24VAC27-30 General Regulations for towing and Recovery Operators

REGULATIONS

Vol. 26 Iss. 16 - April 12, 2010

TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

BOARD OF TOWING AND RECOVERY OPERATORS

Chapter 30

Final Regulation

REGISTRAR'S NOTICE: The Board of Towing and Recovery Operators is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law where no agency discretion is involved. The Board of Towing and Recovery Operators will receive, consider, and respond to petitions from any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 24VAC27-30. General Regulations for Towing and Recovery Operators (amending 24VAC27-30-70, 24VAC27-30-100, 24VAC27-30-110, 24VAC27-30-140 through 24VAC27-30-170).

Statutory Authority: § 46.2-2805 of the Code of Virginia.

Effective Date: May 13, 2010.

Agency Contact: J. Marc Copeland, Executive Director, Board of Towing and Recovery Operators, 2601 W. Broad Street, Suite 200, Richmond, VA 23220, telephone [phone], FAX [phone], or email [e-mail].

Summary:

The General Regulations for Towing and Recovery Operators cover credentialing and operational requirements established by the Board of Towing and Recovery Operators. The amendments are necessary to conform to changes in Virginia law pursuant to Chapter 806 of the 2009 Acts of Assembly. The summary and rationale of the major changes to these regulations are as follows:

1. Allow tow truck drivers to tow a vehicle from an origin in the Commonwealth to a destination in another state without a driver authorization document while requiring those who tow within the Commonwealth (pick up and drop off vehicles in Virginia) to have board-issued credentials. This change ensures the board is regulating towing in Virginia and not interfering with existing practices in other states.

2. Allows the board to reprimand a licensee or revoke or suspend a license if the licensee (i) fails to display at the licensed operator's principal office in a conspicuous place a listing of all towing, recovery, and processing fees or (ii) fails to have readily available, at the customer's request, the maximum fees normally charged by the licensed operator for basic services for towing and initial hookup of vehicles. This change removes the language that limits these requirements to towers of vehicles of 26,000 pounds gross vehicle weight or less so that it applies to all towing and recovery operators.

3. Allows the board to reprimand a licensee or revoke or suspend a license if the licensee willfully invoices for payment any services not stipulated in a contract with a locality whether or not the locality has a local towing advisory board established by law. This change allows this provision to apply to all jurisdictions.

4. Allow those towers who have a gross annual income of less than $10,000 derived from the performance of towing and recovery services to refuse to accept credit cards, but requires them to accept personal checks in lieu of credit cards. This change provides a payment alternative for towing and recovery operators whose work volume might not warrant the use of a credit card machine.

5. Removes any reference to public safety towing regulation by the board, consistent with the law.

6. Removes the requirement that a tow truck driver indicate that he is employed or engaged to be employed by a licensed operator. This change allows for qualified tow truck drivers to more freely obtain a driver authorization document and not have issuance contingent on employment with a towing and recovery operator.

24VAC27-30-70. Exemptions.

The following shall be exempt from these regulations:

1. "Rollbacks" used exclusively to transport cargo other than vehicles.

2. "Automobile or watercraft transporters," "stinger-steered automobiles or watercraft transporters" or "tractor trucks" as defined in § 46.2-100 of the Code of Virginia. Such transporters are only exempt if capable of transporting five or more vehicles and have appropriate and required interstate operating authority.

3. "Household goods carriers" as defined in § 46.2-2100 of the Code of Virginia providing they have been issued a valid "certificate of public convenience and necessity" by the Virginia Department of Motor Vehicles.

4. Tow trucks solely owned and operated directly by a government entity used for public safety towing or noncommercial purposes.

5. Tow trucks that are properly registered and domiciled in another state and have proper interstate operating authority may be operated within the Commonwealth of Virginia while passing through the Commonwealth to another jurisdiction or while delivering a vehicle within or without the Commonwealth, but only if either the pick up of the vehicle and origin of the trip is outside of the Commonwealth, or the drop off of the vehicle is outside of the Commonwealth. However, tow Tow trucks registered and domiciled in another state are not exempt from licensure or provisions of applicable state laws or regulations of the board if both the pick up or hook up and the drop off of a vehicle is in Virginia. Such tow trucks must obtain a temporary trip permit from the board prior to operating in Virginia unless licensed by the board.

