Florida Senate - 2019                              CS for SB 826
       By the Committee on Judiciary; and Senator Rouson
       590-03197-19                                           2019826c1
    1                        A bill to be entitled                      
    2         An act relating to towing-storage operator liens;
    3         amending s. 713.78, F.S.; requiring certain lien
    4         notices be sent through a third-party notification
    5         service; deleting a provision authorizing the award of
    6         attorney fees to the prevailing party in court
    7         proceedings determining the respective rights of
    8         owners or lienholders of vehicles or vessels and
    9         towing-storage operators; revising requirements for
   10         the inspection and release of vehicles or vessels and
   11         personal property in such vehicles or vessels;
   12         defining the term “third-party notification service”;
   13         requiring third-party notification services to apply
   14         to the Department of Highway Safety and Motor Vehicles
   15         for approval; authorizing the department to approve an
   16         application if certain conditions are met; requiring
   17         approved third-party notification services to provide
   18         the department with proof that it has maintained the
   19         performance bond; requiring approved third-party
   20         notification services to submit a specified annual
   21         audit to the department; authorizing the department to
   22         deny, suspend, or revoke its approval under certain
   23         circumstances; requiring a third-party notification
   24         service to maintain certain records for a specified
   25         period and allow for the inspection and copying of
   26         such records by the department; authorizing towing
   27         storage operators to send notices on their own behalf
   28         if there are no approved third-party notification
   29         services; providing an effective date.
   31  Be It Enacted by the Legislature of the State of Florida:
   33         Section 1. Paragraphs (c) and (d) of subsection (4),
   34  subsection (6), and subsection (10) of section 713.78, Florida
   35  Statutes, are amended, and subsection (14) is added to that
   36  section, to read:
   37         713.78 Liens for recovering, towing, or storing vehicles
   38  and vessels.—
   39         (4)
   40         (c) Notice by certified mail shall be sent Within 7
   41  business days after the date of storage of the vehicle or
   42  vessel, the towing-storage operator shall, through a third-party
   43  notification service approved by the Department of Highway
   44  Safety and Motor Vehicles, send notice by certified mail to the
   45  registered owner, the insurance company insuring the vehicle
   46  notwithstanding the provisions of s. 627.736, and all persons of
   47  record claiming a lien against the vehicle or vessel. The notice
   48  must It shall state the fact of possession of the vehicle or
   49  vessel, that a lien as provided in subsection (2) is claimed,
   50  that charges have accrued and the amount thereof, that the lien
   51  is subject to enforcement pursuant to law, and that the owner or
   52  lienholder, if any, has the right to a hearing as set forth in
   53  subsection (5), and that any vehicle or vessel which remains
   54  unclaimed, or for which the charges for recovery, towing, or
   55  storage services remain unpaid, may be sold free of all prior
   56  liens after 35 days if the vehicle or vessel is more than 3
   57  years of age or after 50 days if the vehicle or vessel is 3
   58  years of age or less.
   59         (d) If attempts to locate the name and address of the owner
   60  or lienholder prove unsuccessful, the towing-storage operator
   61  shall, after 7 business working days, excluding Saturday and
   62  Sunday, of the initial tow or storage, the towing-storage
   63  operator, through a third-party notification service approved by
   64  the Department of Highway Safety and Motor Vehicles, shall send
   65  notice by certified mail to notify the public agency of
   66  jurisdiction where the vehicle or vessel is stored in writing by
   67  certified mail or acknowledged hand delivery that the towing
   68  storage company has been unable to locate the name and address
   69  of the owner or lienholder and a physical search of the vehicle
   70  or vessel has disclosed no ownership information and a good
   71  faith effort has been made, including records checks of the
   72  Department of Highway Safety and Motor Vehicles database and the
   73  National Motor Vehicle Title Information System or an equivalent
   74  commercially available system. For purposes of this paragraph
   75  and subsection (9), “good faith effort” means that the following
   76  checks have been performed by the company to establish prior
   77  state of registration and for title:
   78         1. Check of the Department of Highway Safety and Motor
   79  Vehicles database for the owner and any lienholder.
   80         2. Check of the electronic National Motor Vehicle Title
   81  Information System or an equivalent commercially available
   82  system to determine the state of registration when there is not
   83  a current registration record for the vehicle on file with the
   84  Department of Highway Safety and Motor Vehicles.
   85         3. Check of vehicle or vessel for any type of tag, tag
   86  record, temporary tag, or regular tag.
