Chapter 5.70 CONTRACT-PATROL TOWING OPERATIONS

A. The operations of radio-dispatched tow truck services that, on a contract basis, make periodic patrols of the parking facilities of large apartment and multifamily residential complexes to locate and tow away or impound illegally or improperly parked motor vehicles, while providing a useful service to the property owners or lessees in question and/or their apartment managers, have resulted in numerous complaints to the city from residents concerning the methods employed and the substantial fees charged, and have led to an inordinate number of public disturbances and serious altercations requiring the response of city police officers.

B. Many of the citizen complaints received by the city council at the several public hearings held concerning this matter have indicated that many of the problems from these contract-patrol tow truck operations have been caused in large by:

1. The general lack of adequate notice or warning concerning parking regulations and the serious consequences of violation to vehicle drivers who may park in improper places;

2. The lack of personal involvement from the apartment owners or managers in connection with the vehicle impoundment so as to preclude any input concerning pertinent facts or variable situations which might affect the impound process;

3. The apparent swiftness of the entire impoundment procedure which often results in the towing of vehicles parked improperly for only very brief periods; and

4. Effective process to dispute the towing of a vehicle, but only the remedy of an immediate large cash payment to retrieve one’s vehicle to avoid an actual towing at considerable additional expense.

C. Prior to the commencement of such contract-patrol towing operations in the city, the police department had received few, if any, complaints concerning the towing of motor vehicles from private property. (Ord. 664 § 1 (Exh. A), 1984)

5.70.020 Legislative purpose and intent.

The purpose and intent of this chapter is to exercise the general police power of the city to provide for the orderly regulation of the business of tow truck operators that, pursuant to contract, patrol private parking facilities to impound and tow away illegally or improperly parked vehicles by establishing certain minimum standards for the conduct of such businesses to protect the public safety and welfare of the residents of the city. (Ord. 664 § 1 (Exh. A), 1984)

5.70.030 Definitions.

The following words and phrases shall be defined as follows in connection with the interpretation and construction of this chapter:

“Contract-patrol tow service” means any service whereby vehicles are towed or otherwise removed from one place to another pursuant to a contract with the owner of private property from which vehicles are removed, or his agent, and which service involves the periodic (i.e., at least five times per week) patrolling of the private property in question by the tow truck operator or his agents. “Tow service” includes the storing of vehicles and all other services performed incidental to the towing.

“Illegally parked vehicle” means any motor vehicle parked in violation of the laws of the city, the county, the state, or the private parking regulations set forth in California Vehicle Code Section 22658.

“Nearest public automobile storage facility” means the closest vehicle storage facility which provides to the public the service of storing or holding vehicles and which is located within the city limits.

“Tow truck” means any vehicle or device used to tow or otherwise remove vehicles from one place or another. (Ord. 664 § 1 (Exh. A), 1984)

5.70.040 Permit required.

No person, association, firm or corporation shall engage in, manage, conduct or operate a contract-patrol tow service or operation within the city without a written permit from the chief of police or his authorized representative pursuant to this chapter. An official public safety tow service may tow from private property under conditions established by the municipal code and shall be exempt from this requirement. (Ord. 664 § 1 (Exh. A), 1984)

5.70.050 Application for permit – Fee.

An application for a permit shall be filed with the chief of police or his authorized representative on forms furnished by him, shall be accompanied by a nonrefundable application fee in an amount established by resolution of the city council, and shall contain the following information:

A. The name, date of birth, driver’s license number, business and residence address of the applicant, if a natural person; or if a corporation, its name, date and place of incorporation, address of its principal officers, together with their respective residence addresses; or if a partnership, association or unincorporated company, the names of the partners, or of the persons comprising such association or company, and the business and residence of each partner or person;

B. A description of each tow truck or other vehicle proposed to be used by the applicant, together with engine identification numbers and state vehicle license numbers thereof;

C. The names, dates of birth, addresses and driver’s license numbers of all tow truck operators employed by the applicant;

D. The business, occupation or employment history of the applicant for five years immediately preceding the date of the application, including, if applicable, the business license and permit history while operating as a tow service;

E. All criminal convictions of applicant or proceedings in which a plea of guilty or nolo contendere was entered, including vehicle code violations;

F. Such other identification and information as the chief of police or his authorized representative deems necessary to carry out the purposes of this chapter. (Ord. 664 § 1 (Exh. A), 1984)

5.70.060 Denial of permit.

The chief of police or his authorized representative, within thirty days from the date of application, or longer upon a showing of good cause, shall cause an investigation of the applicant, and the application for a permit may be denied on any of the following grounds:

A. The applicant is a person under the age of eighteen years.

B. The applicant, his agent or employee, or any person connected or associated with the applicant as a partner, officer, director, stockholder, associate or manager has committed or aided or abetted in the commission of any act or acts of omission which if committed by a permittee would be grounds for suspension or revocation of a permit (see SMC 5.70.090).

