STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
The State of Wisconsin Department of Transportation Proposes an Order to Create Permanent Rule Wisconsin Administrative
Code
ch.
Trans 319
Relating to Towing of Vehicles and affecting small businesses.
PROPOSED ORDER
ADOPTING PERMANENT RULE
The Statement of Scope for this
Permanent
Rule, SS
064-14
, was approved by the Governor on July 1, 2014, pub
lished in
Wisconsin Administrative
Register No. 703
on July 14, 2014, and approved by Secretary of the State of Wisconsin Department of Transportation Mark Gottlieb,
P.E.,
as required by
Wis. Stat. s.
227.135
(
2)
,
on July 28, 2014.
On October 15, 2015, the
Wisconsin Department of Transportation
(Department)
submitted this rule to the legislature in final draft form.
The Department proposes an order to create Permanent Rule Wisconsin Administrative Code
ch.
Trans 319
, relating to Towing of Vehicles and affecting small businesses. The analysis below was prepared by the Department.
On November 16, 2015, the Department, on its own initiative, submitted this modified final draft rule to the Assembly Committee on Transportation, Rep. Ripp, Chair, and to the Senate Committee on Transportation and Veterans Affairs, Sen. Petrowski, Chair, during their respective committee review periods, as provided in s.
227.19
(4)
(b)
3.
of
the statutes. The Department believes and intends that these modifications are germane to the proposed rule.
ANALYSIS
Statutes
I
nterpreted:
Wis. Stat. s.
349.13
(
3m)
.
Explanation of Agency Authority:
Wis. Stat. s.
3
49.13
(
3m)
(
e)
,
as c
reated by
2013 Wisconsin Act 76
, provides authority for private towing services to remove vehicles from privately owned parking areas.
The act and statute
requires
the
Department
to
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.
Wis. Stat. s.
85.16
,
provides the
D
epartment 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
D
epartment 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
D
epartment to promulgate rules related to subsection
Wis. Stat. s.
349.13
(
3m), and this proposed rulemaking reflects rulemaking the
D
epartment 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 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
a
sign
be posted
on private property indicat
ing
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 pr
oposed s.
Trans 319.04
(
1
)
.
The sign must contain words indicating that unauthorized parking is prohibited and either state that vehicles may be towed or the symbol for a tow-away zone.
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 signs
must
be erected at each
vehicle
entrance to the parking area
and
be posted in the area where parking occurs in a manner
clearly
visible
and readily legible
to persons at the location of the parked vehicle.
There is no specific height requirement for signs erected at
vehicle entrances
, so long as the signs are conspicuous
, and legible to drivers driving through that entrance
, but s
igns erected in parking areas must be at least four feet above the
parking surface
.
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)
(
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
an
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
excessive charges
, the towing service is not permitted to charge more than ordinary and reasonable charges
related to removal and storage of the vehicle
.
The maximum charges permitted under the proposed rule are as follows:
•
$
150 for a vehicle towed using a flatbed, hook and chain, wheel-lift, boom, or any other method.
•
$
25
for each period of 24 consecutive hours
that the vehicle is stored in an outdoor storage facility.
•
$
35
for each period of 24 consecutive hours that the vehicle is stored in an indoor storage facility.
•
$
150 for any other necessary and commercially reasonable charges relating to
use of
special equipment
required by unusual characteristics of the parked vehicle,
including having a
gross
vehicle wei
ght greater than 10,000 pounds
,
or
required for a vehicle
parked in an area with spatial constraints or limited access to the vehicle that impedes the tow,
and
f
or expenses incurred by the towing service
relating to
towing more than
20
miles
. The rule prohibits additional charges for administrative fees, gate fees, or other services or supplies ordinarily required by the removal or storage of a motor vehicle.
In addition, Wis. Stat. s.
349.13
(
3m)
(
dm
)
, requires the towing service
to
collect an additional service fee
in the amount requested
by the municipality in which a removed vehicle was illegally parked
, up to $35
.
