WSR 99-21-071

PROPOSED RULES

DEPARTMENT OF LICENSING


(Vehicle Services)

[ Filed October 20, 1999, 8:03 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-16-051.

Title of Rule: Chapter 308-61 WAC, Unauthorized and abandoned vehicles.

Purpose: Review of current rules to ensure necessity, effectiveness, efficiency, clarity, intent, coordination with other jurisdictions and agencies, cost benefits and fairness in accordance with Governor Gary Locke's Executive Order 97-02; also to implement ESB 5649.

Statutory Authority for Adoption: RCW 46.55.190.

Statute Being Implemented: Chapter 46.55 RCW.

Summary: Review of current rules governing registered tow truck operators; implementation of ESB 5649.

Reasons Supporting Proposal: Governor's Executive Order 97-02 for WAC review; implementation of ESB 5649.

Name of Agency Personnel Responsible for Drafting: Cal Sanders, Highways-Licenses Building, P.O. Box 9039, Olympia, (360) 902-3708; Implementation and Enforcement: Robert Smith, Highways-Licenses Building, P.O. Box 9039, Olympia, (360) 902-3704.

Name of Proponent:

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: To review current rules to ensure necessity, effectiveness, efficiency, clarity, intent, coordination with other jurisdictions and agencies, cost benefits and fairness in accordance with Governor Gary Locke's Executive Order 97-02; to implement ESB 5649.

Proposal Changes the Following Existing Rules: Several sections are changed in light of the review for necessity, effectiveness, clarity, intent, coordination with other agencies, cost benefits and fairness; and the amendment of rules necessary to implement ESB 5649.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposal was drafted in cooperation with the industry and other stakeholders. This rule amendment proposal is made in accordance with new duties imposed on the industry by ESB 5649. The rule does not impose duties beyond the statute.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Department of Licensing, Conference Room 303, 3rd Floor, Highways-Licenses Building, 1125 S.E. Washington Street, Olympia, WA, on November 23, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Linda Mason by November 19, 1999, TDD (360) 664-8885, or (360) 902-3710.

Submit Written Comments to: Gail Saul, Dealer Services, Department of Licensing, P.O. Box 9039, Olympia, WA 98507-9039, fax (360) 586-6703, by November 22, 1999.

Date of Intended Adoption: December 10, 1999.

October 19, 1999

Fred Stephens

Director

OTS-3465.1


AMENDATORY SECTION(Amending WSR 93-08-076, filed 4/6/93, effective 5/7/93)

WAC 308-61-026
Definitions--Registered tow truck operator.

(1) "Affidavit of sale" - that document prescribed by the department and given to the successful bidder by the operator.  The affidavit shall state that the sale was conducted properly pursuant to chapter 46.55 RCW and must be notarized.  The affidavit may be submitted to the department with an application for certificate of title or may be used as a title document by a licensed auto wrecker, hulk hauler or scrap processor.

(2) "Secure area" - a place of safety for vehicle storage and in an area completely enclosed by a fence of sufficient height and construction to prevent access by the general public, with a gate which can be locked.  The fence shall be at least six feet high with at least two strands of barbed wire along the top, for a total combined height of eight feet or more, provided, however, that the fencing requirement may be waived by the department where, due to the topography or zoning a fence would be impracticable and the storage area is secure without a fence.  When a licensee has operator registrations under more than one name and owns or leases a common secure area, the areas for each operator registration must be segregated by ((a physical barrier at least as strong as one strand of chain, cable or)) an eight-foot fence which will not require barbed wire.  When two or more operators with different ownership share a secured area, those respective areas must be segregated by an eight-foot fence as described above.

Wherever practicable secure storage areas will be located on improved property which is ((leveled)) graded and illuminated at night for the safe keeping of stored vehicles.

(3) "Abandoned vehicle report" - is that document, prescribed by the department, by which the operator is to report to the department his/her possession of an abandoned vehicle.