C. The applicant, his agent or employee, or any person connected or associated with the applicant as a partner, officer, director, stockholder, associate or manager has been refused a permit or had a permit revoked or has been an officer, director, member, partner or manager of any person who has been refused a permit or had a permit revoked.

D. The applicant has been convicted or entered a plea of guilty or nolo contendere to a misdemeanor or felony crime involving moral turpitude, theft, embezzlement or fraud.

E. The applicant does not possess the minimum amount of bodily injury and property damage insurance required by this chapter.

F. The applicant has failed to comply with the requirements of SMC 5.70.130. (Ord. 664 § 1 (Exh. A), 1984)

5.70.070 Notice of denial.

The chief of police or his authorized representative shall notify the applicant of his intention to deny an application for a permit. Service of such notice shall be made personally or by United States mail, first class postage prepaid, addressed to the applicant at the address set forth on the application. The notice shall include the reasons for denial and be accompanied by a statement that the applicant, within ten days from the date of mailing or service of such notice, may appeal such denial to the city manager, and thereafter to the city council, under the procedures outlined in SMC 5.70.100. Upon failure to file an appeal within such ten-day period, the action of the chief of police or his authorized representative in denying the permit shall be final and conclusive. (Ord. 664 § 1 (Exh. A), 1984)

5.70.080 Permit suspension or revocation.

The chief of police or his authorized representative may, in his discretion or upon the verified complaint in writing of any person, investigate the actions of any permittee and determine that in his opinion he has sufficient grounds upon which to temporarily suspend, for a period not exceeding one year, or revoke the permit of any permittee who commits any one or more of the acts or omissions constituting grounds for suspension or revocation as provided in this chapter. Written notice of the chief’s intent to suspend or revoke a permit shall be furnished to the permittee by personal service or by United States mail, first class postage prepaid, addressed to the permittee at the address on the permit, and said permittee, within ten days after the date of service or mailing of such notice of intended suspension or revocation, may request a hearing before the city manager, or his designee, as set forth in SMC 5.70.100. Upon failure to file a request for a hearing within the ten-day period the intended action of the chief shall become effective, final and conclusive. (Ord. 664 § 1 (Exh. A), 1984)

5.70.090 Suspension or revocation – Grounds for.

It shall be grounds for suspension or revocation of a permit if any permittee, his agent or employee or any person connected or associated with the permittee as partner, director, officer, stockholder, general manager, or person who is exercising managerial authority of or on behalf of the permittee has:

A. Knowingly made any false, misleading or fraudulent statement of a material fact in an application for a permit, or in any report or record required to be filed with the public safety department; or

B. Violated any provision of this chapter or of any statute relating to his permitted activity; or

C. Failed to obtain a current, valid license to do business in the city; or

D. Been convicted of a felony or any crime involving moral turpitude, theft, fraud or embezzlement; or

E. Committed any unlawful (not including traffic infractions or equipment violations), false, fraudulent, deceptive or dangerous (i.e., drunk driving or reckless driving) act while conducting a towing operation business; or

F. Published, uttered or disseminated any false, deceptive or misleading statements or advertisements in connection with the operation of the towing service; or

G. Wilfully violated any rule or regulation adopted by the city council relating to permittee’s business; or

H. Wilfully failed to comply with the terms of any contract made as a part of the exercise of the towing operation; or

I. Conducted the towing operation in a manner contrary to the peace, health, safety and general welfare of the public; or

J. Demonstrated that he is unfit to be trusted with the privileges granted by such permit; or

K. Any one driver or permittee has been convicted of or pled guilty or nolo contendere to three or more hazardous moving violations in the conduct of the towing operations during any six-month period, or any tow truck used by permittees has had three or more equipment violations during any four-month period; or

L. Failed or refused to satisfy any judgment awarded to the owner of a towed vehicle against the permittee, where such judgment arose out of the hooking up, removal, towing or storage of such vehicle; or

M. Obtained a tow contract by use of fraud, trick, dishonesty or forgery; or

N. Stopped and solicited on any street, highway or other public thoroughfare the rendering of assistance to a person or disabled vehicle without first being requested to do so, except to render emergency aid when there existed an imminent peril to life or property; or

