| 1 | A bill to be entitled |
| 2 | An act relating to the recovery, towing, and storage of |
| 3 | vehicles and vessels; amending s. 322.34, F.S.; deleting |
| 4 | provisions requiring a return receipt for the notice sent |
| 5 | by certified mail to the owner and lienholders of an |
| 6 | impounded or immobilized vehicle; authorizing the |
| 7 | lienholder of an impounded or immobilized vehicle to file |
| 8 | a complaint to determine if the vehicle was wrongfully |
| 9 | taken or withheld and to have the vehicle released by |
| 10 | posting a bond or other security; requiring a lienholder |
| 11 | who does not prevail in court to pay certain |
| 12 | immobilization, impoundment, towing, and storage charges; |
| 13 | requiring the lienholder to notify the towing or storage |
| 14 | company of any loss or damage to the vehicle or its |
| 15 | contents; amending s. 713.78, F.S.; specifying which law |
| 16 | enforcement agency is responsible for notifying the |
| 17 | Department of Highway Safety and Motor Vehicles or |
| 18 | corresponding agency in another state of a vehicle's or |
| 19 | vessel's removal or possession by a recovery, towing, or |
| 20 | storage service; deleting provisions requiring a return |
| 21 | receipt for the notice sent by certified mail to the |
| 22 | owner, insurance company, and lienholder of a vehicle or |
| 23 | vessel in the possession of a recovery, towing, or storage |
| 24 | service; specifying which public agency a towing-storage |
| 25 | operator is required to notify if the operator is unable |
| 26 | to locate the owner or lienholder of a vehicle or vessel; |
| 27 | limiting the county court in which an owner or lienholder |
| 28 | of a removed vehicle or vessel may file a complaint to |
| 29 | determine if his or her property was wrongfully taken or |
| 30 | withheld; deleting a requirement that the public sale of |
| 31 | an unclaimed vehicle or vessel be at auction; deleting a |
| 32 | provision requiring a return receipt for the notice of the |
| 33 | sale sent by certified mail to the owner and lienholders |
| 34 | of the vehicle or vessel; requiring deposit of the |
| 35 | proceeds of the vehicle's or vessel's sale with the clerk |
| 36 | of circuit court if the owner or lienholder is absent; |
| 37 | authorizing an owner or lienholder to file a complaint in |
| 38 | a certain county court; providing for the award of |
| 39 | damages, attorney's fees, and costs; requiring a recovery, |
| 40 | towing, or storage service to permit a lienholder or agent |
| 41 | to inspect the vehicle or vessel and release personal |
| 42 | property to the lienholder or agent; requiring certain |
| 43 | evidence of the owner's or lienholder's authority for an |
| 44 | agent to inspect a vehicle or vessel or receive personal |
| 45 | property in the vehicle or vessel; providing an effective |
| 46 | date. |
| 47 |
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| 48 | Be It Enacted by the Legislature of the State of Florida: |
| 49 |
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| 50 | Section 1. Paragraphs (c), (d), and (f) of subsection (8) |
| 51 | of section 322.34, Florida Statutes, are amended to read: |
| 52 | 322.34 Driving while license suspended, revoked, canceled, |
| 53 | or disqualified.-- |
| 54 | (8) |
| 55 | (c) Within 7 business days after the date the arresting |
| 56 | agency impounds or immobilizes the vehicle, either the arresting |
| 57 | agency or the towing service, whichever is in possession of the |
| 58 | vehicle, shall send notice by certified mail, return receipt |
| 59 | requested, to any coregistered owners of the vehicle other than |
| 60 | the person arrested and to each person of record claiming a lien |
| 61 | against the vehicle. All costs and fees for the impoundment or |
| 62 | immobilization, including the cost of notification, must be paid |
| 63 | by the owner of the vehicle or, if the vehicle is leased, by the |
| 64 | person leasing the vehicle. |
| 65 | (d) Either the arresting agency or the towing service, |
| 66 | whichever is in possession of the vehicle, shall determine |
| 67 | whether any vehicle impounded or immobilized under this section |
| 68 | is has been leased or rented or if there are any persons of |
| 69 | record with a lien upon the vehicle. Either the arresting agency |
| 70 | or the towing service, whichever is in possession of the |
| 71 | vehicle, shall notify by express courier service with receipt, |
| 72 | or by certified mail, return receipt requested, within 7 |
