Senate Bill sb0492

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    Florida Senate - 2005                                   SB 492

    By Senator Bennett





    21-194A-05

  1                      A bill to be entitled

  2         An act relating to wrecker operators; amending

  3         s. 323.001, F.S.; limiting certain towing and

  4         storage rates; amending s. 713.78, F.S.;

  5         conforming provisions related to recovering,

  6         towing, or storing vessels; providing for

  7         attorney's fees; amending s. 715.07, F.S.;

  8         conforming provisions related to towing vessels

  9         parked on private property; providing an

10         effective date.

11  

12  Be It Enacted by the Legislature of the State of Florida:

13  

14         Section 1.  Subsection (1) of section 323.001, Florida

15  Statutes, is republished, and paragraph (c) of subsection (2)

16  of that section is amended, to read:

17         323.001  Wrecker operator storage facilities; vehicle

18  holds.--

19         (1)  An investigating agency may place a hold on a

20  motor vehicle stored within a wrecker operator's storage

21  facility for a period not to exceed 5 days, excluding holidays

22  and weekends, unless extended in writing.

23         (2)  The investigating agency must notify the wrecker

24  operator in writing within 5 days, excluding holidays and

25  weekends, whether the hold is to be continued. If no

26  notification follows this period of time, the wrecker operator

27  may release the vehicle to the designated person pursuant to

28  s. 713.78.

29         (c)  The towing and storage rates for the owner or

30  lienholder of the held vehicle shall not exceed the contract

31  or county rates for the investigating agency.

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 1         Section 2.  Subsections (2), (4), (5), (7), and (10) of

 2  section 713.78, Florida Statutes, are amended to read:

 3         713.78  Liens for recovering, towing, or storing

 4  vehicles and vessels.--

 5         (2)  Whenever a person regularly engaged in the

 6  business of transporting vehicles or vessels by wrecker, tow

 7  truck, or car carrier recovers, removes, or stores a vehicle,

 8  vessel, or mobile home upon instructions from:

 9         (a)  The owner thereof; or

10         (b)  The owner or lessor, or a person authorized by the

11  owner or lessor, of property on which such vehicle or vessel

12  is wrongfully parked, and such removal is done in compliance

13  with s. 715.07; or

14         (c)  Any law enforcement agency; or

15         (d)  A mobile home park owner as defined in s. 723.003

16  who has a current writ of possession for a mobile home lot

17  pursuant to s. 723.061,

18  

19  she or he shall have a lien on such vehicle or vessel for a

20  reasonable towing fee and for a reasonable storage fee; except

21  that no storage fee shall be charged if such vehicle is stored

22  for less than 6 hours.

23         (4)(a)  Any person regularly engaged in the business of

24  recovering, towing, or storing vehicles or vessels who comes

25  into possession of a vehicle or vessel pursuant to subsection

26  (2), and who claims a lien for recovery, towing, or storage

27  services, shall give notice to the registered owner, the

28  insurance company insuring the vehicle notwithstanding the

29  provisions of s. 627.736, and to all persons claiming a lien

30  thereon, as disclosed by the records in the Department of

31  

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 1  Highway Safety and Motor Vehicles or of a corresponding agency

 2  in any other state.

 3         (b)  Whenever any law enforcement agency authorizes the

 4  removal of a vehicle or vessel or whenever any towing service,

 5  garage, repair shop, or automotive service, storage, or

 6  parking place notifies the law enforcement agency of

 7  possession of a vehicle or vessel pursuant to s.

 8  715.07(2)(a)2., the applicable law enforcement agency shall

 9  contact the Department of Highway Safety and Motor Vehicles,

10  or the appropriate agency of the state of registration, if

11  known, within 24 hours through the medium of electronic

12  communications, giving the full description of the vehicle or

13  vessel. Upon receipt of the full description of the vehicle or

14  vessel, the department shall search its files to determine the

15  owner's name, the insurance company insuring the vehicle or

16  vessel, and whether any person has filed a lien upon the

17  vehicle or vessel as provided in s. 319.27(2) and (3) and

18  notify the applicable law enforcement agency within 72 hours.

19  The person in charge of the towing service, garage, repair

20  shop, or automotive service, storage, or parking place shall

21  obtain such information from the  applicable law enforcement

22  agency within 5 days from the date of storage and shall give

23  notice pursuant to paragraph (a). The department may release

24  the insurance company information to the requestor

25  notwithstanding the provisions of s. 627.736.

