Rule-Making Notices
Notice of Hearings
Transportation
NOTICE IS HEREBY GIVEN that, pursuant to ss.
227.17 and
227.24 (4), Stats., the State of Wisconsin Department of Transportation (“WisDOT") will hold a public hearing on
EmR1425, an Emergency Rule that created Wis. Admin. Code Chapter
Trans 319, relating to towing of vehicles. This emergency rule,
EmR1425, was published and effective on October 2, 2014. WisDOT will hold the public hearing as follows:
Hearing Information
Date: Tuesday, November 11, 2014
Time: 1:30 p.m.
Location: Hill Farms State Transportation Building
4802 Sheboygan Avenue
Room 144B
Madison, WI 53707-7910
Appearances at the Hearing, Submission of Written Comments, and Copies of the Rule
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. As noted below, WisDOT will accept written comments until
November 14, 2014 at 4:30 p.m. Written comments, including those relating to small businesses, may be sent to Laura Vande Hey, WisDOT Division of State Patrol, 4802 Sheboygan Avenue, Room 551, Madison, Wisconsin 53705, (608) 267-5136,
laura.vandehey@dot.wi.gov. Copies of the Fiscal Estimate may be obtained at no charge from Laura Vande Hey as well. The Emergency Rule, Fiscal Estimate, Certification, and Letter to the Legislative Reference Bureau may be viewed at
https://health.wisconsin.gov/admrules/public/Home.Written comments may also be submitted at this internet address. The deadline for submitting comments and this notice of public hearing will be posted on the Wisconsin Administrative Rules Website at
http://adminrules. wisconsin.gov.
Analysis Prepared by the Department of Transportation
Statutes interpreted
Statutory authority
Explanation of agency authority
2013 Wisconsin Act 76 and s.
349.13 (3m) (e), Stats., in relevant part, provide that if a vehicle is illegally parked in a “properly posted" area, it is unnecessary for law enforcement to issue a citation prior to removal of the vehicle.
2013 Wisconsin Act 76 and s.
349.13 (3m) (e), Stats., provide that the State of Wisconsin Department of Transportation shall promulgate rules establishing all of the following:
1.
Reasonable charges for removal and storage of vehicles under this subsection.
2. The form and manner of display of notice necessary to qualify as “properly posted" under par. (a) 2.
3. Guidelines for towing services to notify law enforcement under par. (d) upon removal of a vehicle.
2013 Wisconsin Act 76 provides that, using the emergency rules procedure established under s.
227.24, Stats., the State of Wisconsin Department of Transportation shall promulgate the rules required under s.
349.13 (3m) (e), Stats.
Related statute or rule
Brief summary of the rule
2013 Wisconsin Act 76 and s.
349.13 (3m) (e), Stats., create an exception to a provision under prior law relating to the towing of vehicles parked on private property without permission. Under prior law, vehicles generally could not be removed without the permission of the vehicle owner unless a traffic or police officer issued a citation for illegal parking. The exception created in
2013 Wisconsin Act 76 applies when notice has been “properly posted" stating that unauthorized vehicles may be removed from the property. When the exception applies, an unauthorized vehicle may be towed immediately, regardless of whether a parking citation has been issued, at the request of the property owner or certain other parties specified in
2013 Wisconsin Act 76, subject to certain procedural requirements in
2013 Wisconsin Act 76.
2013 Wisconsin Act 76 requires the State of Wisconsin Department of Transportation to promulgate rules establishing reasonable charges for removal and storage of vehicles; the form, manner of display, of the notice necessary to qualify as “properly posted" under the provisions described above; and guidelines for towing services to notify law enforcement of the removal of a vehicle.
Through this rulemaking, the State of Wisconsin Department of Transportation proposes to execute its obligation in the following manner. First, this rulemaking announces that its purpose is to establish reasonable charges for removal and storage of vehicles pa0[qrked on private property that are not authorized to be parked there, to establish the form and manner of notice of display necessary to qualify as “properly posted" under s.
349.13 (3m) (a) 2., Stats., and guidelines for towing services to notify law enforcement under s.
349.13 (3m) (d), Stats., upon removal of a vehicle. Second, this rulemaking establishes various definitions that apply in Wis. Admin. Code ch.
Trans 319, including, among others, those contained within ss.
340.01 and
349.13 (3m) (a), Stats. Third, this rulemaking establishes a schedule of charges for removal and storage of vehicles. Fourth, this rulemaking establishes that in order to qualify as “properly posted" under s.
