punishable as provided in s. 775.082 or s. 775.083.
  214         (13)(a) Upon the department’s receipt by the department of
  215  Highway Safety and Motor Vehicles of written notice from a
  216  wrecker operator who claims a wrecker operator’s lien under
  217  paragraph (2)(c) or paragraph (2)(d) for recovery, towing, or
  218  storage of an abandoned vehicle or vessel upon instructions from
  219  any law enforcement agency, for which a certificate of
  220  destruction has been issued under subsection (11), the
  221  department shall place the name of the registered owner of that
  222  vehicle or vessel on the list of those persons who may not be
  223  issued a license plate or revalidation sticker for any motor
  224  vehicle under s. 320.03(8). If the vehicle or vessel is owned
  225  jointly by more than one person, the name of each registered
  226  owner shall be placed on the list. The notice of wrecker
  227  operator’s lien shall be submitted on forms provided by the
  228  department, which must include:
  229         1. The name, address, and telephone number of the wrecker
  230  operator.
  231         2. The name of the registered owner of the vehicle or
  232  vessel and the address to which the wrecker operator provided
  233  notice of the lien to the registered owner under subsection (4).
  234         3. A general description of the vehicle or vessel,
  235  including its color, make, model, body style, and year.
  236         4. The vehicle identification number (VIN); registration
  237  license plate number, state, and year; validation decal number,
  238  state, and year; vessel registration number; hull identification
  239  number; or other identification number, as applicable.
  240         5. The name of the person or the corresponding law
  241  enforcement agency that requested that the vehicle or vessel be
  242  recovered, towed, or stored.
  243         6. The amount of the wrecker operator’s lien, not to exceed
  244  the amount allowed by paragraph (b).
  245         (g) The department of Highway Safety and Motor Vehicles may
  246  adopt rules pursuant to ss. 120.536(1) and 120.54 to implement
  247  this section subsection.
  248         Section 2. Paragraph (a) of subsection (2) of section
  249  715.07, Florida Statutes, is amended to read:
  250         715.07 Vehicles or vessels parked on private property;
  251  towing.—
  252         (2) The owner or lessee of real property, or any person
  253  authorized by the owner or lessee, which person may be the
  254  designated representative of the condominium association if the
  255  real property is a condominium, may cause any vehicle or vessel
  256  parked on such property without her or his permission to be
  257  removed by a person regularly engaged in the business of towing
  258  vehicles or vessels, without liability for the costs of removal,
  259  transportation, or storage or damages caused by such removal,
  260  transportation, or storage, under any of the following
  261  circumstances:
  262         (a) The towing or removal of any vehicle or vessel from
  263  private property without the consent of the registered owner or
  264  other legally authorized person in control of that vehicle or
  265  vessel is subject to strict compliance with the following
  266  conditions and restrictions:
  267         1.a. Any towed or removed vehicle or vessel must be stored
  268  at a site within a 10-mile radius of the point of removal in any
  269  county of 500,000 population or more, and within a 15-mile
  270  radius of the point of removal in any county of less than
  271  500,000 population. That site must be open for the purpose of
  272  redemption of vehicles on any day that the person or firm towing
  273  such vehicle or vessel is open for towing purposes, from 8:00
  274  a.m. to 6:00 p.m., and, when closed, shall have prominently
  275  posted a sign indicating a telephone number where the operator
  276  of the site can be reached at all times. Upon receipt of a
  277  telephoned request to open the site to redeem a vehicle or
  278  vessel, the operator shall return to the site within 1 hour or
  279  she or he will be in violation of this section.
  280         b. If no towing business providing such service is located
  281  within the area of towing limitations set forth in sub
  282  subparagraph a., the following limitations apply: any towed or
  283  removed vehicle or vessel must be stored at a site within a 20
  284  mile radius of the point of removal in any county of 500,000
  285  population or more, and within a 30-mile radius of the point of
  286  removal in any county of less than 500,000 population.
  287         2. The person or firm towing or removing the vehicle or
  288  vessel shall, within 30 minutes after completion of such towing
  289  or removal, notify the municipal police department or, in an
  290  unincorporated area, the sheriff, of such towing or removal, the
  291  storage site, the time the vehicle or vessel was towed or
  292  removed, and the make, model, color, and license plate number of
  293  the vehicle or description and registration number of the vessel
  294  and shall obtain the name of the person at that department to
  295  whom such information was reported and note that name on the
  296  trip record.
  297         3. A person in the process of towing or removing a vehicle
  298  or vessel from the premises or parking lot in which the vehicle
  299  or vessel is not lawfully parked must stop when a person seeks
  300  the return of the vehicle or vessel. The vehicle or vessel must
  301  be returned upon the payment of a reasonable service fee of not
  302  more than one-half of the posted rate for the towing or removal
  303  service as provided in subparagraph 6. The vehicle or vessel may
  304  be towed or removed if, after a reasonable opportunity, the
  305  owner or legally authorized person in control of the vehicle or
  306  vessel is unable to pay the service fee. If the vehicle or
  307  vessel is redeemed, a detailed signed receipt must be given to
  308  the person redeeming the vehicle or vessel.
  309         4. A person may not pay or accept money or other valuable
  310  consideration for the privilege of towing or removing vehicles
  311  or vessels from a particular location.