26         (c)  Notice by certified mail, return receipt

27  requested, shall be sent within 7 business days after the date

28  of storage of the vehicle or vessel to the registered owner,

29  the insurance company insuring the vehicle notwithstanding the

30  provisions of s. 627.736, and all persons of record claiming a

31  lien against the vehicle or vessel.  It shall state the fact

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 1  of possession of the vehicle or vessel, that a lien as

 2  provided in subsection (2) is claimed, that charges have

 3  accrued and the amount thereof, that the lien is subject to

 4  enforcement pursuant to law, and that the owner or lienholder,

 5  if any, has the right to a hearing as set forth in subsection

 6  (5), and that any vehicle or vessel which remains unclaimed,

 7  or for which the charges for recovery, towing, or storage

 8  services remain unpaid, may be sold free of all prior liens

 9  after 35 days if the vehicle or vessel is more than 3 years of

10  age or after 50 days if the vehicle or vessel is 3 years of

11  age or less.

12         (d)  If attempts to locate the name and address of the

13  owner or lienholder prove unsuccessful, the towing-storage

14  operator shall, after 7 working days, excluding Saturday and

15  Sunday, of the initial tow or storage, notify the public

16  agency of jurisdiction in writing by certified mail or

17  acknowledged hand delivery that the towing-storage company has

18  been unable to locate the name and address of the owner or

19  lienholder and a physical search of the vehicle or vessel has

20  disclosed no ownership information and a good faith effort has

21  been made. For purposes of this paragraph and subsection (9),

22  "good faith effort" means that the following checks have been

23  performed by the company to establish prior state of

24  registration and for title:

25         1.  Check of vehicle or vessel for any type of tag, tag

26  record, temporary tag, or regular tag.

27         2.  Check of law enforcement report for tag number or

28  other information identifying the vehicle or vessel, if the

29  vehicle or vessel was towed at the request of a law

30  enforcement officer.

31  

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 1         3.  Check of trip sheet or tow ticket of tow truck

 2  operator to see if a tag was on vehicle or vessel at beginning

 3  of tow, if private tow.

 4         4.  If there is no address of the owner on the impound

 5  report, check of law enforcement report to see if an

 6  out-of-state address is indicated from driver license

 7  information.

 8         5.  Check of vehicle or vessel for inspection sticker

 9  or other stickers and decals that may indicate a state of

10  possible registration.

11         6.  Check of the interior of the vehicle or vessel for

12  any papers that may be in the glove box, trunk, or other areas

13  for a state of registration.

14         7.  Check of vehicle for vehicle identification number.

15         8.  Check of vessel for vessel registration number.

16         9.  Check of vessel hull for a hull identification

17  number which should be carved, burned, stamped, embossed, or

18  otherwise permanently affixed to the outboard side of the

19  transom or, if there is no transom, to the outmost seaboard

20  side at the end of the hull that bears the rudder or other

21  steering mechanism.

22         (5)(a)  The owner of a vehicle or vessel removed

23  pursuant to the provisions of subsection (2), or any person

24  claiming a lien, other than the towing-storage operator,

25  within 10 days after the time she or he has knowledge of the

26  location of the vehicle or vessel, may file a complaint in the

27  county court of the county in which the vehicle or vessel is

28  stored or in which the owner resides to determine if her or

29  his property was wrongfully taken or withheld from her or him.

30         (b)  Upon filing of a complaint, an owner or lienholder

31  may have her or his vehicle or vessel released upon posting

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 1  with the court a cash or surety bond or other adequate

 2  security equal to the amount of the charges for towing or

 3  storage and lot rental amount to ensure the payment of such

 4  charges in the event she or he does not prevail.  Upon the

 5  posting of the bond and the payment of the applicable fee set

 6  forth in s. 28.24, the clerk of the court shall issue a

 7  certificate notifying the lienor of the posting of the bond

 8  and directing the lienor to release the vehicle or vessel. At

 9  the time of such release, after reasonable inspection, she or

10  he shall give a receipt to the towing-storage company reciting

11  any claims she or he has for loss or damage to the vehicle or

12  vessel or the contents thereof.

13         (c)  Upon determining the respective rights of the

14  parties, the court may award damages, attorney's fees, and

15  costs in favor of the prevailing party.  In any event, the

16  final order shall provide for immediate payment in full of

17  recovery, towing, and storage fees by the vehicle or vessel

18  owner or lienholder; or the agency ordering the tow; or the

19  owner, lessee, or agent thereof of the property from which the

20  vehicle or vessel was removed.