6. Tow trucks owned by a person and used exclusively to transport vehicles owned by such person providing there is no charge or acceptance of fees or payment for services. In such situations, ownership of vehicles being transported must be supported by possession of title, bill of sale, registration or other legal document while the vehicle is being transported and signage must be permanently posted on the door of both sides of said tow truck indicating "NOT FOR HIRE." Letters for such signs shall each be at least three inches in height and 1/4" in width and in a color contrasting with the tow truck's color.

7. Tow trucks owned by tow truck dealers or tow truck manufacturers operating with a legally recognized dealer license plate. Such tow trucks may only be operated by an employee of the dealer or manufacturer for the sole purpose of transporting it to and from the location of sale or demonstration. Such tow trucks shall be required to have temporary or permanent lettering with the dealer's or manufacturer's name, city and state and the words "NOT FOR HIRE" displayed on both of the side doors of the tow truck. Letters for such signs shall each be at least three inches in height and 1/4" in width and in a color contrasting with the tow truck's color.

24VAC27-30-100. Unprofessional conduct.

It shall be deemed unprofessional conduct, which may be subject to disciplinary action or sanctions imposed by the board, for any licensed operator in the Commonwealth to violate any statute or regulation governing towing and recovery services, or fail to:

1. Employ only tow truck drivers who comply with the board's requirements for drivers and hold a valid driver's authorization document from the board.

2. Advise the board in writing of any change in ownership listed on the application or management, including a change in the responsible individual, or in the licensee's principal or business mailing address within 30 days of such change occurring.

3. Have the licensee's trade name, clearly indicated on all of the operator's tow trucks. Provided, however, that if the licensee's towing business is exclusively limited to towing only vehicles that are being repossessed, then the name of the licensee and any other markings that might identify the vehicle as associated with the business of repossessing vehicles shall not be required but the board-issued decal for the vehicle must be displayed.

4. Retain for a minimum of one year from last date of service, records of services and fees charged or collected. If said records are not maintained at the operator's principal place of business, the location of such records shall be made known to the board at the board's request.

5. Allow an authorized staff person or agent who is not a member of the board to review or inspect, during regular business hours, the operator's records of services rendered and fees charged or collected, facilities and equipment. Such inspections shall be limited to that which is related to compliance with laws or regulations governing towing and recovery operators and towing and recovery services. All information obtained through any such inspection, to the extent permitted or required by the laws of the Commonwealth of Virginia, shall be considered confidential and shall not be disclosed except as necessary for investigations conducted by the board.

6. Accept at least one of two nationally recognized credit cards. However, any individual credit card offered in payment, even if of a type normally accepted, may be considered unacceptable by the operator if the credit card processing company denies charges being applied to said card or if the actual card is not presented to the operator for inspection. Operators may insist payment by credit card be made at their principal place of business or any location at which payment for fees for services is normally accepted.

7. For operators engaged in towing passenger vehicles without the consent of their owners pursuant to § 46.2-1231 of the Code of Virginia, also known herein as private property/trespass towing, prominently display at their main place of business and at any other location where towed vehicles may be reclaimed, a comprehensive list of all their fees for towing and recovery or the basis of such charges. This requirement to display a list of fees may also be satisfied by providing, when the towed passenger vehicle is reclaimed, a written list of such fees, either as part of a receipt or separately, to the person who reclaims the vehicle. Charges in excess of those posted shall not be collectible from any motor vehicle owner whose vehicle is towed or recovered without his consent. If the owner or representative or agent of the owner of the trespassing passenger vehicle is present and removes the trespassing vehicle from the premises before it is actually towed, the trespassing vehicle shall not be towed, but the owner or representative or agent of the owner of the trespassing vehicle shall be liable for a reasonable fee, not to exceed the fee set out in § 46.2-1231 of the Code of Virginia, or such other limit as the governing body of the county, city, or town may set by ordinance, in lieu of towing.

