Wellford passes non-consensual towing ordinance

towing tow truck generic
FILE: Wikicommons

WELLFORD, SC (WSPA) – Wellford City Council passed an ordinance that would set a maximum of what towing companies can charge for non-consensual tows on privately-owned commercial property.

It is effective immediately.

City officials say they became aware of incidents where owners were charged fees that were “substantially high,” according to the city.

They say the ordinance would require operators that work with privately-owned commercial property to register with the city and set requirements for signage for enforcement.

The ordinance is similar to one that Spartanburg City Council recently considered.

Here is the full ordinance

STATE OF SOUTH CAROLINA )
COUNTY OF SPARTANBURG )
CITY OF WELLFORD ) ORDINANCE NO. 2017-0404

“WRECKERS AND WRECKING SERVICES
TO PROVIDE FOR “NONCONSENSUAL BOOTING AND TOWING.”

WHEREAS, the City of Wellford will establish a schedule of maximum rates that can be charged for vehicle towing and storage from public rights-of-way; and
WHEREAS, there are at present no maximum rates for the towing and storage of vehicles
towed from privately-owned commercial property; and
WHEREAS, the Wellford Police Department personnel have become aware of incidents
when vehicles were towed from privately-owned commercial property and the vehicle owner was charged towing-related fees that were significantly higher than rates permitted for towing from the public rights-of-way; and
WHEREAS, an ordinance is desired to protect the public and reasonably
balance the property rights and interests associated with the towing of privately-owned vehicles
from privately-owned commercial property.

NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND MEMBERS OF
COUNCIL OF THE CITY OF WELLFORD, SOUTH CAROLINA, IN COUNCIL
ASSEMBLED:

SEC. 01-01. NONCONSENSUAL BOOTING AND TOWING.
(a) City recognizes the rights of real property owners to restrict or prohibit the parking of motor vehicles on their premises without their consent,
or without appropriate payment when consent is given, and recognizes that parking on privately-owned commercial property without the
property owner’s consent is a misdemeanor under S.C. Code 1976, § 16-11-760 if the owner has posted notice at a conspicuous place.
(b) City nonetheless finds as follows:
(1) When a lot owner consents to parking by the public but requires payment in all or some instances, state statutes do not fully address the balance between lot owners or managers and vehicle motorists.
(2) Increasingly, there are instances of vehicles being towed from privately-owned commercial property, or instances of wheels being booted while the vehicles are on privately-owned commercial property, without the vehicle owners having been given sufficient notice that parking on the premises is not authorized, or without vehicle owners having been warned of the specific consequences.
(3) There are no clear and objective standards under state statutes for what constitutes a conspicuously posted notice.
(4) Restricting the use of spaces in private lots to paying monthly parkers or requiring other users to make payment on a basis of payment per occasion of use is not a predatory practice. However, the willful inducement to use a private lot with an expectation to levy additional charges beyond normal parking fees as a precondition of exiting the lot is a predatory practice.
(5) Predatory towing practices involving vehicles parked on lots associated with residential properties, primarily apartment complexes, is also a problem which can disproportionately impact the working poor who face the choice between paying what in some instances are excessive towing-related fees and the loss of their vehicle.
(6) Excessive charges for nonconsensual booting and towing, as well as the refusal of certain towing services to release vehicles prior to
their being towed even when the vehicle owner is prepared to provide payment for the vehicle, constitute predatory practices, as
do efforts to patrol and wait for offenders to park their vehicles in insufficiently posted parking lots.
(7) Predatory booting and towing practices of businesses offering booting and towing services to real property owners can have a
detrimental impact on the business climate of restaurants and other commercial establishments whose patrons sometimes park in lots with either no notices or inadequate notices posted.
(8) Predatory booting and towing practices can impose excessive hardships on drivers who have not intentionally acted in bad faith in parking vehicles on privately-owned commercial property in many circumstances.
(9) Poorly marked and inadequately staffed parking lots lead to confrontations between motor vehicle drivers and providers of booting services and towing services to substantially the same extent as deliberately predatory entrapments, and the confrontations lead to calls for a police department response.
(10) Establishing reasonable rules of conduct is a good means of balancing the bona fide interests of property owners, booting providers and towing providers, with the interests of the parking public and businesses whose patrons need parking.
(11) The city can reconcile the rights of real property owners with the public interest of promoting commercial areas in the city as regional destinations by requiring certain warning signs to be posted at lots where booting and towing are used as enforcement tools by real property owners and by establishing reasonable measures to regulate privately-owned commercial lot owners and towing and booting service providers.
(12) Booting inevitably results in a high instance of angry confrontations which disturb the peace and threaten public order.