21         (7)(a)  A wrecker operator recovering, towing, or

22  storing vehicles or vessels is not liable for damages

23  connected with such services, theft of such vehicles or

24  vessels, or theft of personal property contained in such

25  vehicles or vessels, provided that such services have been

26  performed with reasonable care and provided, further, that, in

27  the case of removal of a vehicle or vessel upon the request of

28  a person purporting, and reasonably appearing, to be the owner

29  or lessee, or a person authorized by the owner or lessee, of

30  the property from which such vehicle or vessel is removed,

31  such removal has been done in compliance with s. 715.07.

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 1  Further, a wrecker operator is not liable for damage to

 2  vehicles, vessels, or cargo which is connected with such

 3  services when complying with the lawful directions of a law

 4  enforcement officer to remove a vehicle stopped, standing, or

 5  parked upon a street or highway in such a position as to

 6  obstruct the normal movement of traffic or in such a condition

 7  as to create a hazard to other traffic upon the street or

 8  highway.

 9         (b)  For the purposes of this subsection, a wrecker

10  operator is presumed to use reasonable care to prevent the

11  theft of a vehicle or vessel or of any personal property

12  contained in such vehicle stored in the wrecker operator's

13  storage facility if all of the following apply:

14         1.  The wrecker operator surrounds the storage facility

15  with a chain-link or solid-wall type fence at least 6 feet in

16  height;

17         2.  The wrecker operator has illuminated the storage

18  facility with lighting of sufficient intensity to reveal

19  persons and vehicles at a distance of at least 150 feet during

20  nighttime; and

21         3.  The wrecker operator uses one or more of the

22  following security methods to discourage theft of vehicles or

23  vessels or of any personal property contained in such vehicles

24  or vessels stored in the wrecker operator's storage facility:

25         a.  A night dispatcher or watchman remains on duty at

26  the storage facility from sunset to sunrise;

27         b.  A security dog remains at the storage facility from

28  sunset to sunrise;

29         c.  Security cameras or other similar surveillance

30  devices monitor the storage facility; or

31  

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 1         d.  A security guard service examines the storage

 2  facility at least once each hour from sunset to sunrise.

 3         (c)  Any law enforcement agency requesting that a motor

 4  vehicle be removed from an accident scene, street, or highway

 5  must conduct an inventory and prepare a written record of all

 6  personal property found in the vehicle before the vehicle is

 7  removed by a wrecker operator. However, if the owner or driver

 8  of the motor vehicle is present and accompanies the vehicle,

 9  no inventory by law enforcement is required. A wrecker

10  operator is not liable for the loss of personal property

11  alleged to be contained in such a vehicle when such personal

12  property was not identified on the inventory record prepared

13  by the law enforcement agency requesting the removal of the

14  vehicle.

15         (10)  Persons who provide services pursuant to this

16  section shall permit vehicle or vessel owners or their agents,

17  which agency is evidenced by an original written copy a

18  writing acknowledged by the owner before a notary public or

19  other person empowered by law to administer oaths, to inspect

20  the towed vehicle or vessel and shall release to the owner or

21  agent the vehicle, vessel, or all personal property not

22  affixed to the vehicle or vessel which was in the vehicle or

23  vessel at the time the vehicle or vessel came into the custody

24  of the person providing such services.

25         Section 3.  Section 715.07, Florida Statutes, is

26  amended to read:

27         715.07  Vehicles or vessels parked on private property;

28  towing.--

29         (1)  As used in this section, the term "vehicle" means

30  any mobile item which normally uses wheels, whether motorized

31  or not.

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 1         (2)  The owner or lessee of real property, or any

 2  person authorized by the owner or lessee, which person may be

 3  the designated representative of the condominium association

 4  if the real property is a condominium, may cause any vehicle

 5  or vessel parked on such property without her or his

 6  permission to be removed by a person regularly engaged in the

 7  business of towing vehicles or vessels, without liability for

 8  the costs of removal, transportation, or storage or damages

 9  caused by such removal, transportation, or storage, under any

10  of the following circumstances:

11         (a)  The towing or removal of any vehicle or vessel

12  from private property without the consent of the registered

13  owner or other legally authorized person in control of that

14  vehicle or vessel is subject to strict compliance with the

15  following conditions and restrictions:

16         1.a.  Any towed or removed vehicle or vessel must be

17  stored at a site within a 10-mile radius 10 miles of the point

18  of removal in any county of 500,000 population or more, and

19  within a 15-mile radius 15 miles of the point of removal in

20  any county of less than 500,000 population. That site must be

21  open for the purpose of redemption of vehicles on any day that

22  the person or firm towing such vehicle or vessel is open for

23  towing purposes, from 8:00 a.m. to 6:00 p.m., and, when

24  closed, shall have prominently posted a sign indicating a

25  telephone number where the operator of the site can be reached

26  at all times.  Upon receipt of a telephoned request to open

27  the site to redeem a vehicle or vessel, the operator shall

28  return to the site within 1 hour or she or he will be in

29  violation of this section.