8. Provide, at the customer's request, a price list indicating the maximum fees normally charged for basic services for towing, recovery and processing fees for vehicles weighing 26,000 pounds or less. If storage fees are not included in the list of charges, the list shall include a statement indicating storage fees are additional and vary according to the size and condition of the vehicle, length of time the vehicle is stored and other costs that may be incurred by the operator when storing the vehicle.

9. Have affixed on the driver's side of all of the operator's tow trucks a tow truck decal issued by the board to all licensed operators.

10. Display his operator's license in a conspicuous place in the principal office in which he operates and display a copy of his operator's license at all other facilities at which payment for fees is accepted.

24VAC27-30-110. Standards of practice.

Violations of any standard of practice set out in this section may be subject to board disciplinary actions or sanctions, including suspension or revocation of an operator's license and imposition of civil penalties.

1. All of an operator's places of business, including their offices and storage facilities, shall comply with any required state or local building or zoning laws or codes.

2. If required by the locality in which the operator designates as his principal place of business, an operator must maintain a valid business license from that locality.

3. Any operator permanently ceasing to provide towing and recovery services shall notify the board in writing and return the board-issued operator's license for voluntary cancellation and termination within 30 days.

4. A licensed operator must maintain the following proof of insurance: (i) a minimum of $750,000 for automobile liability; (ii) a minimum of $750,000 for commercial general liability; (iii) a minimum of $50,000 for garagekeepers liability; and (iv) worker's compensation as required by state and federal entities.

5. Operators shall assure that only equipment designed and rated for the type of vehicle being transported is used. Operators shall additionally assure that at no time shall one of their tow trucks exceed the manufacturer's gross vehicle weight rating: for a Class B operator's tow truck, a minimum of 14,500 pounds on a rollback and a minimum of 10,000 pounds on a wrecker; for a Class A operator's tow truck, a minimum of 29,000 pounds gross vehicle weight rating for a wrecker or the manufacturer's rated capacity for towing apparatus.

6. All tow trucks shall meet all federal Department of Transportation and applicable Virginia regulations. A winch, boom or crane will not be prohibited by this subsection if the tow truck owner submits to the board a certification from a reputable testing laboratory, regularly engaged in the testing of such equipment, indicating that the capacity of the winch, boom, or crane as mounted on the tow truck is not less than the weight for which the application has been made and the certification is carried in the truck at all times. Tow trucks shall be able to retain 50% of its front axle weight during towing operations. Safety chains or straps shall be used in all towing operations with such chains or straps rated to secure the towed vehicle to the tow truck.

7. Any and all advertisements, promotions, and offers for services shall include the operator's trade name and board license number. Invoices shall include the operator's trade name, address, telephone number, and board license number.

8. Operators shall be responsible for the supervision , training and all actions of their employees and drivers pertaining to their compliance with laws and regulations governing towing and recovery services.

9. On or after the effective date of regulations established by the board for public safety towing and recovery services pursuant to § 46.2-2826 of the Code of Virginia, or on or after such later date as may be set out in those regulations, operators shall not provide public safety towing and recovery services unless they have met the criteria established by the board in those regulations and have been placed on the list authorized by § 46.2-2826.

10. 9. Whenever a trespassing vehicle is removed or towed without the owner's consent pursuant to § 46.2-1231 of the Code of Virginia, then in accordance with that section, notice of the removal or towing shall forthwith be given by the driver of the tow truck to the Virginia State Police or the local law-enforcement agency of the jurisdiction from which the vehicle was towed. Should the driver fail to report such action, it shall limit the amount that may be charged for the storage and safekeeping of the towed vehicle to an amount no greater than that charged for one day of storage and safekeeping. If the vehicle is removed and stored, the vehicle owner may be charged and the vehicle may be held for a reasonable fee for the removal and storage.

11. 10. An operator shall comply with all local ordinances and with all contracts, if any, that he has entered into, including any agreements related to private property/trespass towing pursuant to § 46.2-1231 of the Code of Virginia. At the request of both the locality and a towing and recovery operator, the board may assist in conflict resolution between an operator and a locality regarding compliance with local ordinances or contracts.