  312         5. Except for property appurtenant to and obviously a part
  313  of a single-family residence, and except for instances when
  314  notice is personally given to the owner or other legally
  315  authorized person in control of the vehicle or vessel that the
  316  area in which that vehicle or vessel is parked is reserved or
  317  otherwise unavailable for unauthorized vehicles or vessels and
  318  that the vehicle or vessel is subject to being removed at the
  319  owner’s or operator’s expense, any property owner or lessee, or
  320  person authorized by the property owner or lessee, before prior
  321  to towing or removing any vehicle or vessel from private
  322  property without the consent of the owner or other legally
  323  authorized person in control of that vehicle or vessel, must
  324  post a notice meeting the following requirements:
  325         a. The notice must be prominently placed at each driveway
  326  access or curb cut allowing vehicular access to the property,
  327  within 5 feet from the public right-of-way line. If there are no
  328  curbs or access barriers, the signs must be posted not less than
  329  one sign for each 25 feet of lot frontage.
  330         b. The notice must clearly indicate, in not less than 2
  331  inch high, light-reflective letters on a contrasting background,
  332  that unauthorized vehicles will be towed away at the owner’s
  333  expense. The words “tow-away zone” must be included on the sign
  334  in not less than 4-inch high letters.
  335         c. The notice must also provide the name and current
  336  telephone number of the person or firm towing or removing the
  337  vehicles or vessels.
  338         d. The sign structure containing the required notices must
  339  be permanently installed with the words “tow-away zone” not less
  340  than 3 feet and not more than 6 feet above ground level and must
  341  be continuously maintained on the property for not less than 24
  342  hours before prior to the towing or removal of any vehicles or
  343  vessels.
  344         e. The local government may require permitting and
  345  inspection of these signs before prior to any towing or removal
  346  of vehicles or vessels is being authorized.
  347         f. A business with 20 or fewer parking spaces satisfies the
  348  notice requirements of this subparagraph by prominently
  349  displaying a sign stating “Reserved Parking for Customers Only
  350  Unauthorized Vehicles or Vessels Will be Towed Away At the
  351  Owner’s Expense” in not less than 4-inch high, light-reflective
  352  letters on a contrasting background.
  353         g. A property owner towing or removing vessels from real
  354  property must post notice, consistent with the requirements in
  355  sub-subparagraphs a.-f., which apply to vehicles, that
  356  unauthorized vehicles or vessels will be towed away at the
  357  owner’s expense.
  358  
  359  A business owner or lessee may authorize the removal of a
  360  vehicle or vessel by a towing company when the vehicle or vessel
  361  is parked in such a manner that restricts the normal operation
  362  of business; and if a vehicle or vessel parked on a public
  363  right-of-way obstructs access to a private driveway the owner,
  364  lessee, or agent may have the vehicle or vessel removed by a
  365  towing company upon signing an order that the vehicle or vessel
  366  be removed without a posted tow-away zone sign.
  367         6. Any person or firm that tows or removes vehicles or
  368  vessels and proposes to require an owner, operator, or person in
  369  control of a vehicle or vessel to pay the costs of towing and
  370  storage before prior to redemption of the vehicle or vessel must
  371  file and keep on record with the local law enforcement agency a
  372  complete copy of the current rates to be charged for such
  373  services and post at the storage site an identical rate schedule
  374  and any written contracts with property owners, lessees, or
  375  persons in control of property which authorize such person or
  376  firm to remove vehicles or vessels as provided in this section.
  377         7. Any person or firm towing or removing any vehicles or
  378  vessels from private property without the consent of the owner
  379  or other legally authorized person in control of the vehicles or
  380  vessels shall, on any trucks, wreckers as defined in s.
  381  713.78(1) s. 713.78(1)(c), or other vehicles used in the towing
  382  or removal, have the name, address, and telephone number of the
  383  company performing such service clearly printed in contrasting
  384  colors on the driver and passenger sides of the vehicle. The
  385  name shall be in at least 3-inch permanently affixed letters,
  386  and the address and telephone number shall be in at least 1-inch
  387  permanently affixed letters.
  388         8. Vehicle entry for the purpose of removing the vehicle or
  389  vessel shall be allowed with reasonable care on the part of the
  390  person or firm towing the vehicle or vessel. Such person or firm
  391  shall be liable for any damage occasioned to the vehicle or
  392  vessel if such entry is not in accordance with the standard of
  393  reasonable care.
  394         9. When a vehicle or vessel has been towed or removed
  395  pursuant to this section, it must be released to its owner or
  396  custodian within one hour after requested. Any vehicle or vessel
  397  owner or agent shall have the right to inspect the vehicle or
  398  vessel before accepting its return, and no release or waiver of
  399  any kind which would release the person or firm towing the
  400  vehicle or vessel from liability for damages noted by the owner
  401  or other legally authorized person at the time of the redemption
  402  may be required from any vehicle or vessel owner, custodian, or
  403  agent as a condition of release of the vehicle or vessel to its
  404  owner. A detailed, signed receipt showing the legal name of the
  405  company or person towing or removing the vehicle or vessel must
  406  be given to the person paying towing or storage charges at the
  407  time of payment, whether requested or not.
  408         Section 3. This act shall take effect October 1, 2011.