30         b.  If no towing business providing such service is

31  located within the area of towing limitations set forth in

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 1  sub-subparagraph a., the following limitations apply:  any

 2  towed or removed vehicle or vessel must be stored at a site

 3  within a 20-mile radius 20 miles of the point of removal in

 4  any county of 500,000 population or more, and within a 30-mile

 5  radius 30 miles of the point of removal in any county of less

 6  than 500,000 population.

 7         2.  The person or firm towing or removing the vehicle

 8  or vessel shall, within 30 minutes after of completion of such

 9  towing or removal, notify the municipal police department or,

10  in an unincorporated area, the sheriff, of such towing or

11  removal, the storage site, the time the vehicle or vessel was

12  towed or removed, and the make, model, color, and license

13  plate number of the vehicle or description and registration

14  number of the vessel and shall obtain the name of the person

15  at that department to whom such information was reported and

16  note that name on the trip record.

17         3.  If the registered owner or other legally authorized

18  person in control of the vehicle or vessel arrives at the

19  scene prior to removal or towing of the vehicle or loading or

20  connecting to the vessel, the vehicle or vessel shall be

21  disconnected from the towing or removal apparatus, and that

22  person shall be allowed to remove the vehicle or vessel from

23  the property without interference upon the payment of a

24  reasonable service fee of not more than one-half of the posted

25  rate for such towing service as provided in subparagraph 6.,

26  for which a receipt shall be given, unless that person refuses

27  to remove the vehicle or vessel that which is otherwise

28  unlawfully parked.

29         4.  The rebate or payment of money or any other

30  valuable consideration from the individual or firm towing or

31  removing vehicles or vessels to the owners or operators of the

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 1  premises from which the vehicles or vessels are towed or

 2  removed, for the privilege of removing or towing those

 3  vehicles or vessels, is prohibited.

 4         5.  Except for property appurtenant to and obviously a

 5  part of a single-family residence, and except for instances

 6  when notice is personally given to the owner or other legally

 7  authorized person in control of the vehicle or vessel that the

 8  area in which that vehicle or vessel is parked is reserved or

 9  otherwise unavailable for unauthorized vehicles or vessels and

10  that the vehicle or vessel is subject to being removed at the

11  owner's or operator's expense, any property owner or lessee,

12  or person authorized by the property owner or lessee, prior to

13  towing or removing any vehicle or vessel from private property

14  without the consent of the owner or other legally authorized

15  person in control of that vehicle or vessel, must post a

16  notice meeting the following requirements:

17         a.  The notice must be prominently placed at each

18  driveway access or curb cut allowing vehicular access to the

19  property, within 5 feet from the public right-of-way line.  If

20  there are no curbs or access barriers, the signs must be

21  posted not less than one sign for each 25 feet of lot

22  frontage.

23         b.  The notice must clearly indicate, in not less than

24  2-inch high, light-reflective letters on a contrasting

25  background, that unauthorized vehicles or vessels will be

26  towed away at the owner's expense.  The words "tow-away zone"

27  must be included on the sign in not less than 4-inch high

28  letters.

29         c.  The notice must also provide the name and current

30  telephone number of the person or firm towing or removing the

31  vehicles or vessels, if the property owner, lessee, or person

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 1  in control of the property has a written contract with the

 2  towing company.

 3         d.  The sign structure containing the required notices

 4  must be permanently installed with the words "tow-away zone"

 5  not less than 3 feet and not more than 6 feet above ground

 6  level and must be continuously maintained on the property for

 7  not less than 24 hours prior to the towing or removal of any

 8  vehicles or vessels.

 9         e.  The local government may require permitting and

10  inspection of these signs prior to any towing or removal of

11  vehicles or vessels being authorized.

12         f.  A business with 20 or fewer parking spaces

13  satisfies the notice requirements of this subparagraph by

14  prominently displaying a sign stating "Reserved Parking for

15  Customers Only Unauthorized Vehicles or Vessels Will be Towed

16  Away At the Owner's Expense" in not less than 4-inch high,

17  light-reflective letters on a contrasting background.

