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, published 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
Explanation of Agency Authority:
Wis. Stat. s. 349.13 (3m) (e), as created by 2013 Wisconsin Act 76, provides authority for private towing services to remove vehicles from privately owned parking areas. The act and statute 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 Department with authority to make rules deemed necessary to the discharge of the agency’s powers, functions and duties. It also provides that any person violating a rule adopted under Ch. 349, Stats., who is not subject to a statutory penalty, is subject to a $20 to $400 forfeiture. Violations of the requirements of proposed Ch. Trans 319 will be subject to that statutory forfeiture. Wis. Stat. s. 227.11 (2), provides the Department with authority to “promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute…” Wis. Stat. s. 349.13 (3m) (e), expressly requires the Department to promulgate rules related to subsection Wis. Stat. s. 349.13 (3m), and this proposed rulemaking reflects rulemaking the Department considers necessary to effectuate the purpose of that statutory subsection. Related Statute or Rule: Wis. Stat. s. 349.13 (3m). Brief Summary of the Proposed Rule:
2013 Wisconsin Act 76 and Wis. Stat. s. 349.13 (3m) (e), changed preexisting law governing 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 indicating for whom parking is permitted, limited, restricted or prohibited. If a property is properly posted, a towing service may remove the vehicle at the request of the property owner or the owner’s agent, without involvement of law enforcement, and the charges for that removal are imposed upon the person whose vehicle is towed. Towing services also have the ability to remove vehicles from lands that are not properly posted under Wis. Stat. s. 349.13 (3m) (b) and (d) 1., again at the vehicle owner’s expense, but only after a citation for illegal parking has been issued by law enforcement. Wis. Stat. s. 349.13 (3m) (e) 2., as created by 2013 Wis. Act 76 delegates to the Department of Transportation responsibility for designating what constitutes “proper posting” under these new towing laws. Under this proposed regulation, signs would be required to meet the minimal standards that are set forth in proposed s. Trans 319.04 (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 signs 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 weight 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 for 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 municipality. 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 retrieved 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 Friday 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. The 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.