12. 11. For vehicles towed or removed from private property without the consent of the owner, unless different limits are established by ordinance of the local governing body, an operator shall not charge a hookup and initial towing fee in excess of the amount set out in § 46.2-1233.1 of the Code of Virginia. For towing such a vehicle between 7 p.m. and 8 a.m. or on any Saturday, Sunday, or holiday, an additional fee of no more than the amount set out in § 46.2-1233.1 of the Code of Virginia may be charged per instance; however, in no event shall more than two such fees be charged for towing any such vehicle. No charge shall be made for storage and safekeeping for such vehicle if it is stored for a period of 24 hours or less. Except for such fees as are set out in this subsection, no other fees or charges shall be imposed during the first 24-hour period.

13. 12. As provided in § 46.2-2820 of the Code of Virginia, no operator shall impersonate a licensed operator of a like or different name.

14. 13. As provided in § 46.2-2820 of the Code of Virginia, no operator shall publish or cause to be published in any manner an advertisement that is false, deceptive, misleading or that violates regulations of the board governing advertising by towing and recovery operators.

15. 14. No operator shall provide any towing and recovery services for vehicles of a gross vehicle weight over 26,000 pounds unless licensed as a Class A operator.

16. 15. In addition to the foregoing, the standards of practice for operators require that no operator shall:

(a) Engage in fraud or deceit in the offering or delivering of towing and recovery services.

(b) Conduct his business or offering services in such a manner as to endanger the health and welfare of the public.

(c) Use or allow the use of alcohol or drugs to the extent such use renders the operator or his drivers unsafe to provide towing and recovery services.

(d) Neglect to maintain on record at the licensed operator's principal office a list of all drivers in the employ of the operator. Operators shall be required to notify the board within 30 days of the occurrence of all changes of drivers.

(e) Obtain any fee by fraud or misrepresentation.

(f) Advertise in a way that directly or indirectly deceives, misleads, or defrauds the public.

(g) Advertise or offer services under a name other than one's own name or trade name as set forth on the operator's license.

(h) Fail to accept for payment cash, insurance company check, certified check, money order, at least one of two commonly used, nationally recognized credit cards, or additional methods of payment approved by the board, except that those licensed operators who have an annual gross income of less than $10,000 derived from the performance of towing and recovery services shall not be required to accept credit cards, other than when providing police-requested towing as defined in § 46.2-1217 of the Code of Virginia, but shall be required to accept personal checks.

(i) Fail to display at the licensed operator's principal office in a conspicuous place a listing of all towing, recovery, and processing fees for vehicles of 26,000 pounds gross vehicle weight or less.

(j) Fail to have readily available at the customer's request the maximum fees normally charged by the licensed operator for basic services for towing and initial hookup of vehicles of 26,000 pounds gross vehicle weight or less.

(k) Fail to provide at the consumer's request the phone number for which consumer complaints may be filed with the board.

(l) Knowingly charge excessive fees for towing, storage, or administrative services or charge fees for services not rendered.

(m) Fail to maintain all towing records, which shall include itemized fees, for a period of one year from the date of service.

(n) Willfully invoice for payment any services not stipulated or otherwise incorporated in a contract for services rendered between the licensed operator and any locality or political subdivision of the Commonwealththat has established a local Towing Advisory Board pursuant to § 46.2-1233.2 of the Code of Virginia.

(o) Employ any driver required to register as a sex offender as provided in § 9.1-901 of the Code of Virginia.

(p) Remove or tow a trespassing vehicle, as provided in § 46.2-1231 of the Code of Virginia, or a vehicle towed or removed at any request of a law-enforcement officer to any location outside the Commonwealth.

(q) Refuse at the operator's place of business to make change up to $100 for the owner of the vehicle towed without the owner's consent if the owner pays in cash for charges for towing and storage of the vehicle.

(r) Violate, assist, induce, or cooperate with others in violating any provisions of law related to the offering or delivery of towing and recovery services, including the provisions of Chapter 28 (§ 46.2-2800 et seq.) of Title 46.2 of the Code of Virginia and the provisions of these regulations.

(s) Fail to provide the owner of a stolen vehicle written notice of his right under the law to be reimbursed for towing and storage of his vehicle out of the state treasury from the appropriation for criminal charges as required in § 46.2-1209 of the Code of Virginia.