349.13 (3m) (a) 2., Stats., a conspicuous notice must be displayed and must contain the words “private property" and “tow-away zone." Fifth, this rulemaking establishes that prior to removal of a vehicle, a towing service must contact the law enforcement agency with primary jurisdiction over the area where the vehicle is parked and provide descriptive information about the vehicle, as well as location and contact information for the location to which the car will be towed.
Summary of, and comparison with, existing or proposed federal statutes and regulations
There is no existing or proposed federal regulation addressing towing vehicles parked on private property that are not authorized to be parked there.
Comparison with rules in adjacent states
Illinois:
Generally, in Illinois, the owner or lessor of privately owned real property or any person authorized by such owner may cause any motor vehicle abandoned or left unattended upon such property without permission to be removed by a towing service without liability for the costs of removal, transportation, or storage or damage caused by such 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 such vehicle is open for towing purposes.
•
The towing service must, within 30 minutes of completion of such towing or removal, notify the law enforcement agency having jurisdiction of such towing or removal, and the make, model, color and license plate number of the vehicle, and shall obtain and record the name of the person at the law enforcement agency to whom such information was reported.
•
If the registered owner or legally authorized person entitled to possession of the vehicle arrives at the scene prior to actual removal or towing of the vehicle, the vehicle must be disconnected from the tow truck and that person shall be allowed to remove the vehicle without interference, upon the payment of a reasonable service fee of not more than one half the posted rate of the towing service, as provided in the law, for which receipt must be given.
•
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.
•
Except for property appurtenant to and obviously a part of a single family residence, and except for instances 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 they are subject to being removed at the owner or operator's expense, 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 5 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, 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 2 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 4 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.
•
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 such services, and post at the storage site an identical rate schedule and any written contracts with property owners, lessor, or persons in control of property which authorize them to remove vehicles as provided in this section. There is a cap, however, set by the Illinois Commerce Commission.
•
No person shall engage in the removal of vehicles from private property without filing a notice of intent in each community where he intends to do such removal, and such notice shall be filed at least 7 days before commencing such towing.
•
No removal of a vehicle from private property shall be done except upon express written instructions of the owners or persons in charge of the private property upon which the vehicle is said to be trespassing.
•
Vehicle entry for the purpose of removal shall be allowed with reasonable care on the part of the person or firm towing the vehicle. Such person or firm shall be liable for any damages occasioned to the vehicle if such entry is not in accordance with the standards of reasonable care.
•
A vehicle towed must be released to its owners or custodian within one half hour after requested, if such request is made within business hours. Any vehicle owner or custodian or agent shall have the right to inspect the vehicle before accepting its return, and no release or waiver of any kind which would release the towing service from liability for damages incurred during the towing and storage may be required from any vehicle owner or other legally authorized person as a condition of release of that vehicle. 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. Payment may be made using any major credit card, in addition to cash.
•
Any person who fails to comply with these conditions and restrictions is guilty of a Class C misdemeanor and shall be fined not less than $100 nor more than $500.
Iowa:
In Iowa, the definition of “abandoned vehicle" includes a vehicle that has been unlawfully parked on private property or has been placed on private property without the consent of the owner or person in control of the property for more than twenty-four hours. A police authority, upon the authority's own initiative or upon the request of any other authority having the duties of control of highways or traffic, may take into custody an abandoned vehicle on private property. The police authority may employ its own personnel, equipment, and facilities or hire a private entity, equipment, and facilities for the purpose of removing, preserving, storing, or disposing of abandoned vehicles. A property owner or other person in control of private property may employ a private entity who is a garagekeeper to dispose of an abandoned vehicle, and the private entity may take into custody the abandoned vehicle without a police authority's initiative. If a police authority employs a private entity to dispose of abandoned vehicles, the police authority shall provide the private entity with the names and addresses of the registered owners, all lienholders of record, and any other known claimant to the vehicle or the personal property found in the vehicle.
A police authority or private entity that takes into custody an abandoned vehicle shall notify, within twenty days, by certified mail, the last known registered owner of the vehicle, all lienholders of record, and any other known claimant to the vehicle or to personal property found in the vehicle, addressed to the parties' last known addresses of record, that the abandoned vehicle has been taken into custody. Notice shall be deemed given when mailed. The notice shall describe the year, make, model, and vehicle identification number of the vehicle, describe the personal property found in the vehicle, set forth the location of the facility where the vehicle is being held, and inform the persons receiving the notice of their right to reclaim the vehicle and personal property within ten days after the effective date of the notice upon payment of all towing, preservation, and storage charges resulting from placing the vehicle in custody and upon payment of the costs of notice required pursuant to this subsection. The notice shall also state that the failure of the owner, lienholders, or claimants to exercise their right to reclaim the vehicle or personal property within the time provided shall be deemed a waiver by the owner, lienholders, and claimants of all right, title, claim, and interest in the vehicle or personal property and that failure to reclaim the vehicle or personal property is deemed consent to the sale of the vehicle at a public auction or disposal of the vehicle to a demolisher and to disposal of the personal property by sale or destruction.