Those fees are then passed along to the municipality
. If a municipality requests payment of such a fee, this rule authorizes the towing service to also charge an additional fee
up to
the same amount
passed along to
the municipal
ity
.
The
statute
prohibits charging the vehicle owner any fees, including the municipal service fee, if the towing service failed to notify the appropriate law enforcement agency before towing, if the property from which the vehicle was towed was not properly posted, or if the vehicle was not illegally parked.
The rule does not create any process for making those determinations.
For purposes of determining the length of time storage charges for a vehicle accrues, 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
duration
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.
The rule
prohibits
storage charges for any
calendar day during which
the storage facility is
open less than 4 consecutive hours for vehicle retrieval
between the hours of 8:00 a.m. and 5:00 p.m.
For example,
a person
’s
vehicle
that
is towed Thursday at 9:00 p.m. and retrieve
d
Monday at 10:00 a.m.
,
is stored for a period of
4
days. If that
storage facility
were
open for vehicle retrieval Monday through
Fr
iday from 10:00 a.m. until 5:00 p.m., Saturday 10:00 a.m. until noon
and
closed Sunday, the person
cannot be charged for storage
for
two
of those days
(Saturday and Sunday)
, and would pay for only
two
days of storage
.
Subdivision 349.13
(
3m)
(
dr
)
2., Stats.,
prohibits
a towing service
from collecting
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.,
by reporting the tow
to law enforcement before removing the vehicle.
Under this proposed rulemaking, the location of the improperly parked vehicle to be towed determines which
law enforcement
agency should be notified
.
Vehicle tows made from locations within municipal boundaries
must be
reported to the municipal police department, if one exists,
or
to the sheriff if there is no municipal police department.
T
he towing service is required to
deliver
the notice to the law enforcement agency’s non-emergency telephone number, unless a different
delivery method
is designated by the law enforcement agency
for providing notices.
The notice provided to law enforcement must include the following information:
•
The
name and telephone number of the towing service.
•
The
make and model of the vehicle being removed.
•
The
license plate number, if license plates are on the vehicle.
•
The
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
removing the vehicle
.
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
veh
icles from private property
.
Comparison with Rules in Adjacent States:
Illinois
:
I
n 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,
T
he
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
cap
ped
, 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 v
ehicle
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 request
ed
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 pay
ment, whether requested or not.
The towing service must accept p
ayment
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.
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
24
hours.
A polic
e 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 an abandoned vehicle on private property
into custody
.
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 autho
rity’
s initiative.
If a police authority employs a private entity to dispose of abandoned vehicles, the police authority
must
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 an abandoned vehicle
into custody
must
notify, within
20
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
.
The notice must be
addressed to the parties
’
last known addresses of record
and indicate
that the abandoned vehicle has been taken into custody.
The notice
must state
the year, make, model, and vehicle identification number of the vehicle, describe
any
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
providing this
notice.
The notice also
must
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 p
roperty by sale or destruction.
Notice is deemed given when mailed.
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 make
s
a determination as to whether the vehicle
should
be sold for use upon the highways.
If the vehicle is to be sold for use on the highways, it must be sold at public auction.
If
the vehicle is not sold for use upon the highways, it
is
sold for junk, or demolished and sold as scrap without public auction after
the required notice period lapses
.
The
vehicle
purchaser
at public auction
takes title free and clear of all liens and claims of ownership, receive
s
a sales receipt from the police authority or private entity
.
If the vehicle is sold for use on highways, the purchaser
is entitled to register the vehicle and receive a certificate of title.
If the vehicle is sold or disposed of to a demolisher for junk
or scrap
, the demolisher
must
appl
y
to the county treasurer
for a junking certificate within
30
days of purchase and
must
surrender the sales receipt in lieu of the certificate of title.