(t) Fail to satisfy the procedural steps, including the timely mailing of all notices, required by §§ 43-32 and 43-34 of the Code of Virginia, in order to perfect and enforce the liens provided therein for towing and recovery and vehicle storage.

24VAC27-30-140. Prerequisites for application for tow truck driver's authorization document.

A. The board shall accept applications for tow truck driver's authorization documents at its office in Richmond or via its website. To be included with the application shall be the board application fee plus the prevailing fee required by state and federal police authorities for reviewing the fingerprints submitted by the applicant and processing the criminal history background checks required by the statutes and these regulations.

B. After the application and fees are received, the applicant shall be issued the board originating number to provide to the entity taking the fingerprints at the time the fingerprints and criminal history background check data are taken before being forwarded to Virginia State Police to be processed. In lieu of inked fingerprints, the board will accept electronically processed fingerprints, such as those available from LiveScan or other electronic systems for processing by state and federal officials.

C. When the results of the criminal history background check are received by the board, they shall be evaluated and the application may either continue to be processed, or, if the results are such that the applicant appears to be ineligible to obtain a driver authorization document under the statutes or these regulations, the applicant shall receive a denial notice from the board.

D. A denied applicant may appeal such denial by requesting review by the board in accordance with informal proceeding provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) within 30 days of the denial notice.

E. Results of the criminal history background check shall be sent directly to the board office and maintained confidentially unless its contents are used to reject or place conditions upon a driver's authorization document. An applicant shall not be refused a tow truck driver's authorization document by the board solely because of a prior criminal conviction against such applicant unless the criminal conviction directly relates to the provision of towing and recovery services or the safety of the users of such services offered by a licensee or holder of a tow truck driver's authorization document. However, the board shall refuse to issue a tow truck driver's authorization document if, based upon all the information available, including the record of prior convictions of the applicant, it finds that the applicant is unfit or unsuited to engage in providing towing and recovery services as a tow truck driver.

1. The board shall consider the following criteria in determining whether a criminal conviction directly relates to the provision of towing and recovery services or the safety of the users of towing and recovery services by a tow truck driver:

a. The nature and seriousness of the crime;

b. The relationship of the crime to the purpose for requiring a license or tow truck driver's authorization document to provide towing and recovery services, which includes protecting the safety of users of such services;

c. The extent to which providing towing and recovery services might offer an opportunity to engage in further criminal activity of the same type as that in which the convicted person had been involved;

d. The relationship of the crime to the ability, capacity or fitness required to perform the duties and discharge the responsibilities of providing towing and recovery services;

e. The extent and nature of the person's past criminal activity;

f. The age of the person at the time of the commission of the crime;

g. The amount of time that has elapsed since the person's last involvement in the commission of the crime;

h. The conduct and work activity of the person prior to and following the criminal activity; and

i. Evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release or at any time following the conviction.

2. The following criminal convictions shall not be considered a bar to authorization by the board, meaning that the inclusion of these items on a criminal history record shall not be sufficient as the sole grounds for denial of a tow truck driver's authorization document:

a. Felony convictions more than 10 years old with no subsequent reportable convictions, unless the conviction resulted in incarceration where the release date is less than three years from the date of the application. This does not include convictions involving murder, manslaughter, sexual assault, rape, robbery, or indecent liberties.

b. Misdemeanor convictions more than three years old from the date of application.

c. Convictions of grand larceny, breaking and entering, or burglary or all of these convictions, more than five years old with no subsequent convictions, provided such convictions did not result in incarceration where the release date is less than three years from the application date.

d. Driving-under-the-influence (DUI) convictions where the applicant has completed Virginia Alcohol Safety Action Program (VASAP) or another similar program accepted by the court after the latest conviction. However, no tow truck driver's authorization document shall be issued, and none shall continue to be valid, during any time period for which (i) the person's driver's license is suspended or revoked or (ii) the person has been authorized only a restricted license during a period of suspension or revocation resulting from a conviction or convictions for DUI or any DUI-related offense, except that if the driver demonstrates that he is not required to possess a commercial driver's license in order to drive a tow truck, then an authorization document can be issued for the period during which he has a restricted license if it authorizes the driver to drive only tow trucks for which a commercial drivers license is not required.