O. Towed a vehicle to a location other than the business address of such permittee or the nearest public automobile storage facility; or

P. Conspired with any person to defraud any owner of any vehicle, or any insurance company, or any other person financially interested in the cost of the towing or storage of any vehicle, by making false or deceptive statements relating to the towing or storage of any vehicle; or

Q. Removed a vehicle involved in a collision prior to arrival of police, and a person, as a result of such collision, suffered death or injury; or the driver of an involved vehicle, or a party to such collision, was under the influence of an intoxicant of any nature; or there is evidence that such vehicle was involved in a hit-and-run collision; or

R. Charged for services not performed, equipment not employed or used, services or equipment not needed, or has otherwise materially misstated the nature of any service performed or equipment used. (Ord. 664 § 1 (Exh. A), 1984)

5.70.100 Denial, suspension or revocation hearing.

A. Upon receipt of a request for hearing by an applicant or permittee, as provided in this chapter, the city manager, or his designee, shall notify applicant or permittee by personal service or United States mail, first class postage prepaid, of the time and place of such hearing. Said hearing shall be held within fourteen days after receipt of the appeal or request for hearing, and the applicant or permittee shall be notified of said hearing at least five days prior to the hearing date.

B. The hearing shall be conducted to determine the existence of any facts which constitute grounds for the denial, suspension or revocation of a permit. The hearing shall be conducted by the city manager or by a hearing officer appointed by the city manager. The applicant or permittee may have the assistance of counsel or may appear by counsel and shall have the right to present evidence. In the event that the applicant or permittee fails to appear at the hearing, the evidence of the existence of facts which constitute grounds for denial, suspension or revocation of the license or permit shall be considered conclusively established.

C. At the conclusion of such hearing, the city manager, or his designee, may render a decision or, in the alternative, the city manager, or his designee, may elect to render a written decision, which shall be furnished the applicant or permittee by United States mail, first class postage prepaid, not less than two working days following the conclusion of the hearing. Such written decision shall become effective ten days after the date of decision or the date of the mailing of the notice of decision, unless within said ten-day period the decision is appealed in writing to the city council. Upon failure to file such an appeal within the ten-day period, the decision of the city manager, or his designee, shall be final and conclusive.

D. The decision of the city manager, or his designee, may be appealed to the city council in writing within ten days after the date of the decision, or the date of mailing of the notice of decision, stating reasons why the decision for denial, suspension or revocation should not have been made, and upon said appeal, applicant or permittee shall have the burden of proving that the decision rendered by the city manager, or his designee, was unreasonable, erroneous or a clear abuse of discretion. The appeal hearing before the city council shall be held within twenty-one days from the receipt of the written appeal, and applicant or permittee shall be notified by personal service or United States mail, first class postage prepaid, of the hearing at least seven days prior to the hearing date. The effect of the decision by the city manager or hearing officer shall be stayed while an appeal to the city council is pending or until the time for filing such appeal has expired. If an appeal is not timely filed, the decision of the city manager or hearing officer shall be final and conclusive. (Ord. 664 § 1 (Exh. A), 1984)

5.70.110 New application after denial or revocation.

When the permit of any person is revoked for cause, no new or other application for a permit from the same person shall be accepted within one year after such revocation. When an application for a permit is denied for cause, no new or other application for a permit from the same person shall be accepted within one year after denial unless the applicant can show a material change in this situation which would justify the issuance of such permit. (Ord. 664 § 1 (Exh. A, 1984)

5.70.120 Insurance required.

Before an application for a permit to operate a contract-patrol towing operation will be received or acted upon, the applicant must furnish the chief of police or his authorized representative satisfactory evidence of insurance in such minimum amounts as from time to time are established by resolution of the city council issued by an insurance company authorized to do business in this state. (Ord. 664 § 1 (Exh. A), 1984)

5.70.130 Business location.

Any person conducting a contract-patrol towing operation or business shall maintain a physical location within the city limits from which said business is conducted. Such physical location shall provide an office with an adjacent yard for vehicle storage. Such location shall be approved by the chief of police or his authorized representative prior to the permit being issued. (Ord. 664 § 1 (Exh. A), 1984)

5.70.140 Release of vehicle.

Permittees shall provide for release of vehicles from eight a.m. to six p.m. on Monday through Friday, and for four specified hours per day between said hours on Saturdays, Sundays and officially recognized holidays. Permittees shall additionally maintain a twenty-four-hour answering service and shall allow persons whose vehicles have been impounded to telephone and set up mutually convenient arrangements for the release of vehicles on other days and hours. Upon application to the chief of police or his authorized representative, and a showing of hardship by the permittee, an adjustment in the days and hours during which vehicles may be released may be made. (Ord. 664 § 1 (Exh. A), 1984)

