Florida Senate - 2009                                    SB 2266
       
       
       
       By Senator Crist
       
       
       
       
       12-01500A-09                                          20092266__
    1                        A bill to be entitled                      
    2         An act relating to liens for recovering, towing, or
    3         storing vehicles and vessels; amending s. 322.34,
    4         F.S.; creating certain rights for lienholders;
    5         deleting a return receipt mailing requirement;
    6         amending s. 713.78, F.S.; clarifying provisions;
    7         deleting a return receipt mailing requirement;
    8         creating certain rights for lienholders; deleting a
    9         provision that allows a complaint to be filed in the
   10         county where the owner resides; creating a cause of
   11         action to determine the rights of the parties after a
   12         vehicle or vessel has been sold; providing for
   13         attorney's fees and costs; providing a right of
   14         inspection to lienholders; providing an effective
   15         date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1.  Subsection (8) of section 322.34, Florida
   20  Statutes, is amended to read:
   21         322.34 Driving while license suspended, revoked, canceled,
   22  or disqualified.—
   23         (8)(a) Upon the arrest of a person for the offense of
   24  driving while the person's driver's license or driving privilege
   25  is suspended or revoked, the arresting officer shall determine:
   26         1. Whether the person's driver's license is suspended or
   27  revoked.
   28         2. Whether the person's driver's license has remained
   29  suspended or revoked since a conviction for the offense of
   30  driving with a suspended or revoked license.
   31         3. Whether the suspension or revocation was made under s.
   32  316.646 or s. 627.733, relating to failure to maintain required
   33  security, or under s. 322.264, relating to habitual traffic
   34  offenders.
   35         4. Whether the driver is the registered owner or coowner of
   36  the vehicle.
   37         (b) If the arresting officer finds in the affirmative as to
   38  all of the criteria in paragraph (a), the officer shall
   39  immediately impound or immobilize the vehicle.
   40         (c) Within 7 business days after the date the arresting
   41  agency impounds or immobilizes the vehicle, either the arresting
   42  agency or the towing service, whichever is in possession of the
   43  vehicle, shall send notice by certified mail, return receipt
   44  requested, to any coregistered owners of the vehicle other than
   45  the person arrested and to each person of record claiming a lien
   46  against the vehicle. All costs and fees for the impoundment or
   47  immobilization, including the cost of notification, must be paid
   48  by the owner of the vehicle or, if the vehicle is leased, by the
   49  person leasing the vehicle.
   50         (d) Either the arresting agency or the towing service,
   51  whichever is in possession of the vehicle, shall determine
   52  whether any vehicle impounded or immobilized under this section
   53  has been leased or rented or if there are any persons of record
   54  with a lien upon the vehicle. Either the arresting agency or the
   55  towing service, whichever is in possession of the vehicle, shall
   56  notify by express courier service with receipt or certified
   57  mail, return receipt requested, within 7 business days after the
   58  date of the immobilization or impoundment of the vehicle, the
   59  registered owner and all persons having a recorded lien against
   60  the vehicle that the vehicle has been impounded or immobilized.
   61  A lessor, rental car company, or lienholder may then obtain the
   62  vehicle, upon payment of any lawful towing or storage charges.
   63  If the vehicle is a rental vehicle subject to a written
   64  contract, the charges may be separately charged to the renter,
   65  in addition to the rental rate, along with other separate fees,
   66  charges, and recoupments disclosed on the rental agreement. If
   67  the storage facility fails to provide timely notice to a lessor,
   68  rental car company, or lienholder as required by this paragraph,
   69  the storage facility shall be responsible for payment of any
   70  towing or storage charges necessary to release the vehicle to a
   71  lessor, rental car company, or lienholder that accrue after the
   72  notice period, which charges may then be assessed against the
   73  driver of the vehicle if the vehicle was lawfully impounded or
   74  immobilized.
   75         (e) Except as provided in paragraph (d), the vehicle shall
   76  remain impounded or immobilized for any period imposed by the
   77  court until:
   78         1. The owner presents proof of insurance to the arresting
   79  agency; or
   80         2. The owner presents proof of sale of the vehicle to the
   81  arresting agency and the buyer presents proof of insurance to
   82  the arresting agency.
   83  
   84  If proof is not presented within 35 days after the impoundment
   85  or immobilization, a lien shall be placed upon such vehicle
   86  pursuant to s. 713.78.
   87         (f) The owner of a vehicle that is impounded or immobilized
   88  under this subsection may, within 10 days after the date the
   89  owner has knowledge of the location of the vehicle, file a
   90  complaint in the county in which the owner resides to determine
   91  whether the vehicle was wrongfully taken or withheld. Upon the
   92  filing of a complaint, the owner or lienholder may have the
   93  vehicle released by posting with the court a bond or other
   94  adequate security equal to the amount of the costs and fees for
   95  impoundment or immobilization, including towing or storage, to
   96  ensure the payment of such costs and fees if the owner or
   97  lienholder does not prevail. When the vehicle owner or
   98  lienholder does not prevail on a complaint that the vehicle was
   99  wrongfully taken or withheld, he or she must pay the accrued
  100  charges for the immobilization or impoundment, including any
  101  towing and storage charges assessed against the vehicle. When
  102  the bond is posted and the fee is paid as set forth in s. 28.24,
  103  the clerk of the court shall issue a certificate releasing the
  104  vehicle. At the time of release, after reasonable inspection,
  105  the owner must give a receipt to the towing or storage company
  106  indicating any loss or damage to the vehicle or to the contents
  107  of the vehicle.