SEC. 02-01. DEFINITIONS.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Boot or locking wheel boot means a mechanical clamp or device that is professionally manufactured and designed to lock the wheel on a motor vehicle thus immobilizing the vehicle and preventing anyone but the key holder of the device from removing it.
Deliver means placing a towed motor vehicle in the actual possession of the owner, authorized operation or authorized agent of the owner.
Lot or parking lot means any privately-owned place which is used for parking motor vehicles while leaving them unattended. The term “lot” or “parking lot” includes places which customarily make per use charges or require lease payments from users, and it also includes places where no charges or payments are ordinarily assessed, whether the places are associated with a particular building or stand alone.
Motor vehicle means any car, truck, motorcycle, or similar equipment which has wheels and is propelled by an engine and which is capable of moving on the public ways of the city.
Nonconsensual booting means the booting of a vehicle which is authorized or directed by a person other than the vehicle owner, authorized operator or authorized agent of the owner. Nonconsensual towing means the towing of a vehicle from property other than the public right-of-way which is authorized or directed by a person other than the vehicle owner, its authorized operator or an authorized agent of the owner.
The term “nonconsensual towing” shall not apply to nonconsensual tows that occur as a result of vehicle repossession by a lien holder having title to the vehicle.
Privately-owned commercial property booting means the booting of a motor vehicle from private real property at the request of the property owner or the agent of the privately-owned commercial property owner. Privately-owned commercial property towing means the towing of a motor vehicle from private real property at the request of the property owner. Property owner means the person or business entity which owns and occupies real property. For real property which is leased, the term “property owner” shall mean the lawful lessee with occupancy and control of the premises. Control of the premises with the authority to refuse admittance to the property is the factor which determines the status of “owner” under the sections which follow.
Towing operator means any person, company or partnership, engaged in the business of towing or storing towed vehicles, and the term includes the employees of the individual or business entity engaged in such business.

SEC. 03-01. WARNING SIGN FOR NONCONSENSUAL BOOTING AND
TOWING.
(a) It shall be unlawful to charge for the nonconsensual towing of any motor vehicle from any parking lot located upon privately-owned commercial property without authorization from the owner of the motor vehicle or of the city, or to request the provider of booting or towing services to engage in such actions, except under the following circumstances:
(1) The property owner has posted the property at each vehicular entrance to the property with a sign approved by the city manager, or his
designee, and having been determined to be conspicuous for the property and entrance concerned so as to be clearly visible by the person of ordinary sensibilities upon entrance to the property. The name and telephone number of the towing service provider must appear on or immediately below the sign.
(2) All signage must be approved by the city manager as complying with the provisions of this section. The city manager may direct the traffic
services division to develop a standard sign in compliance with the criteria of this section. The standard sign shall be made reasonably
available to lot owners and their representatives in an electronic format which can be utilized by private sign vendors for the manufacture of
the standard sign. The traffic services division shall develop standard signs at cost to requesting lot owners or their representatives.
(3) Signs shall be placed at the entrance of each parking lot of privately-owned commercial property or in a position that is clearly and
unmistakably visible to a driver upon entering the lot. The exact placement must be approved by the city manager or the city manager’s
designee in order to ensure that the sign can be seen by drivers of motor vehicles upon entering the parking lot. Additional signs may be placed elsewhere in the lot at the owner’s discretion.
(4) The city manager, or the city manager’s designee, may require that the required signage be placed on a sandwich board sign frame, or
comparable temporary frame, at ground level of all entrances whenever a lot begins operation as a pay per use lot on a temporary basis, or
whenever other circumstances such as physical configuration of the lot or its relation to the right-of-way or other properties reasonably require
in order to meet the purposes of this section.
(b) The requirements of subsection (a) of this section are in addition to, and not in lieu of, the provisions of S.C. Code 1976, § 16-11-760(A) requiring the posting of privately-owned commercial property before an unauthorized vehicle can be towed without the vehicle owner’s consent.

SEC. 04-01. PAYMENT AND PROCEDURES FOR NONCONSENSUAL
BOOTING AND TOWING.
(a) Subject to Section 06-01 which sets forth all allowable non-consensual towing-related charges. The owner of the vehicle which is towed in
accordance with this section shall be responsible for paying all applicable towing-related charges provided that the real property owner has complied with all of the requirements contained in Section 02-01.
(b) No provider of towing services shall tow a motor vehicle from a parking lot located upon privately-owned commercial property without the owner’s consent without first having obtained a written authorization for such action from the property owner, and without the authorization showing the name and bearing the signature of the property owner. The authorization may be in the form of a written agreement to cover all nonconsensual towing for a particular lot for a specific term.
(c) Any towing operator performing a nonconsensual tow, shall within 60 minutes of the removal of the vehicle from the private lot, telephone the police department to make an oral report of the tow by providing the applicable information on the tow record/invoice form described in Section 05-01. Any towing operator which fails to give such notice within one hour of the time the vehicle was towed shall not be entitled to any compensation for the towing and storing operation and shall deliver the vehicle to the owner upon request.
(d) If a driver of a vehicle to be towed arrives prior to removal of the vehicle from the posted property, then the towing operator must accept payment tendered at the scene and release the vehicle immediately. For payment tendered at the scene, the required payment can be no more than one-half the maximum authorized for nonconsensual towing in Section 06-01.