| 73 | business days after the date of the immobilization or |
| 74 | impoundment of the vehicle, the registered owner and all persons |
| 75 | having a recorded lien against the vehicle that the vehicle is |
| 76 | has been impounded or immobilized. A lessor, rental car company, |
| 77 | or lienholder may then obtain the vehicle, upon payment of any |
| 78 | lawful towing or storage charges. If the vehicle is a rental |
| 79 | vehicle subject to a written contract, the charges may be |
| 80 | separately charged to the renter, in addition to the rental |
| 81 | rate, along with other separate fees, charges, and recoupments |
| 82 | disclosed on the rental agreement. If the storage facility fails |
| 83 | to provide timely notice to a lessor, rental car company, or |
| 84 | lienholder as required by this paragraph, the storage facility |
| 85 | is shall be responsible for payment of any towing or storage |
| 86 | charges necessary to release the vehicle to a lessor, rental car |
| 87 | company, or lienholder that accrue after the notice period, |
| 88 | which charges may then be assessed against the driver of the |
| 89 | vehicle if the vehicle was lawfully impounded or immobilized. |
| 90 | (f) The owner or lienholder of a vehicle that is impounded |
| 91 | or immobilized under this subsection may, within 10 days after |
| 92 | the date the owner or lienholder has knowledge of the location |
| 93 | of the vehicle, file a complaint in the county in which the |
| 94 | owner resides to determine whether the vehicle was wrongfully |
| 95 | taken or withheld. Upon the filing of a complaint, the owner or |
| 96 | lienholder may have the vehicle released by posting with the |
| 97 | court a bond or other adequate security equal to the amount of |
| 98 | the costs and fees for impoundment or immobilization, including |
| 99 | towing or storage, to ensure the payment of such costs and fees |
| 100 | if the owner or lienholder does not prevail. When the vehicle |
| 101 | owner or lienholder does not prevail on a complaint that the |
| 102 | vehicle was wrongfully taken or withheld, he or she must pay the |
| 103 | accrued charges for the immobilization or impoundment, including |
| 104 | any towing and storage charges assessed against the vehicle. |
| 105 | When the bond is posted and the fee is paid as set forth in s. |
| 106 | 28.24, the clerk of the court shall issue a certificate |
| 107 | releasing the vehicle. At the time of release, after reasonable |
| 108 | inspection, the owner or lienholder must give a receipt to the |
| 109 | towing or storage company indicating any loss or damage to the |
| 110 | vehicle or to the contents of the vehicle. |
| 111 | Section 2. Subsection (4), paragraph (a) of subsection |
| 112 | (5), and subsections (6) and (10) of section 713.78, Florida |
| 113 | Statutes, are amended to read: |
| 114 | 713.78 Liens for recovering, towing, or storing vehicles |
| 115 | and vessels.-- |
| 116 | (4)(a) Any person regularly engaged in the business of |
| 117 | recovering, towing, or storing vehicles or vessels who comes |
| 118 | into possession of a vehicle or vessel pursuant to subsection |
| 119 | (2), and who claims a lien for recovery, towing, or storage |
| 120 | services, shall give notice to the registered owner, the |
| 121 | insurance company insuring the vehicle notwithstanding the |
| 122 | provisions of s. 627.736, and to all persons claiming a lien |
| 123 | thereon, as disclosed by the records in the Department of |
| 124 | Highway Safety and Motor Vehicles or of a corresponding agency |
| 125 | in any other state. |
| 126 | (b) Whenever any law enforcement agency authorizes the |
| 127 | removal of a vehicle or vessel or whenever any towing service, |
| 128 | garage, repair shop, or automotive service, storage, or parking |
| 129 | place notifies the law enforcement agency of possession of a |
| 130 | vehicle or vessel pursuant to s. 715.07(2)(a)2., the applicable |
| 131 | law enforcement agency of the jurisdiction in which the vehicle |
| 132 | or vessel is stored shall contact the Department of Highway |
| 133 | Safety and Motor Vehicles, or the appropriate agency of the |
| 134 | state of registration, if known, within 24 hours through the |
| 135 | medium of electronic communications, giving the full description |
| 136 | of the vehicle or vessel. Upon receipt of the full description |
| 137 | of the vehicle or vessel, the department shall search its files |
| 138 | to determine the owner's name, the insurance company insuring |
