Vehicle Storage Facilities Proposed Rules

Chapter 85.  Vehicle Storage Facilities
Proposal Filed:  January 18, 2013– Published in the Texas Register:  February 1, 2013
Deadline for Public Comment:  March 4, 2013

Underlined text is new language.
[Strike-thru text] is deleted language.

The Texas Department of Licensing and Regulation (“Department”) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 85, §§85.200, 85.709, 85.710, 85.725, and 85.1003, regarding the towing, storage, and booting program.

The proposed amendments are necessary to implement changes recommended by the Towing, Storage, and Booting Advisory Board, and as general rule cleanup so that these rules are internally consistent and in harmony with 16 TAC, Chapter 86, rules regarding the towing of vehicles.  The proposed rule amendments were originally proposed in the September 14, 2012 issue of the Texas Register (37 TexReg 7250); however, the proposed rule amendments were withdrawn on January 18, 2013.

The proposed amendments to §85.200 clarify the requirement that only a single licensed facility may register and operate from a single address.  This links the registered address of the licensed facility to the taxing records of the county wherein the facility is located.

The proposed amendments to §85.709 implement one of the purposes for requiring a fenced and secure area around a licensed facility.  The amendments clarify the classes or groups of persons authorized to enter the secured area.

The proposed amendment to §85.710(a)(3) requires that a vehicle storage facility (VSF) must accept payment at the location of the stored vehicle and may not require a person to travel to a separate location to make payment and another location to retrieve the stored vehicle. The provision in §85.710(a)(5) has been deleted and moved to §85.710(a)(3)(I).

The proposed amendment to §85.710(c) addresses long-standing issues related to persons attempting to gain access to or possession of stored vehicles using fraudulent documentation. This amendment is an express prohibition against such fraudulent activity through exercise of the Department’s and the Texas Commission of Licensing and Regulation’s (Commission) jurisdiction to impose administrative penalties for such violations.

The proposed amendment to §85.725(a)(6)(C)(iii) harmonizes the drug testing requirement that the percentage of random testing be based on the number of employees participating in the consortium rather than the VSF.  This harmonizes the drug testing requirements for VSFs with those used by towing companies.

The proposed amendments to §85.1003 provide flexibility for a VSF to continue with the existing practices related to the placement of signage or implement the new provisions which provide for and allow affixing the notices to the payment window.  This flexibility will reduce or eliminate the need to print new signs with each statute or rule change that may affect consumer notices.  A new subsection §85.1003(g) is proposed to retain the statutory requirement that notice of nonconsent fee schedules be provided.

William H. Kuntz, Jr., Executive Director, has determined that for the first five-year period the proposed amendments are in effect there will be no direct cost to state or local government as a result of enforcing or administering the proposed rules.

Mr. Kuntz has determined that for each year of the first five-year period the proposed amendments are in effect, the public benefit from clarity in what is required by the law of a vehicle storage facility.  The proposed rules also maintain consumer protections for individuals whose vehicles are the subject of a nonconsent tow. The public also benefit from the enhanced integrity of vehicle storage facilities.

There will be no adverse economic effect on small or micro-businesses or to persons who are required to comply with the rules as proposed.

Since the agency has determined that the proposed amendments will have no adverse economic effect on small businesses preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

Comments on the proposal may be submitted by mail to Shanna Dawson, Legal Assistant, General Counsel’s Office, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or by facsimile to 512/475-3032, or electronically to erule@tdlr.texas.gov.  The deadline for comments is 30 days after publication in the Texas Register.  All comments previously submitted in response to the September 14, 2012, proposed rule filing, which was withdrawn will be considered in addition to comments received in response to this filing.

The amendments are proposed under Texas Occupations Code, Chapters 51 and 2308, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51.  No other statutes, articles, or codes are affected by the proposal.

§85.200.  License Required--Vehicle Storage Facility.

(a) A person may not operate a VSF unless the person holds a VSF license issued by the department. For purposes of this section, each VSF physical location or lot is a separate facility and must obtain a VSF license.

(b) Only one licensed facility may be located at the physical address as recorded in the records of the local taxing appraisal district for the county in which the facility is located.

§85.709.  Responsibilities of Licensee--Unpermitted Tow Trucks Prohibited and Unlicensed Personnel Restrictions.

(a) Unless authorized by another law or regulation, a VSF shall not allow a tow truck that is not permitted under Texas Occupations Code, Chapter 2308, to enter the storage area of the facility.

(b) Except as provided for in paragraphs (1) – (7), a VSF shall not allow any person to access the fenced vehicle storage area unless the person is:

(1) licensed under this Chapter of Chapter 86 of this title;

(2) the owner of the stored vehicle;

(3) a person authorized by the owner of the stored vehicle to have access to or possession of the vehicle;

(4) law enforcement;

(5) named in a court order;

(6) a person participating in the auctioning of a vehicle under Transportation Code, Chapter 683; or

(7) any other person authorized by this chapter or Texas Occupations Code, Chapters 2303 and 2308.

§85.710. [Responsibilities of Licensee - ] Release of Vehicles.

(a) Release of vehicles. The VSF must comply with the following requirements when releasing vehicles.

(1)-(2) (No Change.)

(3) The VSF shall allow the vehicle owner or authorized representative to obtain possession of the vehicle, including payment at the location of the stored vehicle, at any time between the hours listed on the facility information sign posted as described in §85.1003, upon payment of all fees due, presentation of valid identification (Texas drivers license or other state or federally issued photo identification), and upon presentation of:

(A)-(F) (No Change.)