I
f the police authority did not hire a private entity,
the police authority
reimburse
s
itself for the expenses of the auction
from the proceeds of the sale
,
including
the
expenses related to
towing, preserving, and storing
that
resulted from placing the abandoned vehicle in custody,
expenses incurred for providing notice and publication
, cost
s
of inspection, and any other costs incurred
other than
bookkeeping and other administrative costs.
Any remainder from the proceeds of a sale
is
held for the owner of the vehicle or entitled lienholder for
90
days, and
is
then deposited in the road use tax fund.
W
henever the proceeds from a sale of the abandoned vehicles are insufficient to
cover
a
police agency’s
expenses and costs,
the balance is
paid from the road use tax fund and
become an
obligation of the last
vehicle
owner or owners, jointly and severally.
If a private entity has been hired by a police a
uthority, the police authority can
file a claim with the
State of Iowa Department of Transportation
for reimbursement of towing fees which
are
paid from the road use tax fund.
Reimbursement
is
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
must
determine
whether
the vehicle has been reported stolen and
must
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
must
notify the secretary of state through the
Michigan
law enforcement information network that the vehicle has been taken into custody as abandoned.
Each notification contain
s
the following information:
•
The
year, make, and vehicle identification number of the vehicle if available.
•
The
address or approximate location from which the vehicle was taken into custody.
•
The
date on which the vehicle was taken into custody.
•
The
name and address of the police agency that had the vehicle taken into custody.
•
The
name and business address of the custodian of the vehicle.
•
The
name of the court that has jurisdiction over the case.
Within
seven
days after being notified, the secretary of state
must
do both of the following:
•
Enter
this information described on a website maintained by the department for public use in locating vehicles that are removed under this section as abandoned.
•
Send
to the owner and secured party, as shown by the records of the secretary of state, by first-class mail or personal service, notice that the vehicle is considered abandoned.
The Michigan Secretary of State’s form must contain the following information:
•
The
year, make, and vehicle identification number of the vehicle if available.
•
The
location from which the vehicle was taken into custody.
The date on which the vehicle was taken into custody.
•
The
name of the towing agency that had the vehicle taken into custody.
•
The
business address of the custodian of the vehicle.
•
The
procedure to redeem the vehicle.
•
The
procedure to contest the fact that the vehicle is considered abandoned or the reasonableness of the towing fees and daily storage fees.
•
A
form petition that the owner may file in person or by mail with the specified court that requests a hearing on the custodian’s action.
•
A warning that the failure to redeem the vehicle or to request a hearing within 20 days after the date of the notice may result in the sale of the vehicle and the termination of all rights of the owner and the secured party to the vehicle or the proceeds of the sale.
If the towing fees and daily storage fees are established by contract with the local governmental unit or local law enforcement agency they may not be challenged.
Otherwise, the vehicle
owner may contest the fact that the vehicle is abandoned
, and
the reasonableness of the towing fees and
/or the
daily storage fees by requesting a hearing.
A request for a hearing
is
made
by filing a petition with the court specified in the notice within 20 days after the date of the notice.
If the
vehicle
owner requests a hearing, the matter shall be resolved after a hearing.
A
vehicle
owner who requests a hearing may obtain release of the vehicle by posting a towing and storage bond in an amount equal to $40.00 plus the accrued towing and storage fees
with the court
.
Alternatively, t
he
vehicle
may
deposit that amount with the court.
An owner requesting a hearing but not taking possession of the vehicle
must
post with the court a towing and storage bond in an amount equal to $40.00 plus the accrued towing and storage fees.
If the owner does not request a hearing, he or she may obtain the release of the vehicle by paying a fee of $40.00 plus the accrued charges to the custodian of the vehicle.
The custodian
must
forward $25.00 of the fee collected to the secretary of state within 30 days after receipt in a manner prescribed by the secretary of state, who must deposit the fee into the abandoned vehicle fund.
If the owner does not redeem the vehicle or request a hearing within 20 days after the date of the notice, the secured party may obtain the release of the vehicle by paying a fee of $40.00 and the accrued towing and storage fees to the custodian of the vehicle.