| 139 | the vehicle or vessel, and whether any person has filed a lien |
| 140 | upon the vehicle or vessel as provided in s. 319.27(2) and (3) |
| 141 | and notify the applicable law enforcement agency within 72 |
| 142 | hours. The person in charge of the towing service, garage, |
| 143 | repair shop, or automotive service, storage, or parking place |
| 144 | shall obtain such information from the applicable law |
| 145 | enforcement agency within 5 days after the date of storage and |
| 146 | shall give notice pursuant to paragraph (a). The department may |
| 147 | release the insurance company information to the requestor |
| 148 | notwithstanding the provisions of s. 627.736. |
| 149 | (c) Notice by certified mail, return receipt requested, |
| 150 | shall be sent within 7 business days after the date of storage |
| 151 | of the vehicle or vessel to the registered owner, the insurance |
| 152 | company insuring the vehicle notwithstanding the provisions of |
| 153 | s. 627.736, and all persons of record claiming a lien against |
| 154 | the vehicle or vessel. It shall state the fact of possession of |
| 155 | the vehicle or vessel, that a lien as provided in subsection (2) |
| 156 | is claimed, that charges have accrued and the amount thereof, |
| 157 | that the lien is subject to enforcement pursuant to law, and |
| 158 | that the owner or lienholder, if any, has the right to a hearing |
| 159 | as set forth in subsection (5), and that any vehicle or vessel |
| 160 | which remains unclaimed, or for which the charges for recovery, |
| 161 | towing, or storage services remain unpaid, may be sold free of |
| 162 | all prior liens after 35 days if the vehicle or vessel is more |
| 163 | than 3 years of age or after 50 days if the vehicle or vessel is |
| 164 | 3 years of age or less. |
| 165 | (d) If attempts to locate the name and address of the |
| 166 | owner or lienholder prove unsuccessful, the towing-storage |
| 167 | operator shall, after 7 working days, excluding Saturday and |
| 168 | Sunday, of the initial tow or storage, notify the public agency |
| 169 | of the jurisdiction in which the vehicle or vessel is stored in |
| 170 | writing by certified mail or acknowledged hand delivery that the |
| 171 | towing-storage company is has been unable to locate the name and |
| 172 | address of the owner or lienholder and a physical search of the |
| 173 | vehicle or vessel has disclosed no ownership information and a |
| 174 | good faith effort was has been made. For purposes of this |
| 175 | paragraph and subsection (9), "good faith effort" means that the |
| 176 | following checks have been performed by the company to establish |
| 177 | prior state of registration and for title: |
| 178 | 1. Check of vehicle or vessel for any type of tag, tag |
| 179 | record, temporary tag, or regular tag. |
| 180 | 2. Check of law enforcement report for tag number or other |
| 181 | information identifying the vehicle or vessel, if the vehicle or |
| 182 | vessel was towed at the request of a law enforcement officer. |
| 183 | 3. Check of trip sheet or tow ticket of tow truck operator |
| 184 | to see if a tag was on vehicle or vessel at beginning of tow, if |
| 185 | private tow. |
| 186 | 4. If there is no address of the owner on the impound |
| 187 | report, check of law enforcement report to see if an out-of- |
| 188 | state address is indicated from driver license information. |
| 189 | 5. Check of vehicle or vessel for inspection sticker or |
| 190 | other stickers and decals that may indicate a state of possible |
| 191 | registration. |
| 192 | 6. Check of the interior of the vehicle or vessel for any |
| 193 | papers that may be in the glove box, trunk, or other areas for a |
| 194 | state of registration. |
| 195 | 7. Check of vehicle for vehicle identification number. |
| 196 | 8. Check of vessel for vessel registration number. |
| 197 | 9. Check of vessel hull for a hull identification number |
| 198 | which should be carved, burned, stamped, embossed, or otherwise |
| 199 | permanently affixed to the outboard side of the transom or, if |
| 200 | there is no transom, to the outmost seaboard side at the end of |
| 201 | the hull that bears the rudder or other steering mechanism. |
| 202 | (5)(a) The owner of a vehicle or vessel removed pursuant |
| 203 | to the provisions of subsection (2), or any person claiming a |
| 204 | lien, other than the towing-storage operator, within 10 days |