5.70.150 Payment.

A permittee hereunder shall, as a condition of receiving and maintaining permit approval from the chief of police or his authorized representative, release vehicles to their owners or operators upon the receipt of: (A) United States currency; (B) personal check; (C) MasterCard or Visa credit cards. With reference to personal checks, the tow business permittee may require that the check be personalized, be written upon a California bank, and that the person presenting the check show a valid driver’s license or valid California identification card. With reference to credit cards, the tow business permittee may require an accompanying valid California driver’s license or valid California identification card. (Ord. 664 § 1 (Exh. A), 1984)

5.70.160 Rates and charges – Signs – Change of.

A. Permittees shall maintain a sign listing the rates and charges of all towing and storage services offered. Such sign shall be conspicuously placed in the office or other place where customer financial transactions take place. The letters on such sign shall be a minimum of one inch high with one-quarter-inch stroke. The letters shall be a contrasting color from the background.

B. Applicants for contract-patrol towing operation permits shall file a schedule of rates and charges for each service offered with the chief of police or his authorized representative. No charge other than the rates and charges specified in such schedule shall be made except as provided in this section.

C. Changes in rates and charges shall be made by written notice containing the new schedule of rates and charges to the chief of police or his authorized representative at least ten days prior to becoming effective. A duplicate copy of such notice shall be posted for a period of ten days in the office of the contract-patrol towing operation business next to the posted schedule of existing rates and charges. (Ord. 664 § 1 (Exh. A), 1984)

5.70.170 Warning signs.

A permittee hereunder shall not tow vehicles from private property unless the private property has displayed signs, in plain view at each vehicular entrance to and exit from the property, and with one additional sign, visible from twenty-five feet, for each thirty adjacent and contiguous parking spaces on the property, each sign stating, in letters a maximum of three inches high, that public parking is prohibited, and further stating, in letters a minimum of two inches high, that unauthorized vehicles are subject to tow-away at the owner’s expense, and setting forth the twenty-four-hour nonemergency telephone number of the police department, the telephone number of the contract-patrol permittee authorized to tow vehicles from the property, and the applicable section (Section 22658) of the California Vehicle Code. Letters on such signs shall be with a minimum one-quarter-inch stroke. (Ord. 664 § 1 (Exh. A), 1984)

5.70.180 Towing authorization – Notification.

A. No permittee hereunder shall attach to a tow truck any vehicle parked in a space assigned to a tenant or lessee of an apartment and/or multifamily residential complex without first having obtained written authorization to impound and tow away the specific vehicle in question. Said written authorization may be obtained from a property owner or manager acting with the written permission of the tenant or lessee given at the time of towing, or directly from the tenant or lessee whose parking space is illegally occupied.

B. In those parking facilities in which parking spaces are not specifically assigned to particular tenants or lessees, no permittee hereunder shall attach a parked vehicle to a tow truck without first having obtained written authorization to impound and tow away the specific vehicle in question from the property owner, lessee, or his manager or employee, who is present at the time of impound. (Ord. 664 § 1 (Exh. A), 1984)

5.70.190 Notice of tows – Waiver of fees.

No permittee shall tow vehicles from private property unless and until the permittee’s contract for service with the owner, manager or other agent for that property provides therein:

A. That the appropriate person, owner, manager or agent shall be provided by permittee not less than weekly with a list of the owners whose vehicles have been impounded and towed from said property, with a copy of each list or report also provided to the police department;

B. That the property owner, manager or agent, as designated in the contract, shall have the right to notify the permittee of special circumstances which in the opinion of said owner, manager or agent require the release by permittee of a certain vehicle without the charge of any impound, towing or storage fee, or the refund of a fee already charged, and permittee shall comply with such request;

C. That the contract contain the specific delegation of authority from the property owner, manager or agent to the permittee, if such is intended, to impound and tow from said private property and to make the prior notification to the police department and to notify the Department of Motor Vehicles as required by California Vehicle Code Section 22658. (Ord. 664 § 1 (Exh. A), 1984)