18         g.  A property owner towing or removing vessels from

19  real property must post notice, consistent with the

20  requirements in sub-subparagraphs a.-f., which apply to

21  vehicles, that unauthorized vehicles or vessels will be towed

22  away at the owner's expense.

23  

24  A business owner or lessee may authorize the removal of a

25  vehicle or vessel by a towing company when the vehicle or

26  vessel is parked in such a manner that restricts the normal

27  operation of business; and if a vehicle or vessel parked on a

28  public right-of-way obstructs access to a private driveway the

29  owner, lessee, or agent may have the vehicle or vessel removed

30  by a towing company upon signing an order that the vehicle or

31  vessel be removed without a posted tow-away zone sign.

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 1         6.  Any person or firm that tows or removes vehicles or

 2  vessels and proposes to require an owner, operator, or person

 3  in control of a vehicle or vessel to pay the costs of towing

 4  and storage prior to redemption of the vehicle or vessel must

 5  file and keep on record with the local law enforcement agency

 6  a complete copy of the current rates to be charged for such

 7  services and post at the storage site an identical rate

 8  schedule and any written contracts with property owners,

 9  lessees, or persons in control of property which authorize

10  such person or firm to remove vehicles or vessels as provided

11  in this section.

12         7.  Any person or firm towing or removing any vehicles

13  or vessels from private property without the consent of the

14  owner or other legally authorized person in control of the

15  vehicles or vessels shall, on any trucks, wreckers as defined

16  in s. 713.78(1)(c), or other vehicles used in the towing or

17  removal, have the name, address, and telephone number of the

18  company performing such service clearly printed in contrasting

19  colors on the driver and passenger sides of the vehicle.  The

20  name shall be in at least 3-inch permanently affixed letters,

21  and the address and telephone number shall be in at least

22  1-inch permanently affixed letters.

23         8.  Vehicle entry for the purpose of removing the

24  vehicle or vessel shall be allowed with reasonable care on the

25  part of the person or firm towing the vehicle or vessel.  Such

26  person or firm shall be liable for any damage occasioned to

27  the vehicle if such entry is not in accordance with the

28  standard of reasonable care.

29         9.  When a vehicle or vessel has been towed or removed

30  pursuant to this section, it must be released to its owner or

31  custodian within one hour after requested. Any vehicle or

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 1  vessel owner, custodian, or agent shall have the right to

 2  inspect the vehicle or vessel before accepting its return, and

 3  no release or waiver of any kind which would release the

 4  person or firm towing the vehicle or vessel from liability for

 5  damages noted by the owner or other legally authorized person

 6  at the time of the redemption may be required from any vehicle

 7  or vessel owner, custodian, or agent as a condition of release

 8  of the vehicle or vessel to its owner.  A detailed, signed

 9  receipt showing the legal name of the company or person towing

10  or removing the vehicle or vessel must be given to the person

11  paying towing or storage charges at the time of payment,

12  whether requested or not.

13         (b)  These requirements are shall be the minimum

14  standards and do shall not preclude enactment of additional

15  regulations by any municipality or county including the right

16  to regulate rates when vehicles or vessels are towed from

17  private property.

18         (3)  This section does not apply to law enforcement,

19  firefighting, rescue squad, ambulance, or other emergency

20  vehicles or vessels that which are marked as such or to

21  property owned by any governmental entity.

22         (4)  When a person improperly causes a vehicle or

23  vessel to be removed, such person shall be liable to the owner

24  or lessee of the vehicle or vessel for the cost of removal,

25  transportation, and storage; any damages resulting from the

26  removal, transportation, or storage of the vehicle or vessel;

27  attorney's attorneys' fees; and court costs.

28         (5)(a)  Any person who violates the provisions of

29  subparagraph (2)(a)2. or subparagraph (2)(a)6. commits is

30  guilty of a misdemeanor of the first degree, punishable as

31  provided in s. 775.082 or s. 775.083.

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 1         (b)  Any person who violates sub-subparagraph

 2  (2)(a)1.a, subparagraph (2)(a)3., subparagraph (2)(a)4., the

 3  provisions of subparagraph (2)(a)7., or subparagraph (2)(a)9.

 4  commits is guilty of a felony of the third degree, punishable

 5  as provided in s. 775.082, s. 775.083, or s. 775.084.

 6         Section 4.  This act shall take effect July 1, 2005.

 7  

 8            *****************************************

 9                          SENATE SUMMARY

10    Revises provisions related to the towing or removal of
      vehicles or vessels by wrecker companies. Limits certain
11    towing and storage rates. Conforms provisions to include
      references to vessels. Provides for attorney's fees. (See
12    bill for details.)

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