| 205 | after the time she or he has knowledge of the location of the |
| 206 | vehicle or vessel, may file a complaint in the county court of |
| 207 | the county in which the vehicle or vessel is stored or in which |
| 208 | the owner resides to determine if her or his property was |
| 209 | wrongfully taken or withheld from her or him. |
| 210 | (6) Any vehicle or vessel which is stored pursuant to |
| 211 | subsection (2) and which remains unclaimed, or for which |
| 212 | reasonable charges for recovery, towing, or storing remain |
| 213 | unpaid, and any contents not released pursuant to subsection |
| 214 | (10), may be sold for cash at a public sale by the owner or |
| 215 | operator of the storage space for such towing or storage charge |
| 216 | after 35 days from the time the vehicle or vessel is stored |
| 217 | therein if the vehicle or vessel is more than 3 years of age or |
| 218 | after 50 days following the time the vehicle or vessel is stored |
| 219 | therein if the vehicle or vessel is 3 years of age or less. The |
| 220 | sale shall be at public auction for cash. If the date of the |
| 221 | sale was not included in the notice required in subsection (4), |
| 222 | notice of the sale shall be given to the person in whose name |
| 223 | the vehicle or vessel is registered and to all persons claiming |
| 224 | a lien on the vehicle or vessel as shown on the records of the |
| 225 | Department of Highway Safety and Motor Vehicles or of the |
| 226 | corresponding agency in any other state. Notice shall be sent by |
| 227 | certified mail, return receipt requested, to the owner of the |
| 228 | vehicle or vessel and the person having the recorded lien on the |
| 229 | vehicle or vessel at the address shown on the records of the |
| 230 | registering agency and shall be mailed not less than 15 days |
| 231 | before the date of the sale. After diligent search and inquiry, |
| 232 | if the name and address of the registered owner or the owner of |
| 233 | the recorded lien cannot be ascertained, the requirements of |
| 234 | notice by mail may be dispensed with. In addition to the notice |
| 235 | by mail, public notice of the time and place of sale shall be |
| 236 | made by publishing a notice thereof one time, at least 10 days |
| 237 | before prior to the date of the sale, in a newspaper of general |
| 238 | circulation in the county in which the sale is to be held. The |
| 239 | proceeds of the sale, after payment of reasonable towing and |
| 240 | storage charges, and costs of the sale, in that order of |
| 241 | priority, shall be deposited with the clerk of the circuit court |
| 242 | for the county if the owner or lienholder is absent, and the |
| 243 | clerk shall hold the such proceeds subject to the claim of the |
| 244 | owner or lienholder who is person legally entitled to the |
| 245 | proceeds thereto. The clerk is shall be entitled to receive 5 |
| 246 | percent of the such proceeds for the care and disbursement |
| 247 | thereof. The certificate of title issued under this law shall be |
| 248 | discharged of all liens unless otherwise provided by court |
| 249 | order. After the vehicle or vessel is sold, the owner or |
| 250 | lienholder may file a complaint in the county court of the |
| 251 | county in which the vehicle or vessel is stored. Upon |
| 252 | determining the respective rights of the parties, the court may |
| 253 | award damages, attorney's fees, and costs in favor of the |
| 254 | prevailing party. |
| 255 | (10) Persons who provide services pursuant to this section |
| 256 | shall permit vehicle or vessel owners, lienholders, or their |
| 257 | agents, which agency is evidenced by an original writing |
| 258 | acknowledged by the owner before a notary public or other person |
| 259 | empowered by law to administer oaths, to inspect the towed |
| 260 | vehicle or vessel and shall release to the owner, lienholder, or |
| 261 | agent the vehicle, vessel, or all personal property not affixed |
| 262 | to the vehicle or vessel which was in the vehicle or vessel at |
| 263 | the time the vehicle or vessel came into the custody of the |
| 264 | person providing such services. An agent's authority to inspect |
| 265 | the vehicle or vessel and receive personal property in the |
| 266 | vehicle or vessel must be evidenced by an original writing |
| 267 | acknowledged by the owner or lienholder before a notary public |
| 268 | or before another person empowered by law to administer oaths. |
| 269 | Section 3. This act shall take effect July 1, 2009. |