   87         4. Check of law enforcement report for tag number or other
   88  information identifying the vehicle or vessel, if the vehicle or
   89  vessel was towed at the request of a law enforcement officer.
   90         5. Check of trip sheet or tow ticket of tow truck operator
   91  to see if a tag was on vehicle or vessel at beginning of tow, if
   92  private tow.
   93         6. If there is no address of the owner on the impound
   94  report, check of law enforcement report to see if an out-of
   95  state address is indicated from driver license information.
   96         7. Check of vehicle or vessel for inspection sticker or
   97  other stickers and decals that may indicate a state of possible
   98  registration.
   99         8. Check of the interior of the vehicle or vessel for any
  100  papers that may be in the glove box, trunk, or other areas for a
  101  state of registration.
  102         9. Check of vehicle for vehicle identification number.
  103         10. Check of vessel for vessel registration number.
  104         11. Check of vessel hull for a hull identification number
  105  which should be carved, burned, stamped, embossed, or otherwise
  106  permanently affixed to the outboard side of the transom or, if
  107  there is no transom, to the outmost seaboard side at the end of
  108  the hull that bears the rudder or other steering mechanism.
  109         (6) Any vehicle or vessel which is stored pursuant to
  110  subsection (2) and which remains unclaimed, or for which
  111  reasonable charges for recovery, towing, or storing remain
  112  unpaid, and any contents not released pursuant to subsection
  113  (10), may be sold by the owner or operator of the storage space
  114  for such towing or storage charge after 35 days from the time
  115  the vehicle or vessel is stored therein if the vehicle or vessel
  116  is more than 3 years of age or after 50 days following the time
  117  the vehicle or vessel is stored therein if the vehicle or vessel
  118  is 3 years of age or less. The sale shall be at public sale for
  119  cash. If the date of the sale was not included in the notice
  120  required in subsection (4), notice of the sale shall be given to
  121  the person in whose name the vehicle or vessel is registered and
  122  to all persons claiming a lien on the vehicle or vessel as shown
  123  on the records of the Department of Highway Safety and Motor
  124  Vehicles or of any corresponding agency in any other state in
  125  which the vehicle is identified through a records check of the
  126  National Motor Vehicle Title Information System or an equivalent
  127  commercially available system as being titled. The towing
  128  storage operator, through a third-party notification service
  129  approved by the Department of Highway Safety and Motor Vehicles,
  130  shall send notice shall be sent by certified mail to the owner
  131  of the vehicle or vessel and the person having the recorded lien
  132  on the vehicle or vessel at the address shown on the records of
  133  the registering agency and shall be mailed not less than 15 days
  134  before the date of the sale. After diligent search and inquiry,
  135  if the name and address of the registered owner or the owner of
  136  the recorded lien cannot be ascertained, the requirements of
  137  notice by mail may be dispensed with. In addition to the notice
  138  by mail, public notice of the time and place of sale shall be
  139  made by publishing a notice thereof one time, at least 10 days
  140  before prior to the date of the sale, in a newspaper of general
  141  circulation in the county in which the sale is to be held. The
  142  proceeds of the sale, after payment of reasonable towing and
  143  storage charges, and costs of the sale, in that order of
  144  priority, shall be deposited with the clerk of the circuit court
  145  for the county if the owner or lienholder is absent, and the
  146  clerk shall hold such proceeds subject to the claim of the owner
  147  or lienholder legally entitled thereto. The clerk shall be
  148  entitled to receive 5 percent of such proceeds for the care and
  149  disbursement thereof. The certificate of title issued under this
  150  law shall be discharged of all liens unless otherwise provided
  151  by court order. The owner or lienholder may file a complaint
  152  after the vehicle or vessel has been sold in the county court of
  153  the county in which it is stored. Upon determining the
  154  respective rights of the parties, the court may award damages,
  155  attorney’s fees, and costs in favor of the prevailing party.
