STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
The State of Wisconsin Department of Transportation Proposes an Order to Create Emergency Rule Wisconsin Administrative Code ch. Trans 319 Relating to Towing of Vehicles, and affecting small businesses.
PROPOSED ORDER ADOPTING EMERGENCY RULE
The State of Wisconsin Department of Transportation (Department) Proposes an Order to create Emergency Rule Wisconsin Administrative Code ch. Trans 319, Relating to Towing of Vehicles, and affecting small businesses. The analysis below was prepared by the Department.
Explanation of Agency Authority:
Wis. Stat. s. 349.13(3m)(e), as created by 2013 Wisconsin Act 76, provides authority for private towing services to remove vehicles from privately owned parking areas. The act and statute provide that the Department shall promulgate rules establishing all of the following:
1. Reasonable charges for removal and storage of vehicles under Wis. Stat. s. 349.13(3m).
2. The form and manner of display of notice necessary to qualify as “properly posted” under Wis. Stat. s. 349.13(3m)(a)2.
3. Guidelines for towing services to notify law enforcement under Wis. Stat. s. 349.13(3m)(d), upon removal of a vehicle.
Further, 2013 Wisconsin Act 76 s. 59, provides that the Department shall promulgate the permanent rule required under Wis. Stat. s. 349.13(3m)(e). Wis. Stat. s. 85.16, provides the Department with authority to make rules deemed necessary to the discharge of the agency’s powers, functions and duties. It also provides that any person violating a rule adopted under Ch. 349, Stats., who is not subject to a statutory penalty, is subject to a $20 to $400 forfeiture. Violations of the requirements of proposed Ch. Trans 319 will be subject to that statutory forfeiture.
Wis. Stat. s. 227.11(2), provides the Department with authority to “promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute…” Wis. Stat. s. 349.13(3m)(e), expressly requires the Department to promulgate rules related to subsection Wis. Stat. s. 349.13(3m), and this proposed rulemaking reflects rulemaking the Department considers necessary to effectuate the purpose of that statutory subsection.
Related Statute or Rule: Wis. Stat. s. 349.13(3m).
Brief Summary of the Proposed Rule:
2013 Wisconsin Act 76 and Wis. Stat. s. 349.13(3m)(e), changed preexisting law governing to the towing of vehicles parked on private property without permission. Under Wis. Stat. s. 349.13(3m) (2011), vehicles generally could not be removed from a private parking lot or facility without permission of the vehicle owner unless a repossession judgment was entered, or a traffic or police officer issued a citation for illegal parking. Persons were generally prohibited from parking on private lands without consent of the property owner or lessee, Wis. Stat. s. 346.55(3). Signs related to parking on private property were only required to indicate for whom parking was permitted, limited, restricted or prohibited, Wis. Stat. s. 346.55(4). Under Wis. Stat. s. 349.13(3m)(c) and (d)1., as repealed and recreated by 2013 Wis. Act 76, only a towing service may now remove vehicles from private lands (not just parking lots and facilities). Under Wis. Stat. s. 349.13(3m)(a)2., parking signs on private lands must indicate that the area is private property and that unauthorized vehicles may be immediately towed. In addition, Wis. Stat. s. 346.55(4) requires that no parking signs on private property indicate for whom parking is permitted, limited, restricted or prohibited. If a property is properly posted, a towing service may remove the vehicle at the request of the property owner or the owner’s agent, without involvement of law enforcement, and the charges for that removal are imposed upon the person whose vehicle is towed. Towing services also have the ability to remove vehicles from lands that are not properly posted under Wis. Stat. s. 349.13(3m)(b) and (d)1., again at the vehicle owner’s expense, but only after a citation for illegal parking has been issued by law enforcement. Wis. Stat. s. 349.13(3m)(e)2., as created by 2013 Wis. Act 76 delegates to the Department of Transportation responsibility for designating what constitutes “proper posting” under these new towing laws. Under this proposed regulation, signs would be required to meet the minimal standards that are set forth in proposed s. Trans 319.04(2) and (3). No specific design is mandated. The sign must be conspicuously colored and legibly marked and contain contrasting letters not less than two inches in height indicating that parking of unauthorized vehicles is not allowed and that unauthorized vehicles may be towed. There is no requirement that the signs resemble or be colored consistently with no parking signs used on highways that conform to the Manual on Uniform Traffic Control Devices. The new signs can be erected at each entrance to the parking area or be posted in the area where parking occurs in a manner visible to persons at the location of the parked vehicle. There is no specific height requirement for signs erected at entrances and exits, so long as the signs are conspicuous. Signs erected in parking areas must be at least seven feet above the level of the parking location so that they are visible above parked cars.