(4) "Notice of custody and sale" - is that document sent by the operator to the registered owner, legal owner (lien holder) giving notice of the amount of the operator's lien for services, place and time of public auction if the vehicle is not redeemed, and of the operator's right to seek a deficiency against the last registered owner.

(5) "Registered tow truck operator's business location" - is a location at which records and files necessary to conduct the business are kept, and where the operator can normally be contacted by the public.

[Statutory Authority: RCW 46.55.190, 46.79.080 and 46.80.140.  93-08-076, 308-61-026, filed 4/6/93, effective 5/7/93; 88-06-025 (Order DLR 164), 308-61-026, filed 2/25/88.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-026, filed 1/6/86.]


AMENDATORY SECTION(Amending Order DLR-088, filed 1/6/86)

WAC 308-61-105
Application.

What information must be included in an application for registration of a tow truck operator? The application for registration of a tow truck operator shall include:

(1) A statement as to whether the applicant has previously been registered as such, and if so, the previous registration number and business name.

(2) A current listing of the towing and storage rates of the operator on a form ((provided)) prescribed by the department.

(3) A certification from the zoning authority of jurisdiction that the licensee is in compliance with any land use ordinances.

[Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-105, filed 1/6/86.]


AMENDATORY SECTION(Amending WSR 90-01-060, filed 12/18/89, effective 1/18/90)

WAC 308-61-108
((General)) Miscellaneous licensing provisions.

(1) Staggered licensing - the annual registration issued to tow truck operators shall expire on the date indicated by the director.

(2) Additional secure areas for vehicle storage - additional storage locations may be operated under one registration.  No additional bond or insurance will be required for such premises so long as each is covered by the bond and insurance.

(3) If an operator has more than one registered business location, storage areas for each business location must be listed with the department under its registration.

(4) Change of name and/or address - the department shall be notified immediately, on a form provided by the department, of any change of name and/or address of any business location or of the addition of any location.

(5) Changes of ownership - any change of partners or of corporate officers shall be immediately reported to the department in writing.  A complete change in ownership requires a new registration except in the case of a corporation or a limited liability company.

(6) An insurer shall notify the department at least 10 days prior to cancellation of a policy.  Following receipt of such notification the department shall notify the registered tow truck operator by ordinary mail of the effective date of the insurance cancellation and that cancellation of the required insurance cancels the operator's registration pursuant to RCW 46.55.030 (3)(b).  This notice to the operator shall not affect the cancellation of the registration.

(7) For purposes of RCW 46.55.220, it shall not be necessary to hold a hearing to refuse a registration unless such a hearing is requested.

[Statutory Authority: RCW 46.55.190.  90-01-060, 308-61-108, filed 12/18/89, effective 1/18/90.  Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080.  88-06-025 (Order DLR 164), 308-61-108, filed 2/25/88.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-108, filed 1/6/86.]


AMENDATORY SECTION(Amending Order DLR-088, filed 1/6/86)

WAC 308-61-115
Identification of licensee's vehicles.

How must a registered tow truck operator identify its vehicles?

(1) All tow vehicles to be used in the operator's business which are operated on the public highways, shall display the licensee's operator number plus the truck number, name, city of address and current business telephone number.  Such information shall be painted or permanently affixed to both sides of the vehicle.  Each letter and numeral shall be made with at least a half-inch stroke for the width and shall be at least three inches high.  See sample:

Place illustration here.

(2) The annual tow truck permit will be a paper cab card identifying the tow truck as well as indicating the class of truck and the registered tow truck operator.

[Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-115, filed 1/6/86.]


AMENDATORY SECTION(Amending Order DLR-088, filed 1/6/86)

WAC 308-61-125
Business hours.

What business hours must a registered tow truck operator maintain?

(1) Business hours, for purposes of inspection of business records, place of business or towing equipment, shall be 8:00 a.m. to 5:00 p.m. except for weekends and holidays.  Normal business hours shall be posted at the operator's place of business.