3. The applicant must possess a valid driver's license at the time of the application. The driver shall be required to possess a commercial driver's license if applicable to the class of operator the driver is to be employed by or the type of tow truck to be driven.

4. Applicants shall be required to sign a statement verifying they are not currently on any state or federal list as a sex offender and are not required to register as a sex offender under any state, federal or local law, or the law of any foreign country.

5. A tow truck driver's authorization documents shall be valid for one year and shall be subject to annual renewal by December 31 June 30 of each year. After the initial authorization, the applicant is required to submit criminal history background checks with fingerprints every three years thereafter as a part of the renewal. Driver authorization documents issued on or after October April 1 of any year, with the payment of a full year's fee, shall be valid until December 31 June 30 of the following year.

24VAC27-30-150. Exemptions from tow truck driver authorizations.

A tow truck driver's authorization document shall be required for operation of a tow truck in Virginia only if such operation is for hire and involves a pick up of the towed vehicle in Virginia. Driving a tow truck into or through Virginia while towing a vehicle picked up outside of Virginia shall not require a driver's authorization document. Driving a tow truck out of or through Virginia while towing a vehicle picked up in Virginia also shall not require a driver's authorization document, so long as there is no drop off of the vehicle in Virginia.

24VAC27-30-160. Requirements for drivers.

A tow truck driver shall:

1. Possess a valid and appropriate driver's license and tow truck driver's authorization document while operating a tow truck for hire in Virginia when the pick up of the towed vehicle takes place in Virginia, unless exempted under 24VAC27-30-150.

2. Provide evidence at time of application for a tow truck driver's authorization document that he is employed or about to be employed by a licensed operator and the name and address of that operator.

3. 2. Maintain in his possession and have readily available for inspection when providing towing and recovery services his board-issued tow truck driver's authorization document. The driver's authorization document shall include the name of the driver and the driver's license number and the name of the state in which he holds a valid driver's license.

4. 3. Notify the board within five business days upon the driver being convicted of any criminal offense, including any offense for which the driver is required to register as a sex offender under any state, federal or local law, or the law of any foreign country.

5. 4. Provide towing and recovery services in a safe manner.

6. 5. Review and read all regulations and laws related to standards of practice, unprofessional conduct and safety prior to operating a tow truck or providing towing and recovery services. The driver shall sign a statement to be retained by the operator who employs the driver verifying the driver's compliance with this subsection.

7. 6. Surrender his tow truck driver's authorization document should the board rescind, cancel, suspend, revoke or deny such tow truck driver's authorization document upon a determination by the board that the driver has violated laws or regulations governing towing and recovery services or otherwise has become unqualified to hold a tow truck authorization document.

24VAC27-30-170. Renewal of licensure; reinstatement; renewal of fees.

A. All those licensed by the board as a towing and recovery operator shall, on or before December 31 June 30 of every year, submit a completed renewal application and pay the prescribed annual licensure fee.

B. It shall be the duty and responsibility of each licensee to assure that the board has the licensee's current mailing address. All changes of mailing addresses or change of name shall be furnished to the board within 30 days after the change occurs. All notices to an operator or driver from the board are to be deemed validly tendered when mailed to the address given by the licensee to the board, and the licensee shall not be relieved of the obligation to comply with any notice so mailed if there has been a failure to notify the board of changes.

C. The license of every operator who does not submit the completed form and fee or forms and fees, as applicable, by December 31 June 30 of each year may be allowed to apply for renewal for up to two months after that date by paying the prescribed renewal fee and late fee. However, if the renewal has not been received by the board within two months after the December 31 June 30 due date, then on and after March September 1 of that year the operator's license is expired and cannot be renewed. Engaging in towing and recovery services with an expired license constitutes operating without a license and may subject the licensee to disciplinary action and civil penalties imposed by the board.

D. An operator whose license has expired and who wishes to resume providing services as a towing and recovery operator shall apply for a new operator's license.

VA.R. Doc. No. R10-2067; Filed March 24, 2010, 8:34 a.m.