  108         Section 2. Subsections (4), (5), (6), and (10) of section
  109  713.78, Florida Statutes, are amended to read:
  110         713.78 Liens for recovering, towing, or storing vehicles
  111  and vessels.—
  112         (4)(a) Any person regularly engaged in the business of
  113  recovering, towing, or storing vehicles or vessels who comes
  114  into possession of a vehicle or vessel pursuant to subsection
  115  (2), and who claims a lien for recovery, towing, or storage
  116  services, shall give notice to the registered owner, the
  117  insurance company insuring the vehicle notwithstanding the
  118  provisions of s. 627.736, and to all persons claiming a lien
  119  thereon, as disclosed by the records in the Department of
  120  Highway Safety and Motor Vehicles or of a corresponding agency
  121  in any other state.
  122         (b) Whenever any law enforcement agency authorizes the
  123  removal of a vehicle or vessel or whenever any towing service,
  124  garage, repair shop, or automotive service, storage, or parking
  125  place notifies the law enforcement agency of possession of a
  126  vehicle or vessel pursuant to s. 715.07(2)(a)2., the applicable
  127  law enforcement agency of the jurisdiction where the vehicle or
  128  vessel is stored shall contact the Department of Highway Safety
  129  and Motor Vehicles, or the appropriate agency of the state of
  130  registration, if known, within 24 hours through the medium of
  131  electronic communications, giving the full description of the
  132  vehicle or vessel. Upon receipt of the full description of the
  133  vehicle or vessel, the department shall search its files to
  134  determine the owner's name, the insurance company insuring the
  135  vehicle or vessel, and whether any person has filed a lien upon
  136  the vehicle or vessel as provided in s. 319.27(2) and (3) and
  137  notify the applicable law enforcement agency within 72 hours.
  138  The person in charge of the towing service, garage, repair shop,
  139  or automotive service, storage, or parking place shall obtain
  140  such information from the applicable law enforcement agency
  141  within 5 days after the date of storage and shall give notice
  142  pursuant to paragraph (a). The department may release the
  143  insurance company information to the requestor notwithstanding
  144  the provisions of s. 627.736.
  145         (c) Notice by certified mail, return receipt requested,
  146  shall be sent within 7 business days after the date of storage
  147  of the vehicle or vessel to the registered owner, the insurance
  148  company insuring the vehicle notwithstanding the provisions of
  149  s. 627.736, and all persons of record claiming a lien against
  150  the vehicle or vessel. It shall state the fact of possession of
  151  the vehicle or vessel, that a lien as provided in subsection (2)
  152  is claimed, that charges have accrued and the amount thereof,
  153  that the lien is subject to enforcement pursuant to law, and
  154  that the owner or lienholder, if any, has the right to a hearing
  155  as set forth in subsection (5), and that any vehicle or vessel
  156  which remains unclaimed, or for which the charges for recovery,
  157  towing, or storage services remain unpaid, may be sold free of
  158  all prior liens after 35 days if the vehicle or vessel is more
  159  than 3 years of age or after 50 days if the vehicle or vessel is
  160  3 years of age or less.
  161         (d) If attempts to locate the name and address of the owner
  162  or lienholder prove unsuccessful, the towing-storage operator
  163  shall, after 7 working days, excluding Saturday and Sunday, of
  164  the initial tow or storage, notify the public agency of
  165  jurisdiction where the vehicle or vessel is stored in writing by
  166  certified mail or acknowledged hand delivery that the towing
  167  storage company has been unable to locate the name and address
  168  of the owner or lienholder and a physical search of the vehicle
  169  or vessel has disclosed no ownership information and a good
  170  faith effort has been made. For purposes of this paragraph and
  171  subsection (9), “good faith effort” means that the following
  172  checks have been performed by the company to establish prior
  173  state of registration and for title:
  174         1. Check of vehicle or vessel for any type of tag, tag
  175  record, temporary tag, or regular tag.
  176         2. Check of law enforcement report for tag number or other
  177  information identifying the vehicle or vessel, if the vehicle or
  178  vessel was towed at the request of a law enforcement officer.
  179         3. Check of trip sheet or tow ticket of tow truck operator
  180  to see if a tag was on vehicle or vessel at beginning of tow, if
  181  private tow.
  182         4. If there is no address of the owner on the impound
  183  report, check of law enforcement report to see if an out-of
  184  state address is indicated from driver license information.
  185         5. Check of vehicle or vessel for inspection sticker or
  186  other stickers and decals that may indicate a state of possible
  187  registration.
  188         6. Check of the interior of the vehicle or vessel for any
  189  papers that may be in the glove box, trunk, or other areas for a
  190  state of registration.