(2) Whenever an operator is not open for business and does not have personnel present at the licensed location, the operator shall post a phone number at that location for purposes of public contact for release of vehicles and/or personal property.  An operator shall maintain personnel who can be contacted 24 hours a day to release impounded vehicles within a 60 minute period of time.

(3) Personal property shall be released without charge between the hours of 8:00 a.m. and 5:00 p.m., excepting weekends and holidays.

[Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-125, filed 1/6/86.]


AMENDATORY SECTION(Amending WSR 93-08-076, filed 4/6/93, effective 5/7/93)

WAC 308-61-135
((General)) Miscellaneous provisions.

(1) The properly executed written authority to tow or other evidence of lawful possession shall suffice in lieu of current license plates or trip permits for unauthorized or abandoned vehicles.

(2) Billing invoices shall indicate the time of day when an unauthorized or abandoned vehicle arrived at the secure storage area.

(3) A seller's report of sale properly filed with the department on a form ((furnished)) prescribed by the department shall relieve a registered owner from liability for costs incurred in the removal and storage of an unauthorized/abandoned vehicle, in addition to relieving that person from other liability pursuant to RCW 46.12.101.

(4) The junk vehicle affidavit of sale as described in RCW 46.55.230 may be used to sell a vehicle to a licensed hulk hauler, scrap processor, vehicle wrecking yard or it may be used as a supporting document for issuance of a title.

(5) A stored vehicle may be redeemed any time before the start of auctioning of that particular vehicle.

(6) The written notice of the right of redemption and opportunity for a hearing to contest the validity of an impoundment, to be sent with the twenty-four hour impoundment notice on an unauthorized vehicle impoundment, shall be separate and in addition to the notice of opportunity for a hearing given to those who redeem vehicles.

(7) Information contained in the master log shall include:

(a) The dates of impound and release of vehicles;

(b) Storage lot used if multiple lots;

(c) If impound was from public or from private property and the location where the vehicle was impounded;

(d) Identity of vehicle by year, make, model, license number, and vehicle identification number;

(e) Dates of all required notices to law enforcement and to vehicle owners;

(f) Date of auction advertisement and of auction;

(g) Amount of towing and storage lien;

(h) Amount of auction proceeds;

(i) Amount of ((excess)) surplus funds ((and date the disposition notice was sent to the Washington state patrol)).

Entries on the master log must be made within seventy-two hours following the activity being logged.

[Statutory Authority: RCW 46.55.190, 46.79.080 and 46.80.140.  93-08-076, 308-61-135, filed 4/6/93, effective 5/7/93.  Statutory Authority: RCW 46.55.190.  90-01-060, 308-61-135, filed 12/18/89, effective 1/18/90.  Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080.  88-06-025 (Order DLR 164), 308-61-135, filed 2/25/88.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-135, filed 1/6/86.]


AMENDATORY SECTION(Amending Order DLR-088, filed 1/6/86)

WAC 308-61-145
Specifications and posting of signs.

How is the posting of signs on private and public property handled?

(1) Signs shall measure at least 15" by 24" and the lettering thereon shall be clearly visible to all who park.

(2) Signs for publicly owned or controlled parking facilities need to disclose that unauthorized vehicles will be impounded and must also disclose a phone number for redeeming a vehicle.  If a registered tow truck operator is used, the signs shall meet the same requirements as in the posting of private nonresidential property.

[Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-145, filed 1/6/86.]


AMENDATORY SECTION(Amending Order DLR 164, filed 2/25/88)

WAC 308-61-158
Storage of vehicles.

How shall the registered tow truck operator handle stored vehicles?

(1) Handling and returning vehicles in substantially the same condition means that vehicles are to be handled with care so that their value is not diminished. The operator shall not remove parts or equipment which are affixed to the vehicle.