The custodian
must
forward $25.00 of the fee collected under this subsection to the secretary of state within 30 days after receipt in a manner prescribed by the secretary of state, who deposit
s
the fee into the abandoned vehicle fund
.
Not less than 20 days after the disposition of the hearing or, if a hearing is not requested, not less than 20 days after the date of the notice, the custodian of the vehicle
must
offer the ve
hicle for sale at a public sale.
If the ownership of a vehicle that is considered abandoned cannot be determined either because of the condition of the vehicle identification numbers or because a check with the records of the secretary of state
does not reveal ownership, the police agency may sell the vehicle at public sale not less than 30 days after public notice of the sale has been published.
The secretary of state
must
release a vehicle for disposition
within 45 days after the vehicle is entered into the law enforcement information network as an abandoned vehicle.
Minnesota
:
In Minnesota, the definition of “abandoned vehicle” includes a motor vehicle that has remained illegally on private property for a period of time without the consent of the person in control of the property; and
that
lacks vital component parts or is in an inoperable condition such that it has no substantial potential for further use consistent with its usual functions, unless it is kept in an enclosed garage or storage building.
Further
, an “unauthorized vehicle”
that is not an abandoned vehicle is
subject to impoundment
at the following times
by units of government and peace officers
if
has been on private property:
•
Immediately
,
if the location is
single-family or duplex residential property
.
•
Immediately
,
if the location
is private, nonresidential property
that is
properly posted
.
•
After
24 hours
,
if the property is
private, nonresidential property,
that is
not posted
.
•
Five
business days after notifying the vehicle owner by certified mail, return receipt requested, of the property owner's intention to have the vehicle removed from the property
,
if the property is
private, nonresidential property of an operator of an establishment for the servicing, repair, or maintenance of motor vehicles
.
•
Immediately
,
if the property is
any
properly posted
residential property
.
•
An
“
unauthorized vehicle
”
may also be towed.
These provisions
,
applicable to
Minnesota
units of government and peace officers
,
do not restrict the authority of the owner of private property to authorize the towing of a motor vehicle unlawfully parked on private property.
P
rivate property owners seeking to have unauthorized vehicles removed from their property must make their own arrangements with a private towing service.
A person who tows and stores a motor vehicle at the request of a law enforcement officer ha
s
a lien on the motor vehicle for the value of the storage and towing and the right to retain possession of the motor vehicle until the lien is lawfully discharged.
An impounded vehicle is eligible for disposal or sale 15 days after notice to the owner, if the vehicle is determined to be an abandoned vehicle. An unauthorized vehicle impounded by the city of Minneapolis or by the city of St. Paul is eligible for disposal or sale 15 days after notice is sent by certified mail, return receipt requested, to the registered owner, if any, of the unauthorized vehicle and to all readily identifiable lienholders of record.
If, before the expiration of the 15
day period following notice of taking, the registered owner or lienholder of record delivers to the impound lot operator a written statement of intent to reclaim the vehicle, the vehicle is not eligible for disposal or sale until 45 days after the notice of taking, if the owner or lienholder has not reclaimed.
If an unauthorized vehicle is impounded, other than by the city of Minneapolis or the city of St. Paul, the impounded vehicle is eligible for disposal or sale the earlier of 45 days after notice to the owner; or the date of a voluntary written title transfer by the registered owner to the impound lot operator.
A voluntary written title transfer constitutes a waiver by the registered owner of any right, title, and interest in the vehicle.
For vehicles
impounded by units of government and peace officers
, the entity taking the vehicle into custody must give written notice of the
impoundment
within five days, excluding Saturdays, Sundays, and legal holidays, to the registered vehicle owner and any lienholders.
The notice must:
•
Set
forth the date and place of the intended impoundment.
•
Provide
the year, make, model, and serial number of the impounded motor vehicle, if
the
information can be reasonably obtained, and the place where the vehicle is being held.