  191         7. Check of vehicle for vehicle identification number.
  192         8. Check of vessel for vessel registration number.
  193         9. Check of vessel hull for a hull identification number
  194  which should be carved, burned, stamped, embossed, or otherwise
  195  permanently affixed to the outboard side of the transom or, if
  196  there is no transom, to the outmost seaboard side at the end of
  197  the hull that bears the rudder or other steering mechanism.
  198         (5)(a) The owner of a vehicle or vessel removed pursuant to
  199  the provisions of subsection (2), or any person claiming a lien,
  200  other than the towing-storage operator, within 10 days after the
  201  time she or he has knowledge of the location of the vehicle or
  202  vessel, may file a complaint in the county court of the county
  203  in which the vehicle or vessel is stored or in which the owner
  204  resides to determine if her or his property was wrongfully taken
  205  or withheld from her or him.
  206         (b) Upon filing of a complaint, an owner or lienholder may
  207  have her or his vehicle or vessel released upon posting with the
  208  court a cash or surety bond or other adequate security equal to
  209  the amount of the charges for towing or storage and lot rental
  210  amount to ensure the payment of such charges in the event she or
  211  he does not prevail. Upon the posting of the bond and the
  212  payment of the applicable fee set forth in s. 28.24, the clerk
  213  of the court shall issue a certificate notifying the lienor of
  214  the posting of the bond and directing the lienor to release the
  215  vehicle or vessel. At the time of such release, after reasonable
  216  inspection, she or he shall give a receipt to the towing-storage
  217  company reciting any claims she or he has for loss or damage to
  218  the vehicle or vessel or the contents thereof.
  219         (c) Upon determining the respective rights of the parties,
  220  the court may award damages, attorney's fees, and costs in favor
  221  of the prevailing party. In any event, the final order shall
  222  provide for immediate payment in full of recovery, towing, and
  223  storage fees by the vehicle or vessel owner or lienholder; or
  224  the agency ordering the tow; or the owner, lessee, or agent
  225  thereof of the property from which the vehicle or vessel was
  226  removed.
  227         (6) Any vehicle or vessel which is stored pursuant to
  228  subsection (2) and which remains unclaimed, or for which
  229  reasonable charges for recovery, towing, or storing remain
  230  unpaid, and any contents not released pursuant to subsection
  231  (10), may be sold by the owner or operator of the storage space
  232  for such towing or storage charge after 35 days from the time
  233  the vehicle or vessel is stored therein if the vehicle or vessel
  234  is more than 3 years of age or after 50 days following the time
  235  the vehicle or vessel is stored therein if the vehicle or vessel
  236  is 3 years of age or less. The sale shall be at public sale
  237  auction for cash. If the date of the sale was not included in
  238  the notice required in subsection (4), notice of the sale shall
  239  be given to the person in whose name the vehicle or vessel is
  240  registered and to all persons claiming a lien on the vehicle or
  241  vessel as shown on the records of the Department of Highway
  242  Safety and Motor Vehicles or of the corresponding agency in any
  243  other state. Notice shall be sent by certified mail, return
  244  receipt requested, to the owner of the vehicle or vessel and the
  245  person having the recorded lien on the vehicle or vessel at the
  246  address shown on the records of the registering agency and shall
  247  be mailed not less than 15 days before the date of the sale.
  248  After diligent search and inquiry, if the name and address of
  249  the registered owner or the owner of the recorded lien cannot be
  250  ascertained, the requirements of notice by mail may be dispensed
  251  with. In addition to the notice by mail, public notice of the
  252  time and place of sale shall be made by publishing a notice
  253  thereof one time, at least 10 days prior to the date of the
  254  sale, in a newspaper of general circulation in the county in
  255  which the sale is to be held. The proceeds of the sale, after
  256  payment of reasonable towing and storage charges, and costs of
  257  the sale, in that order of priority, shall be deposited with the
  258  clerk of the circuit court for the county if the owner or
  259  lienholder is absent, and the clerk shall hold such proceeds
  260  subject to the claim of the owner or lienholder person legally
  261  entitled thereto. The clerk shall be entitled to receive 5
  262  percent of such proceeds for the care and disbursement thereof.
  263  The certificate of title issued under this law shall be
  264  discharged of all liens unless otherwise provided by court
  265  order. The owner or lienholder may file a complaint after the
  266  vehicle or vessel has been sold in the county court of the
  267  county in which it is stored. Upon determining the respective
  268  rights of the parties, the court may award damages, attorney's
  269  fees, and costs in favor of the prevailing party.
  270         (10) Persons who provide services pursuant to this section
  271  shall permit vehicle or vessel owners, lienholders, or their
  272  agents, which agency is evidenced by an original writing
  273  acknowledged by the owner before a notary public or other person
  274  empowered by law to administer oaths, to inspect the towed
  275  vehicle or vessel and shall release to the owner, lienholder, or
  276  agent the vehicle, vessel, or all personal property not affixed
  277  to the vehicle or vessel which was in the vehicle or vessel at
  278  the time the vehicle or vessel came into the custody of the
  279  person providing such services.
  280         Section 3. This act shall take effect July 1, 2009.