(2) A vehicle being held for storage by agreement or being held under police authority, other than a suspended license impound, or pursuant to a writ or court order shall not be considered abandoned, nor shall it be processed as such.  Any storage fees accrued while under agreement((,)) or under police ((hold)) authority, other than a suspended license impound, or pursuant to a writ or court order, shall not be included in the abandoned vehicle lien.  Upon the expiration of a storage agreement, the lifting of a police hold other than a suspended license impound, or when the writ or court order is no longer in effect, the operator shall begin the unauthorized abandoned vehicle processing, including the notification to vehicle owners by first class mail within twenty-four hours.

(3) When vehicles are stored pursuant to a writ or court order, the operator shall keep evidence of the inception and termination dates of the writ or court order in the vehicle transaction file.

(4) When a vehicle is being held pursuant to a suspended license impound, and the vehicle is not redeemed even after the payment of a security deposit, and upon expiration of the hold, the operator shall send the notice provided in RCW 46.55.110(2) and schedule its auction accordingly.

(5) Vehicles in the custody of an operator shall be kept entirely within a secure area owned or operated under that registration.

(((5))) (6) An operator shall not charge for relocating vehicles between separate secure storage areas which he/she owns or operates.

[Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080.  88-06-025 (Order DLR 164), 308-61-158, filed 2/25/88.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-158, filed 1/6/86.]


AMENDATORY SECTION(Amending WSR 93-08-076, filed 4/6/93, effective 5/7/93)

WAC 308-61-168
Disputed impound.

What should the registered tow truck operator do when a court hearing has been requested?

(1) Where a timely request has been made for a district or municipal court hearing and where the vehicle owner has failed to redeem the vehicle, the abandoned vehicle procedural requirements may be followed, but the sale of the vehicle at public auction shall not take place until after the court has disposed of the request.

(2) ((For purposes of RCW 46.55.220, it shall not be necessary to hold a hearing to refuse a license unless such a hearing is requested.

(3))) The administrative hearings officer, provided in RCW 46.55.240 (1)(d), shall mean a hearings officer authorized by ordinance or resolution of a city, town or county for the purpose of conducting hearings on disputed vehicle impound cases.

(((4))) (3) Operators shall maintain a trust account solely for the deposit of funds received pending the disposition of any district court hearing requests.

[Statutory Authority: RCW 46.55.190, 46.79.080 and 46.80.140.  93-08-076, 308-61-168, filed 4/6/93, effective 5/7/93.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-168, filed 1/6/86.]


AMENDATORY SECTION(Amending WSR 91-20-121, filed 9/30/91, effective 10/31/91)

WAC 308-61-175
Procedures for selling vehicles.

How should a registered tow truck operator properly identify a vehicle in its custody and prepare for a vehicle auction?

(1) For purposes of advertising the sale of abandoned vehicles the vehicle identification number shall be used if no license plates are on the vehicle.

(2) A newspaper of general circulation in the county shall mean a newspaper which is one of three with the largest circulation in the county where the sale will be conducted. The publisher need not reside in that same county.

(3) If a vehicle in the custody of an operator is not identifiable, including no license plates or registration, the operator shall conduct an examination of the vehicle only to determine its make, model, year and vehicle identification number which shall be included on the abandoned vehicle report to the department.

(4) If the department cannot provide owner information on a vehicle after the operator submits an abandoned vehicle report, the operator may then inspect the vehicle as permitted in RCW 46.55.100(5) to determine whether owner information is within the vehicle.

(5) Upon inspection of the vehicle as provided in subsection (4) of this section the operator may return the original abandoned vehicle report with additional information from the inspection of the vehicle to assist the department in providing owner information.

(6) The department may require an inspection by the Washington state patrol to verify the vehicle identification number of an unidentified vehicle.  All such information shall be reported to the department, which will communicate with such other states as may be necessary to determine whether the registered and legal owner information is available for the vehicle.