•
Inform
the owner and any
lien holders
of their right to reclaim the vehicle.
•
State
that failure of the owner or
lien holders
to:
•
Exercise
their right to reclaim the vehicle within the time allowed and under the appropriate conditions constitutes a waiver by them of all right, title, and interest in the vehicle and consent to the transfer of title to and disposal or sale of the vehicle.
•
Exercise their right to reclaim the contents of the vehicle within the appropriate time allowed and under the appropriate conditions, constitutes a waiver by them of all right, title, and interest in the contents and consent to sell or dispose of that personal property; and
•
State that a vehicle owner who provides to the impound lot operator documentation from a government or nonprofit agency or legal aid office that the owner is homeless, receives relief based on need, or is eligible for legal aid services, has the unencumbered right to retrieve any and all contents without charge.
T
he notice
must
be sent by mail to the registered owner, if any, of an impounded vehicle and to all readily identifiable lienholders of record.
This information must be made available
to impound lot operators for notification purposes.
If it is impossible to determine with reasonable certainty the identity and address of the registered owner and all lienholders, the notice shall be published once in a newspaper of general circulation in the area where the motor vehicle was towed from or abandoned.
Published notices may be grouped together for convenience and economy.
If an unauthorized vehicle remains unclaimed after 30 days from the date the notice was sent, a second notice must be sent by certified mail, return receipt requested, to the registered owner, if any, of the unauthorized vehicle and to all readily identifiable lienholders of record.
The owner or any lienholder of an impounded vehicle ha
s
a right to reclaim
a
vehicle from the unit of government or impound lot operator taking it into custody upon payment of all towing and storage charges resulting from taking the vehicle into custody within 15 or 45 days, after the date of the notice
.
Nothing impair
s
any lien of a
garagekeeper
, or the right of a lienholder to foreclose.
Summary of the Factual Data and Analytical Methodologies that the Agency Used in Support of the Proposed Rule and How Any Related Findings Support the Regulatory Approach Chosen for the Proposed Rule:
The proposed permanent rule was drafted with input from individual towing services and the Wisconsin Towing Association, governmental entities and the League of Wisconsin Municipalities, the Wisconsin Housing Alliance, the Apartment Association of South Central Wisconsin, the Tenant Resource Center, and members of the public during the public hearing and comment period for an emergency rule promulgated by the Department in 2014.
That emergency rule public hearing and comment period are not considered a public hearing and comment period for this rulemaking.
The Department also held a public hearing on this permanent rule on July 21, 2015
, and took into consideration the public comments it received during that comment period.
The design and display of the required notice in the initial emergency rule was largely based on existing design standards for other signs, such as the requirements for handicapped parking signs set forth in Wis. Admin. Code
ch.
Trans 200
, and standards used in other states.
The guidelines for tow services to provide notice to law enforcement in the initial emergency rule were based on input from law enforcement.
The Department received substantial testimony and comments during the public hearing and comment period for the initial emergency rule.
Many of these comments indicated that the fees in the schedule established in the
initial
emergency rule were lower than what towing services normally charged.
In this permanent rulemaking, the Department proposes that towing industry ordinary or standard rates be permitted, provided they are reasonable and do not exceed maximum
individual
fee limits established in the rule.
Many of the persons commenting on the initial emergency rule further indicated that the fee schedule itself did not account for complex tows involving specialized equipment and procedures.
This proposed permanent rulemaking therefore includes a provision allowing a towing service to charge for necessary and commercially reasonable towing services beyond common tow services and associated storage
.
Analysis Regarding Rule’s Effect on Small Businesses:
This rule affects towing services, private property owners and
vehicle owners, any of which could include small businesses.
There are many towing services
located
throughout the state
that
likely qualify as small businesses under Wis. Stats s.
227.114
.
This rulemaking does not dictate standard fees that are imposed statewide.