Under Wis. Stat. s. 349.13(3m), no posting exemption is established for areas on private property that are not intended for motor vehicle parking or storage. This rulemaking does not establish any exception for those areas. Therefore, if a person parks on a residential property’s front lawn, for example, where signs meeting the requirements of this rulemaking are not posted, the issuance of a repossession judgment or the issuance of a citation for illegal parking will be a prerequisite to removing the vehicle by tow service.
With regard to the Wis. Stat. s. 349.13(3m)(dr)(e)1., requirement that this rulemaking establish reasonable charges for removal and storage of vehicles parked without authorization from private property, the Department proposes in s. Trans 319.03 to allow a towing service to charge the towed vehicle owner its ordinary and reasonable charge for hooking up and towing a vehicle and storing a vehicle, but sets maximum amounts that may be charged. Because charges for towing and storage may vary widely from community to community across this state, and because the costs of labor and real estate to the towing company will vary widely across the state, the Department has not attempted to establish set rates for these services. To protect consumers from being unconscionably gouged by an unscrupulous actor, the towing service is not permitted to charge more than its ordinary and reasonable charges.
The maximum charges permitted under the proposed rule are as follows:
• $150 to tow a vehicle, regardless of whether the tow is via a flatbed, hook and chain, wheel-lift, sling or belt lift, boom tow, or other method.
• $30 per 24 hours that the vehicle is stored in an outdoor storage facility.
• $50 per 24 hours that the vehicle is stored in an indoor storage facility.
• Any other necessary and commercially reasonable charges generally imposed upon the owners of towed vehicles by the towing service, including charges related to special or unusual towing services, not to exceed $150.
In addition, Wis. Stat. s. 349.13(3m)(dm), requires the towing service to collect an additional service fee not exceeding $35 if collection of the fee has been requested by the municipality in which a removed vehicle was illegally parked. Those fees are then passed along to the municipality.
For purposes of determining the length of time storage charges for a vehicle accrue, the proposed rule uses the date and time that the towing service provides notice of the towing to law enforcement as the beginning of the storage period. This provides the towing service and towed person with a reliable third party who can establish the time at which the tow occurred. Although that time would include the time of the actual tow to the storage facility in the calculation of the storage period, in the context of per-day storage charges, the short amount of time needed for the actual tow does not significantly affect the time calculation. The benefit of having a reliable beginning time outweighs the minor discrepancy in time used for the actual tow.
Subdivision. 349.13(3m)(dr)2., Stats., provides that a towing service may not collect any charges for the removal or storage of an illegally parked vehicle towed pursuant to s. 349.13(3m), Stats., unless the towing service complied with s. 349.13(3m)(d) 2., Stats., and made the required report to law enforcement before removing the vehicle.
Under this proposed rulemaking, the location of the improperly parked vehicle to be towed determines which agency should be notified. The county sheriff is the default agency to which a tow should be reported under Wis. Stat. s. 349.19(3m)(dr)1., unless the vehicle is parked within the boundaries of a municipality that has a police department. Vehicle tows made from locations within municipal boundaries are reported to the municipal police department, if one exists, and to the sheriff if there is no municipal police department. If the relevant law enforcement agency designates a mechanism for making tow reports to it, the towing service is required to use that mechanism for making reports. If the law enforcement agency does not designate a mechanism for reporting to it, the report may be made to any non-emergency recorded telephone line of that law enforcement agency.
The report to law enforcement must include the following information:
• The name and telephone number of the towing service.
• The make, model and color of the vehicle being removed.
• The license plate number or vehicle identification number for the vehicle, if visible.
• The location from which the vehicle will be removed.
• The address and phone number of the storage location to which the vehicle will be towed.
• The name of the operator of the storage facility if the storage location is not operated by the towing service.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
There is no existing or proposed federal regulation that governs the towing of vehicles from private property.