(7) After all reasonable efforts to obtain the owner information have proved unsuccessful, the vehicle may be disposed of in accordance with all procedures except that the notification to the registered and legal owners by certified or registered mail may be omitted.  A record of all steps taken to locate the owner(s) of the vehicle shall be kept by the operator for a period of three years.

(8) If the operator elects to bid at auction, that bid must be disclosed as such, and shall not merely be an effort to set a minimum for other bids.  If an operator is the successful bidder and the bid exceeds the lien for towing and storage, the ((excess)) surplus funds shall be remitted to the department just as in any other sale.  The operator cannot elect to retain a vehicle at auction because the operator feels that the bidding is insufficient.

(9) The three-hour public viewing period required in RCW 46.55.130(1) shall be held at all times during daylight hours.

(10) Auctions may be held on Saturdays or Sundays which are not legal holidays.

[Statutory Authority: RCW 46.55.190.  91-20-121, 308-61-175, filed 9/30/91, effective 10/31/91.  Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080.  88-06-025 (Order DLR 164), 308-61-175, filed 2/25/88.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-175, filed 1/6/86.]


AMENDATORY SECTION(Amending WSR 91-20-121, filed 9/30/91, effective 10/31/91)

WAC 308-61-185
Lien provisions.

What charges are proper for the registered tow truck operator to include in the towing and storage lien?

(1) No operator shall include any charges in the amount of the lien that are not specifically authorized.  Subordinate charges such as mechanic fees or prior storage fees claimed by the operator or any third party shall not be allowed.  All fees must be included in the towing and storage rates and no fees for other services shall be allowed.  No fee may be listed on the rate sheet for which there is no provision.

(2) The towing and storage lien shall not apply to personal property not attached to and made an integral part of the vehicle.

(3) No operator shall increase the daily storage rate charged for an unauthorized or abandoned vehicle in his/her custody between the time the vehicle is impounded and then redeemed or auctioned.

[Statutory Authority: RCW 46.55.190.  91-20-121, 308-61-185, filed 9/30/91, effective 10/31/91; 90-01-060, 308-61-185, filed 12/18/89, effective 1/18/90.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-185, filed 1/6/86.]


AMENDATORY SECTION(Amending WSR 90-01-060, filed 12/18/89, effective 1/18/90)

WAC 308-61-190
After sale.

What documentation follows the abandoned vehicle auction and who may claim surplus auction funds?

(1) Following the auction of an abandoned vehicle the operator shall give to the successful bidder an affidavit of sale, as defined, which shall disclose the amount of the lien and the amount of the successful bid.  The public auction shall terminate the ownership interest of prior owners, both registered owners and legal owners.

(2) The following guidelines shall apply in establishing a valid claim for surplus funds which have been remitted to the state as the result of the auctioning of abandoned vehicles pursuant to ((section 13(g))) RCW 46.55.130 (2)(h):

(a) The claiming individual shall show reasonable proof of his/her identity and the claim shall be in writing and shall be notarized.

(b) The claimant must have been the registered owner of the vehicle as reflected in the records of the department of licensing at the time the vehicle was auctioned.  The person indicated as purchaser on a seller's report of sale, pursuant to RCW 46.12.101, will be considered the registered owner of record for purposes of this section.

(c) Any person whose claim is denied by the state shall have the opportunity to request a departmental hearing as provided in chapter 34.05 RCW.

(3) The fifteen-day title transfer requirement provided for in RCW 46.55.130 (2)(f) shall not apply to properly licensed hulk haulers, scrap processors, and wreckers who have acquired the vehicle for salvage purposes in accordance with chapters 46.79 and 46.80 RCW.

[Statutory Authority: RCW 46.55.190.  90-01-060, 308-61-190, filed 12/18/89, effective 1/18/90.  Statutory Authority: Chapter 46.55 RCW.  86-03-011 (Order DLR-088), 308-61-190, filed 1/6/86.]

Washington State Code Reviser's Office