SEC. 05-01. PERMIT REQUIRED.
(a) No provider of services for towing vehicles from privately-owned commercial property shall operate within the corporate limits of the city
without obtaining a permit for that purpose from the city manager or the city manager’s designee. The permit shall be in addition to, and not in lieu of, any business license permit otherwise required under this Code.
(b) The city manager or the city manager’s designee shall develop such forms as may be appropriate for the application for the permit, which shall be approved as to form by the city attorney, and may refrain from issuing a permit without the information on the form being complete. The information required shall include, as may be relevant to the service, the principal operating the business, the street and mailing address of the business, the street address of where towed vehicles will be stored, the state of incorporation of the business, persons having an ownership of five percent or greater in the business, telephone numbers where persons operating the business can be reached at any time of the day or evening, a description of all equipment to be used, the name and address of other businesses from whom equipment will be leased or borrowed, a list of properties where the business is authorized by the property owners to boot vehicles or have them towed, a certification that changes in the information will be updated in writing prior to the changes taking effect, an acknowledgement that a violation of this chapter is a basis for the revocation of the permit or of the business license, or both.
(c) No permit shall be issued absent copies of certificates of insurance, from an insurance carrier authorized to do business in this state, evidencing general liability insurance, and such additional lines of coverage as the city manager determines to be relevant to the business, in such uniform and standard amounts as the city manager or the city manager’s designee determines to be reasonable, considering the exposure to harm by the general public.
(d) The books and records of all providers of towing services shall be subject to inspections and audits, and must be kept at the office location identified on the permit application. Failure to keep such books and failure to make all books kept available for inspection and audit by the city when access is requested is a basis for suspension or revocation of permits under this section and a basis for suspension or revocation of the provider’s business license.

SEC. 06-01. MAXIMUM CHARGES FOR TOWING, BOOTING AND FEES
RELATED THERETO; METHODS OF PAYMENT AND
INVOICE/RECEIPTS.
(a) Charges made to vehicle owners or operators for nonconsensual towing of motor vehicles on privately-owned commercial property shall be limited to the following:
Booting & Towing Fees
Fees relative to booting and towing of motor vehicles parked without permission on privately-owned commercial property within the city
Booting and towing permit fee $ 25.00 Maximum booting charge from private lot 50% of tow cost Maximum towing charge from private lot $100.00

Vehicles less than 26,000 pounds
City-provided sign (each) $25.00
Maximum Storage charges for impoundment $20.00
Applicable only after 24 hours of storage) $20.00
Maximum disconnect fee 50% of tow cost
DMV Processing Fee $35.00
Authorized processing fee for any vehicle retained for
five (5) or more days, as a tow company incurs direct costs
with DMV after retention of five (5) or more days.
Dolly Fee Authorization $40.00
Authorized fee when all four-wheel drive vehicles must be
dollied to safely move
Weather Wrap Fee – Per window/sunroof wrapped $10.00
Authorized fee for open windows and sunroofs that require
weatherproof wrapping
Vehicles Exceeding 26,000 pounds – Maximum Fee $400.00
Authorized fee for vehicles exceeding 26,000 pounds in weight
(b) The maximum fees set forth above in subsection (a) shall be set by the city manager from time to time. All other fees and charges are prohibited.
(c) The city manager shall set the fee in an amount that is high enough that property owners can reasonably expect to receive timely service from competent providers when a request for service is placed. However, the fee shall not be so high that it is punitive. The removal or immobilization of the vehicle having been found to be sufficiently punitive that an additional monetary penalty is unwarranted.
(d) Every provider of nonconsensual towing services must provide to a motor vehicle owner or operator an invoice and receipt, or a combination form serving as an invoice which can become a receipt upon payment from the motor vehicle owner or operator. The invoice/receipt must be capable of being prepared in duplicate, with an original provided to the vehicle owner, and the duplicate to be retained by the service provider for not less than three years. The form shall show the name and telephone number of the service provider. It shall reflect the time, date and place of booting or towing, and the time and date of accepted payment. It must bear the signature or initials of the person accepting payment. The city manager may develop additional information requirements which are reasonably related to the purposes of this chapter.
(e) Any violation of this Ordinance may subject the offender to fines of up to $500 per violation and/or 30 days in prison or a revocation of its business license.

This Ordinance shall become effective immediately upon second reading. DONE and RATIFIED this 11th day of April, 2017.

First Reading: April 4, 2017
Second Reading: April 11, 2017

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