(G) appropriate identification of any state or federal law enforcement agency representative; [or]

(H) the most recent version of a department-approved form or electronic version of a department-approved form published on the department's website, www.license.state.tx.us; which the VSF must make available to the vehicle owner or person seeking possession of or access to the vehicle; or [.]

(I) evidence of financial responsibility (insurance card), as required by Transportation Code §601.051, as an additional form of identification that establishes ownership or right of possession or control of the vehicle.

(4) A VSF may not refuse to release a vehicle to the owner or operator of the vehicle or require a sworn affidavit of the owner or operator of the vehicle solely because the owner or operator presents valid photo identification issued by this state, another state, or a federal agency that includes a different address than the address contained in the title and registration records of the vehicle.

[(5) A VSF must accept evidence of financial responsibility (insurance card), as required by §601.051, Transportation Code, as an additional form of identification that establishes ownership or right of possession or control of the vehicle.]

(5) [(6)] Paragraph (3) does not require a VSF to release a vehicle to the owner or operator of the vehicle if the owner or operator of the vehicle does not:

(A) pay the charges for services regulated under this chapter or Chapter 86 of this title, including charges for and associated with delivery or storage of the vehicle; and

(B) present valid photo identification issued by this state, another state, a federal agency or a foreign government.

(6) [(7)] If it accepts vehicles 24 hours a day, all VSFs shall have vehicles available for release 24 hours a day within one hour's notice.

(7) [(8)] If a VSF does not accept vehicles 24 hours a day, such facility must have vehicles available for release within one hour between the hours of 8:00 a.m. and midnight Monday-Saturday and from 8:00 a.m. to 5:00 p.m. on Sundays except for nationally recognized holidays. It is not the intent of this section to require release of vehicles after midnight, and refusal to release after that time, even with notice after 11:00 p.m., is not a violation of this section.

(8) [(9)] For purposes of determining when the one hour for release of a vehicle starts, the VSF must clearly note on the receipt the time of the call requesting vehicle release and have the person requesting release separately initial the notation.

(b) A VSF may not require an owner, operator or agent of an owner or operator of a vehicle to sign an authorization or release form to release the vehicle from the VSF if that form:

(1) changes the status of the law enforcement initiated tow from a nonconsent status to a consent tow status;

(2) changes the status of the storage resulting from a nonconsent tow from a nonconsent storage status to a consent storage status; or

(3) imposes any additional charges not regulated by the department.

(c) A person may not execute, submit or use a department-approved form or other document which contains a false, fictitious, dishonest, or fraudulent statement of a material fact used for the purpose of obtaining possession of or access to a motor stored by facility licensed under Texas Occupations Code, Chapter 2303.
(1) For purposes of this section, a false, fictitious, dishonest, or fraudulent statement related to authorization from the vehicle owner to the person or entity named in the form or document is a material fact.
(2) Conduct found by the commission or the executive director by final order to have violated this section shall be deemed fraudulent and dishonest conduct.

§85.725.  Responsibilities of Licensee--Drug Testing Policy.

(a) A VSF adopting paragraphs (1) - (12) will comply with Texas Occupations Code, §2303.160.

(1)-(5) (No Change.)

(6) Types of Tests.

(A)-(B) (No Change).

(C) Random Testing. In addition to annual testing, VSF employees are subject to random urine drug testing. Under this policy, annual random test for drugs of at least 25 percent of the total number of VSF employees is required.

(i) A minimum of 15 minutes and a maximum of two hours will be allowed between notification of a VSF employee for random urine drug testing and the actual presentation for specimen collection.

(ii) Random donor selection dates will be unannounced with unpredictable frequency.

(iii) Each licensed VSF participating in a consortium must ensure that the consortium performs random drug testing on at least 25% of the total number of the licensed VSF employees participating in and tested by the consortium [employed by or under contract with the VSF].

(D) (No Change.)

(7)-(12) (No Change.)

(b)-(c) (No Change.)

§85.1003.  Technical Requirements--Storage Lot Signs.

(a) (No Change.)

(b) All VSFs shall have a sign in view of the person who claims the vehicle setting out the charge for storage and all other fees, which may be charged by the storage lot, including notification and impoundment fees. The sign may be affixed to the payment window and shall include all forms of payments the VSF accepts for any charge associated with delivery or storage of a vehicle. If the sign is affixed to the payment window, it [The sign] must be located so it is clearly visible to a vehicle owner at the place of payment. [and shall have letters at least 1 inch in height with a contrasting background.]

(c) Nonconsent towing fees schedule. All VSFs shall conspicuously place a sign, at the place of payment, which states in 1-inch letters that:

(1) “Nonconsent tow fees schedules available on request.” The VSF shall provide a copy of a nonconsent towing fees schedule on request; and

(2) The nonconsent towing fees provided for viewing and to the vehicle owner or representative must match the nonconsent towing fees authorized by this chapter or Texas Occupations Code §2308.2065.

(d) Instruments accepted for release of vehicle. VSFs shall have a sign describing the documents that may be presented by the vehicle owner or his/her authorized representative to obtain possession of the vehicle.  This sign shall list all instruments as described in §85.710(a)(3)(A) – (I) [(G)], and shall also state: "Affidavit of Right of Possession Furnished Upon Request." The sign may be affixed to the payment window. [This sign shall be located so it is clearly visible to a vehicle owner at the place of payment, and have letters at least 1 inch in height with a contrasting background.]

(e)-(f) (No Change.)

(g) A vehicle storage facility accepting a nonconsent towed vehicle shall post a sign in one inch letters stating "Nonconsent tow fees schedules available on request." The vehicle storage facility shall provide a copy of a nonconsent towing fees schedule on request.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on January 18, 2013.

William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation

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