  156         (10) Persons who provide services pursuant to this section
  157  shall permit:
  158         (a) A vehicle or vessel owner, a lienholder, or an owners,
  159  lienholders, insurance company representative, upon presentation
  160  of documentation of ownership or recorded claim of lien,
  161  including the vehicle or vessel registration, lease or contract,
  162  title certificate, electronic title, or lien sale notice; or
  163         (b) An agent of the vehicle or vessel owner
  164  representatives, or their agents, which agency is evidenced by
  165  an original writing acknowledged by the owner before a notary
  166  public or other person empowered by law to administer oaths,
  168  immediately upon his or her arrival at the storage facility and
  169  before payment of any charges, to inspect the towed vehicle or
  170  vessel and shall release to the owner, lienholder, or agent the
  171  vehicle, vessel, or all personal property not affixed to the
  172  vehicle or vessel which was in the vehicle or vessel at the time
  173  the vehicle or vessel came into the custody of the person
  174  providing such services. Upon receiving the documentation
  175  required under paragraph (a) or paragraph (b) and payment of the
  176  towing and storage charges, the person providing such services
  177  must release the vehicle or vessel to the owner, lienholder, or
  178  agent who paid the charges.
  179         (14)(a) For purposes of this section, the term “third-party
  180  notification service” means a qualified business entity that,
  181  upon a request submitted through a website by a towing-storage
  182  operator:
  183         1. Accesses the Department of Highway Safety and Motor
  184  Vehicles’ database and the National Motor Vehicle Title
  185  Information System to obtain any owner, lienholder, or insurer
  186  information necessary for sending a notice required by this
  187  section;
  188         2. Electronically generates, and provides for the printing
  189  and mailing of, the notice on behalf of the towing-storage
  190  operator;
  191         3. Electronically returns tracking information or other
  192  proof of mailing and delivery of the notice to the towing
  193  storage operator; and
  194         4. Electronically reports to the Department of Highway
  195  Safety and Motor Vehicles, through an electronic data exchange
  196  process that uses the Internet, the following information, as
  197  applicable, related to the notice:
  198         a.The vehicle identification number or vessel hull
  199  identification number;
  200         b.The license plate number;
  201         c.The name and address of the towing-storage operator;
  202         d.The physical location of the vehicle or vessel;
  203         e.The date of the tow;
  204         f.The amount of towing and storage charges owed when the
  205  notice is generated; and
  206         g.The date the notice is mailed and delivered.
  207         (b) A third-party notification service must apply to the
  208  Department of Highway Safety and Motor Vehicles and be approved
  209  in order to provide notices under this section. The department
  210  shall prescribe the format for such applications. The department
  211  may approve a third-party notification service applicant as
  212  qualified to provide the services described in paragraph (a) if
  213  the applicant:
  214         1. Provides the department with a performance bond in the
  215  amount of $1 million issued by a surety company authorized to do
  216  business in this state;
  217         2. Submits an acceptable level 2 internal control and data
  218  security audit, or the equivalent, from an independent certified
  219  public accountant licensed in this state, which audit must have
  220  been conducted within 1 year before applying to the department;
  221  and
  222         3. Successfully demonstrates its ability to electronically
  223  report to the department the required information related to a
  224  towing-storage notice through an electronic data exchange
  225  process that uses the Internet.
  227  To remain eligible to provide notices under this section, an
  228  approved third-party notification service must annually provide
  229  the department with proof it has maintained the performance bond
  230  required under subparagraph 1. and must annually submit to the
  231  department an acceptable audit required under subparagraph 2.
  232  which was conducted within 1 year after the previously submitted
  233  audit.
  234         (c) The department may deny, suspend, or revoke approval of
  235  a third-party notification service if the department determines
  236  that the third-party notification service has committed an act
  237  of fraud or misrepresentation related to a notice required by
  238  this section.
  239         (d) A third-party notification service must maintain all
  240  records related to providing notices under this section for 5
  241  years and allow the department to inspect and copy such records
  242  upon request. The records may be maintained in electronic
  243  format.
  244         (e) In the event there are no third-party notification
  245  services approved by the department, the towing-storage operator
  246  may send any notice required by this section on its own behalf
  247  and must, upon submission of an application for a certificate of
  248  title or certificate of destruction, submit proof of compliance
  249  with this section.
  250         Section 2. This act shall take effect January 1, 2020.