Comparison with Rules in Adjacent States:
In Illinois, the owner or lessor of privately owned real property, or any person authorized by the owner, may have any motor vehicle that is abandoned or left unattended upon property without permission to be removed by a towing service, without liability for the costs of removal, transportation, or storage or for damage caused by the removal, transportation, or storage. The towing or removal of any vehicle from private property without the consent of the registered owner or other legally authorized person in control of the vehicle is subject to compliance with the following conditions and restrictions:
• Any towed or removed vehicle must be stored at the site of the towing service’s place of business. This site must be open during business hours, and for the purpose of redeeming vehicles, during the time that the person or firm towing that vehicle is open for towing purposes.
• The towing service must, within 30 minutes of completion of any towing or removal, notify the law enforcement agency having jurisdiction of such towing or removal, of the towed vehicle’s make, model, color and license plate number, and must obtain and record the name of the person at the law enforcement agency to whom the information was reported.
• If the registered owner or legally authorized person entitled to possession of the vehicle arrives at the towing scene prior to actual removal or towing of the vehicle, the vehicle must be disconnected from the tow truck and that person must be allowed to remove the vehicle without interference, The person is required to first pay a “reasonable service fee” of not more than one-half the posted rate of the towing service, and must be given a receipt.
• The rebate of payment or payment of money or any other valuable consideration from the towing service or its owners, manager, or employees to the owners or operators of the premises from which the vehicles are towed or removed, for the privilege of removing or towing those vehicles, is prohibited. Any person who violates this requirement is guilty of a Class A misdemeanor.
• With limited exceptions, any property owner or lessor, prior to towing or removing any vehicle from the private property without the consent of the owner or other legally authorized person in control of that vehicle, must post a notice meeting the following requirements:
• Generally, the notice must be prominently placed at each driveway access or curb cut allowing vehicular access to the property within five feet from the public right-of-way line. If there are no curbs or access barriers, the sign must be posted not less than one sign each 100 feet of lot frontage. Alternatively, in a municipality with a population of less than 250,000, the notice for a parking lot contained within property used solely for a 2-family, 3-family, or 4-family residence may be prominently placed at the perimeter of the parking lot, in a position where the notice is visible to the occupants of the vehicles entering the lot.
• The notice must indicate clearly, in not less than two inch high light-reflective letters on a contrasting background, that unauthorized vehicles will be towed away at the owner’s expense.
• The notice must also provide the name and current telephone number of the towing service towing or removing the vehicle.
• The sign structure containing the required notices must be permanently installed with the bottom of the sign not less than four feet above ground level, and must be continuously maintained on the property for not less than 24 hours prior to the towing or removing of any vehicle.
• The posted notice requirement does not apply to property appurtenant to and obviously a part of a single family residence. Nor does it apply where notice is personally given to the owner or other legally authorized person in control of the vehicle that the area in which the vehicle is parked is reserved or otherwise unavailable to unauthorized vehicles and the vehicle is subject to being removed at the owner or operator’s expense,
• Any towing service that tows or removes vehicles and proposes to require the owner, operator, or person in control of the vehicle to pay the costs of towing and storage prior to redemption of the vehicle must file and keep on record with the local law enforcement agency a complete copy of the current rates to be charged for its services. They must also post an identical rate schedule at the storage site and notice of any written contracts with property owners, lessor, or persons in control of property which authorize them to remove vehicles as provided in this section. Rate schedules are capped, however, at rates set by the Illinois Commerce Commission.
• No person may engage in the removal of vehicles from private property in Illinois without filing a notice of intent in each community where he intends to do remove vehicles from private lands. The notice must be filed at least seven days before the person begins towing vehicles from private properties.
• Vehicles may only be removed from private property upon express written instructions of the owners or persons in charge of the private property upon which the vehicle is allegedly trespassing.
• Towing services may open a vehicle to be towed for the purpose of effectuating the tow. The towing service must exercise reasonable care in entering the vehicle and conducting the tow. The towing service is liable for any damage caused to the vehicle if reasonable care is not used when gaining entry to the vehicle.
• A vehicle towed must be released to its owners or custodian within one-half hour after requested, if requested during business hours. Any vehicle owner, custodian or agent has the right to inspect the vehicle before accepting its return. Towing services are prohibited from demanding a release or waiver of any kind which would release the towing service from liability for damages incurred during the towing and storage. A detailed, signed receipt showing the legal name of the towing service must be given to the person paying towing or storage charges at the time of payment, whether requested or not. The towing service must accept payment by any major credit card or cash.
• A person or towing service who fails to comply with these conditions and restrictions is guilty of a Class C misdemeanor and may be fined not less than $100 nor more than $500.