Rather, this rule requires a towing service to charge ordinary and reasonable charges for the removal and storage of a vehicle, not exceeding a limit set in this rule.
Because a
towing service’s
current ordinary charges will be permitted to be charged, provided they are reasonable, subject only to the
maximum
limits in this rule, the Department does not believe this rulemaking will have a significant effect upon small business towing services.
Testimony at the public hearing and
a television n
ews report
aired during that time
on the emergency rule suggest
ed
an increasing number of vehicles are being towed from private property, which the department
believes
would occur only if the
provisions set in the
emergency rule were
satisfactory
to private property owners or towing services, or both
, although it is unknown what percentage of these are small businesses
. The department received no comments indicating any significant adverse economic effect on any small business. The department also assumes some of the towed vehicles could belong to small businesses, but received no comments indicating any significant adverse economic effect on those small businesses
,
and
thus
concludes that the rule has no significant effect on vehicles owned by small businesses.
In addition, there may be some expense to small business private property owners who are required
to
post notices in order
for
vehicles
to be towed
without law enforcement involvement under Wis. Stat. s.
349.13
(
3m)
.
Because the posting requirements of Wis. Stat. s.
349.13
(
3m)
, as recreated by
2013 Wis. Act 76
, are different than those required under Wis. Stat. s.
346.55
before passage of the act, new signs may be required containing the disclosures mandated by these two statutes.
The cost of meeting these statutory requirements is placed upon any person posting private property regarding the towing of illegally parked vehicles.
However, small business private property owners are not required to post notices, and so any associated costs can be avoided.
In addition, this rule specifies that the certain size requirements established for posted notices only apply to notices erected after the effective date of the rule, which enables property owners to avoid any significant incurred costs associated with retrofitting existing signs erected on private property.
Agency Contact Person:
Laura Vande Hey
S
tate of Wisconsin Department of Transportation
Division of State Patrol
4802 Sheboygan Avenue Room
551
Madison, Wisconsin 53707
Phone: (608)
709
-
0065
TEXT OF PERMANENT RULE
CHAPTER TRANS 319
TOWING OF UNAUTHORIZED VEHICLES ON PRIVATE PROPERTY
Trans 319.01 Purpose and scope.
(1) The purpose of t
his chapter
is to
interpret and implement s.
349.13 (3m)
,
Stats.,
relating to removal of vehicles on private property that are not authorized to park in that area.
(2) This chapter applies to the towing of vehicles parked on private property under s.
349.13 (3m)
, Stats.
Trans 319.02 Definitions.
Words and phrases defined in s.
340.01
,
Stats.,
have the same meaning in this chapter unless a different definition is specifically provided.
In this chapter:
(2)
“
L
aw enforcement agency” means a county sheriff or municipal police department.
Trans 319.03 Charges for towing and storage.
(1) TOWING SERVICE FEES. A towing service may charge a vehicle owner ordinary and reasonable fees related to removal and storage of the vehicle from private property
under s.
349.13 (3m)
,
Stats.
,
except that no charges may exceed the following
individual total
amounts:
(a) $150 for a vehicle removed using a flatbed, hook and chain, wheel-lift, boom, or any other method.
(b) $
25
for each period of 24 consecutive hours that the vehicle is stored at an outdoor storage facility.
(c) $
35
for
each period of 24 consecutive hours that the vehicle is stored at an indoor
storage facility.
Note:
The
daily storage charge under par. (b)
or
(c) can be
collected by a towing service
the first minute
after notice of the tow is given to a law enforcement agency by the towing service
.
A
second daily storage charge cannot be
collected
until 24 hours after
the time at which notice is given
to law enforcement, subject to the limits for closed
storage
facilities
specified
in
s.
Trans 319
.03 (
4
)
.