If the abandoned vehicle was taken into custody by a private entity without a police authority's initiative, the notice shall state that the private entity may claim a garagekeeper's lien and may proceed to sell or dispose of the vehicle. If the abandoned vehicle was taken into custody by a police authority or by a private entity hired by a police authority, the notice shall state that any person claiming rightful possession of the vehicle or personal property who disputes the planned disposition of the vehicle or property by the police authority or private entity or of the assessment of fees and charges may ask for an evidentiary hearing before the police authority to contest those matters. If the persons receiving notice do not ask for a hearing or exercise their right to reclaim the vehicle or personal property within the ten-day reclaiming period, the owner, lienholders, or claimants shall no longer have any right, title, claim, or interest in or to the vehicle or the personal property. A court in any case in law or equity shall not recognize any right, title, claim, or interest of the owner, lienholders, or claimants after the expiration of the ten-day reclaiming period.
If it is impossible to determine with reasonable certainty the identity and addresses of the last registered owner and all lienholders, notice by one publication in one newspaper of general circulation in the area where the vehicle was abandoned shall be sufficient to meet all requirements of notice. The published notice may contain multiple listings of abandoned vehicles and personal property but shall be published within the same time requirements and contain the same information as prescribed for mailed notice.
If an abandoned vehicle has not been reclaimed as provided for, the police authority or private entity shall make a determination as to whether or not the vehicle shall be sold for use upon the highways. If the vehicle is not sold for use upon the highways, it shall be sold for junk, or demolished and sold as scrap. The police authority or private entity shall sell the vehicle at public auction. A police authority or private entity may dispose of the vehicle to a demolisher for junk without public auction after complying with the notification procedures. The purchaser of the vehicle takes title free and clear of all liens and claims of ownership, shall receive a sales receipt from the police authority or private entity, and is entitled to register the vehicle and receive a certificate of title if sold for use upon the highways. If the vehicle is sold or disposed of to a demolisher for junk, the demolisher shall make application for a junking certificate to the county treasurer within thirty days of purchase and shall surrender the sales receipt in lieu of the certificate of title.
From the proceeds of the sale of an abandoned vehicle the police authority, if the police authority did not hire a private entity, shall reimburse itself for the expenses of the auction, the costs of towing, preserving, and storing which resulted from placing the abandoned vehicle in custody, all notice and publication costs incurred, the cost of inspection, and any other costs incurred except costs of bookkeeping and other administrative costs. Any remainder from the proceeds of a sale shall be held for the owner of the vehicle or entitled lienholder for ninety days, and shall then be deposited in the road use tax fund. The costs to police authorities of auction, towing, preserving, storage, and all notice and publication costs, and all other costs which result from placing abandoned vehicles in custody, whenever the proceeds from a sale of the abandoned vehicles are insufficient to meet these expenses and costs, shall be paid from the road use tax fund and are the obligation of the last owner or owners, jointly and severally.
If a private entity has been hired by a police authority, the police authority shall file a claim with the State of Iowa Department of Transportation for reimbursement of towing fees which shall be paid from the road use tax fund. Reimbursement shall be limited to $50 per vehicle for towing services, actual postage or publication costs for notice services, $5 per day per vehicle, not to exceed 45 days, for storage services, 10% of the vehicle's sale price or $10, whichever is less, for auction fees.
Michigan:
In Michigan, like in Iowa, the definition of “abandoned vehicle" includes a vehicle that has remained on private property without the consent of the owner. If a vehicle has remained on private property without the consent of the property owner, the owner of the private property may have the vehicle taken into custody as an abandoned vehicle by contacting a local towing agency. A local towing agency is considered a towing agency whose storage lot is located within 15 miles from the border of the local unit of government having jurisdiction over the abandoned vehicle. Before removing the vehicle from private property, the towing agency must provide reasonable notice by telephone, or otherwise, to a police agency having jurisdiction over the vehicle that the vehicle is being removed. The police agency shall determine if the vehicle has been reported stolen and enter the vehicle into the law enforcement information network as an abandoned vehicle.
Within 24 hours after taking the abandoned vehicle into custody, the police agency shall notify the secretary of state through the law enforcement information network that the vehicle has been taken into custody as abandoned. Each notification shall contain the following information:
•
The year, make, and vehicle identification number of the vehicle if available.