5.70.200 Vehicles not yet removed.

A permittee hereunder, or his tow truck operator, in the process of impounding a vehicle from legally posted property, where such vehicle has not yet been removed from the property, and upon the request of the vehicle’s lawful owner, or the agent of the lawful owner as evidenced by keys which operate said vehicle and by the statement and driver’s license of such agent, shall release the vehicle at the scene to the owner or his agent upon payment of the fee set forth in this section. If the vehicle is already “in tow” (i.e., completely secured in the raised position and ready to tow in compliance with the Vehicle Code) at the time of the request, then a let-down fee of not to exceed one-half of the regularly scheduled tow or impound fee may be charged for the release of the vehicle. When the vehicle is not yet in tow at the time of the request, then a fee of not more than one-fourth of the regular towing fee may be charged for the release of the vehicle. (Ord. 664 § 1 (Exh. A, 1984)

5.70.210 On-scene dispute of tow.

When the lawful owner of a vehicle or the lawful owner’s agent (as identified in the preceding section) arrives at the scene of the impoundment prior to the vehicle’s being removed from the property and disputes the tow truck operator’s authority to impound and remove said vehicle and specifically notifies or indicates to the tow truck operator that he is summoning a police officer, it then shall be the duty of the tow truck operator to remain at the location of the impoundment for a period of not less than fifteen minutes after he is so notified. If a police officer does not arrive within the fifteen-minute period, the operator may continue with the impoundment and towing of the vehicle. There shall be no additional charges levied for the time required for the arrival of the police officer or any additional time required by the officer to resolve the matter; provided, however, that nothing in this section shall prohibit the charge by a permittee for stand-by time caused by other than the dispute resolution process set forth in this section. (Ord. 664 § 1 (Exh. A), 1984)

5.70.220 Business license required.

Nothing herein shall constitute a waiver of the requirements for the issuance and possession of a business license. (Ord. 664 § 1 (Exh. A), 1984)

5.70.230 Permits nontransferable.

Permits issued under this chapter shall not be transferable except as hereafter provided. (Ord. 664 § 1 (Exh. A), 1984)

5.70.240 Change of ownership.

When a towing operation for which a permit has been issued, pursuant to this chapter, is sold or transferred to one of the transferees listed in this section, the chief of police or his authorized representative may endorse a change of ownership on such permit upon written application by the transferee. Only the following transferees or successors shall be entitled to such transfer of permit:

A. Duly qualified representatives or permittees regularly appointed by courts of competent jurisdiction, assignees for the benefit of creditors, and spouses or children of deceased permittees;

B. The surviving partner or partners of a dissolved partnership;

C. A new partnership consisting of the members of any predecessor partnership, plus their spouse or spouses of any such members;

D. A new corporation organized and controlled by an individual or unincorporated permittee for the purpose of acquiring, and which has acquired, the assets of the business previously owned and operated by such permittee;

E. Upon dissolution of a closely held corporation, the stockholders to whom the assets are distributed. (Ord. 664 § 1 (Exh. A), 1984)

5.70.250 Change of ownership – Application fee.

A transferee or successor entitled to a transfer of permit must file an application for such transfer with the chief of police or his authorized representative within thirty days after he assumes control of the towing operation. The chief of police may require such evidence of the transfer of ownership or control as he deems necessary. A fee equal to twenty percent of the original fee for the permit shall accompany the application. (Ord. 664 § 1 (Exh. A), 1984)

5.70.260 Change of ownership – Action on.

The chief of police or his authorized representative shall transfer the permit to an applicant entitled to such transfer if he finds that the transfer will not adversely affect the peace, health, safety, convenience and general welfare of the public, and the transferee possesses the qualifications required of original applicant. (Ord. 664 § 1 (Exh. A), 1984)

5.70.270 Permit for each location required.

No permittee hereunder shall conduct a towing operation at a location other than the location specified in the permit. (Ord. 664 § 1 (Exh. A), 1984)

5.70.280 Change of location.

Where no conflict exists with the city’s zoning regulations or other provisions by this code, a change of location may be endorsed on a permit by the chief of police or his authorized representative, upon written application by a permittee, accompanied by a change of location fee as established by resolution of the city council. (Ord. 664 § 1 (Exh. A), 1984)

5.70.290 Permits – Term of.

Permits issued pursuant to the provisions of this chapter may be renewed every two years unless sooner revoked, suspended or cancelled. (Ord. 664 § 1 (Exh. A), 1984)

5.70.300 Violation – Penalty.

Any person violating or failing to comply with any of the provisions of this chapter shall be guilty of an infraction. Each day during which a violation of this chapter is committed, continues, or is permitted is a separate offense. Each infraction shall be punishable by a fine not exceeding fifty dollars for the first violation, a fine not exceeding one hundred dollars for the second violation within one year, and a fine not exceeding two hundred fifty dollars for each additional violation within one year. (Ord. 664 § 1 (Exh. A), 1984)