(d) $150 for any other necessary and commercially reasonable charges
relating to the use of special equipment in the removal or storage, or both, of the vehicle,
and
for
any expenses incurred by the towing service relating to travel
exceeding
twenty
miles. Administrative
fees, gate fees, lien processing fees
,
or any other fees
for equipment
or procedures
ordinarily required
for
the removal or storage of a vehicle may not be charged under this paragraph. A towing service may
collect
charge
s
under this paragraph only if any of the following applies:
1. The removed vehicle possesses unusual characteristics
,
such as size or mechanical condition
that
make the maximum
removal charge
under par. (a)
unreasonably
low
,
or has a gross
vehicle weight rating or registered weight of 10,001 pounds or more.
2. The location in which the removed vehicle was parked contains
certain spatial constraints or limited access to the parked vehicle impeding the tow that make the maximum removal charge under par. (a)
unreasonably
low.
3
.
The roundtrip travel by the towing service exceeds
20
miles. A towing service may charge a surcharge of $3.00 per mile under this subdivision for miles in excess of
twenty
miles.
Mileage
is based on roundtrip
mileage
from
the storage facility
to return thereto
.
The towing service
shall
establish the
mileage
from the
tow truck
odometer and
shall
include
on the tow slip
the
beginning and ending
odometer readings
to the 1/10 per mile
. If the
tow truck
is dispatched from
a location
other than the
storage facility
, the one-way
mileage
between the
location
from which the vehicle is removed
and
the storage facility
shall
be
multiplied by two
. Mileage fractions less than 5/10 shall be omitted, and mileage fractions of 5/10 or more shall be rounded up to the nearest whole number.
Note:
Purs
uant to s.
349.13 (3m) (
dr
)
2.
,
Stats., a towing service is prohibited from collecting any charges for the removal or storage of an illegally parked vehicle towed under s.
349.13 (3m)
, Stats., if the towing service has not complied with the requirement under s.
349.13 (3m) (d) 2.
, Stats
.
, to notify law enforcement prior to removing the vehicle
.
(2) MUNICIPAL SERVICE FEE. If requested
under s.
349.13 (3m) (
dm
)
, Stats.,
by the municipality in which the removed vehicle was
illegally
parked, the towing service shall charge the vehicle owner a service fee
not exceeding $35
and shall remit this service fee to the municipality. The fee under this subsection is in addition to
any fees charged under sub. (1).
(3) TOW FEE. If the fee under sub. (2)
is
requested by a municipality, the towing service may charge the vehicle owner a service fee not exceeding
the fee amount remitted to the municipality under sub. (2)
.
The
fee under this subsection is in addition to any fees charged under sub
s
. (1)
and (2)
.
(
4
) STORAGE PERIOD. The storage period is the number of
consecutive 24-hour periods
beginning on the date and time that the towing service provides the notice required under s.
Trans 319.05 (
1
)
and ending when the vehicle is retrieved, rounded up to the nearest whole number. No towing service may charge a storage fee for any calendar day that the storage facility is open less than 4 consecutive hours
between the hours of 8
:00 a.m. and 5:00 p.m.
,
for retrieval
of the vehicle
.
Note:
In general, t
he storage charge is the whole number of days
from
towing
until
retrieval, multiplied by the storage
charge
rate
specified under s.
Trans 319.03 (1) (b)
or
(c)
. However, this
sub
section prohibits a daily storage charge for any calendar day during which the storage facility is open less than 4
consecutive
hours
between 8:00 a.m. and 5:00 p.m.
for vehicle retrieval. For example, consider a vehicle towed at 10:20 p.m.
on
Friday and retrieved at 10:00 a.m.
on
Monday, and stored at a facility that is open for vehicle retrieval
on
Saturday from 10:00 a.m. until 2:00 p.m., closed Sunday, and open Monday from 10:00 a.m. until 10:00 p.m. The vehicle
was stored for a period of three days
, but
the vehicle owner
cannot be charged for one of those days
of storage
since the
storage
facility was not open for vehicle retrieval on Sunday; only two days of storage are chargeable
by the towing service
.
Trans 319.
04
Form and manner of display of
notice.
(1
)
FORM OF
POSTING.
(a) The
posted
notice shall be clearly visible and displayed in either
of the following
formats
:
1.
A notice consisting of a word message that indicates the parking of unauthorized vehicles is prohibited and that unauthorized vehicles may be removed.
2.
A notice consisting of the symbol for a tow-away zone and a word message that indicates the parking of unauthorized vehicles is prohibited.
(
b
) The letters
contained in a word message under par. (a)
shall
be
not less than 2 inches in height and in a color that contrasts with the background on which the notice is printed.
The size requirement under t
his paragraph applies only to notices erected after
the effective date of this rule [Revisor insert date].
(2) MANNER OF POSTING. A parking area is properly posted if
all
of the following apply:
(
a
)
A
n
otice is erected at each vehic
le
entrance to the parking area or property
that
is conspicuous and
readily
legible to operators of vehicles driving through that entrance.
(
b
)
A n
otice is
erected that is
conspicuous and
readily
legible to persons at the location of the parked vehicle. The bottom of
the
notice shall be at least 4 feet above the parking area surface.
The size requirement under t
his paragraph applies only to notices erected after
the effective date of this rule [Revisor insert date].
Trans 319.05 Towing service notification requirements.
(1)
NOTICE OF
Tow to
Law Enforcement
.
Prior to removing a vehicle from private property pursuant to s.
349.13 (3m)
, Stats., a towing service shall
give
notice of the impending tow to the police department for the municipality in which the vehicle is parked or, if
that
municipality has no police department, the sheriff of that county. The towing service shall deliver the notice to the law enforcement
agency’s non-emergency telephone number,
unless a different delivery method is designated by the law enforcement agency that is any of the following
:
(a) By telephone, including voice mail, answering machine or answering service capable of recording messages.
(b)
By transmission to
an
electronic mail address
specified by the law enforcement agency.
(c) By any other electronic means, including computerized or web-based systems capable of receiving and storing information from towing services related to the removal of vehicles
parked on private property
.
(2
) CONTENTS OF N
OTICE. A towing
service shall include the following information in a notice under sub. (1):
(a) The name and telephone number of the towing service.
(b) The make and model of the vehicle being removed.
(c) The license plate number of the vehicle being removed, unless license plates a
re not attached to the vehicle.
(d) The vehicle identification number
of the vehicle being removed
, unless the vehicle identification number is not visible through the vehicle windshield adjacent to the left windshield pillar.
Note:
49 CFR s. 565.13
, requires that vehicle identification numbers (VINs) be affixed to passenger cars, multi-purpose passenger vehicles, low-speed vehicles and trucks of 4,536 Kg or less (10,000 lbs.) adjacent to the left windshield pillar. The vehicle manufacturer is required to make the VIN visible; however, it may be obstructed b
y materials within the vehicle.
(e) The location from which the vehicle will be removed.
(f) The
address of the location
to
which the vehicle will be
removed
and, if that location is not operated by the towing service removing the vehicle, the name of the operator at the location.
(g) A phone number of the location identified in par. (f).
(3)
Records of notices
. A law enforcement agency receiving notice under this section shall maintain a record of the information received under sub. (2)
and
a record of the date and time that the notice was given. The records shall be maintained for at least 60 days after the date on which notice was given. If
the owner or
person
authorized by the owner of
a removed vehicle
under s.
349.13 (3m)
, Stats.,
requests information
related to the tow
, the law enforcement agency shall immediately provide to th
at
person the name and telephone number of the towing service, the date and time
that
the vehicle was towed, the
address of the location
to
which the vehicle
was removed
and, if that location is not operated by the towing service
that
remov
ed
the vehicle, the name and telephone number of the operator at the location.
SECTION 2.
INITIAL APPLICABILITY. This rule first applies to vehicles that are
illegally
parked on private property on the effective date of this rule.
(END OF RULE TEXT)
Signed this
8
th
day of
January 2016
.
