Essential Businesses

Important – Essential Businesses

We hope that you and your families are doing well and remain safe during these unusual times.  It goes without saying that none of us have experienced anything like this in our lifetime.  Regardless of orders in particular counties in Texas, our association is still working on your behalf.

While we believe the services that we render to consumers, law enforcement, and auto mechanics around the state fall within the “essential duties” set out by the U.S. Homeland Security Office, we have been hearing different jurisdictions may be handling it differently depending on the local order. 

Today, Southwest Tow Operators contacted Governor Abbott’s staff to request that tow truck operators and businesses be deemed an essential business.  It is important to the safety of those still on the roadways to not have to worry about vehicles on the side of the road.  Likewise, it does not make sense for these vehicles to be sitting until the order is lifted when auto mechanics and body shops are considered essential. 

Please contact Governor Abbott’s office today to ask him to deem towing companies as an essential business to keeping our roadways safe and clear. 

Governor Abbott’s Phone Number:  512-463-2000.

Thank you,

Southwest Tow Operators

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HOW TO HAVE A SUCCESSFUL (AND VIOLATION-FREE) VSF INSPECTION

HOW TO HAVE A SUCCESSFUL (AND VIOLATION-FREE) VSF INSPECTION

By Brian Edward Walters, Attorney at Law

            VSF inspections are triggered by one of two events. Either it is just time for your periodic inspection (which is required at least once every two years) or an inspection can be the result of a complaint filed against your vehicle storage facility at TDLR. Regardless of the cause of the inspection, there are several rather simple things you can do to properly prepare for a VSF inspection.

            First, be aware of when your “every two years” inspection is coming up. You may not receive notice from TDLR of when you will be inspected, but you can make a fairly good estimate of approximately when it will occur based on your last inspection date. For example, if it has been 18 months since your last inspection, the odds are just about certain that your inspection will occur in the next 6 months.

            Second, look at what TDLR uses when they inspect your facility. A VSF inspection checklist is available on TDLR’s website. As of Aug 1, 2019, it was located at this web address: https://www.tdlr.texas.gov/towing/forms/vsfchecklist.pdf. While many VSFs do not utilize this document, it is effectively you being given the answers to part of an examination that you know you will have to take. Why any person would choose not to study and review the TDLR VSF Inspection checklist is a mystery, but it happens. We strongly recommend that you conduct a personal inspection using the checklist – it will help you not only familiarize yourself with the VSF inspection process, but it will shed light on areas where you may find that you have problems. If those problems are capable of being fixed before the inspection, you will have saved yourself thousands of dollars in administrative fines.

            Third, know where your documents and records are and be absolutely certain that they are complete. If you store your records off-site, you should be certain that those off-site records will be easy to locate and bring to your VSF. If you store records on site, you should ensure that you have met the minimum information and document retention requirements under Texas law (if you have questions on what is required and which documents to keep, please see our record retention and information articles on that subject for VSFs).

            Fourth, remember that an inspector is not a lawyer and may not be the end-all authority on towing and storage laws in Texas. We have heard many complaints from towing companies and vehicle storage facilities alike that sound like this, “The inspector was out here last time and said that my signs were fine!” That may well be the case, but you should always remember that it is a prosecutor (a licensed attorney at TLDR), not the inspector, who makes the final determination on when to prosecute a violation and when a violation will be alleged to have occurred.

            Fifth, be polite and cooperative. Some inspectors are professional and, from time to time, some are less than professional. However, regardless of how the inspector behaves, you should always maintain a cool and professional approach to inspections. This is, after all, an examination of your business that the state has given you a license to perform. That license, like all other licenses, can be forfeited if the state determines you have failed to follow the law or the rules. If a violation is found, that does not mean that you have already lost. It simply means that a non-lawyer representative of the state believes, based on his or her personal opinion and knowledge, that your vehicle storage facility failed to follow the law. It is certainly not a finding of guilt or liability.

            Finally, know the law! Even if you are not a lawyer, operating a vehicle storage facility in Texas requires a good deal of understanding in relation to both the Texas Vehicle Storage Facility Act, the Texas Towing and Booting Act, and the administrative rules that govern vehicle storage facilities and towing companies. To a certain degree, an inspection will be a test of your knowledge of those laws. If you do not know what you need to write down, what documents you need to keep, or what you need to do to charge a fee for a particular service, you will certainly find yourself on the receiving end of a TDLR administrative violation. These laws are available on TDLR’s website and a few other websites on the internet. A Google search for these terms, “Texas Vehicle Storage Facility Act” or “Texas Towing and Booting Act” will likely get you what you need. Read them in full and then read them again. They may be confusing and written in legalese, but as a licensee, you have the responsibility to comply with those laws and rules.

            This article can best be summarized as follows: Be Prepared and Be Professional! VSF inspections are a frequent source of administrative violations on everything from sign lettering to sign content to broken windows on vehicles stored in the yard to fence height in the yard. Inspectors have a great deal of latitude in conducting an inspection and will very likely dig into documents and areas with the intent of finding a violation (even if it is difficult to fine or only a minor violation). Prosecutors are not present during the inspection process and must base their decisions on the information they receive from inspectors. The most successful (i.e. the “no violation”) inspections will be at VSFs that maintain a strict level of diligence when it comes to maintaining their yard (protecting vehicles), keep all required documents, document and saving all required vehicle information, and being prepared ahead of time for inspections. If you can implement office systems that help your employees to maintain compliance year-round, you will dramatically reduce the need for of pre-inspection preparation and find that administrative violations are few and far between.

JUSTIFICATION FOR ADOPTION OF ADMINISTRATIVE RULES VEHICLE STORAGE FACILITIES 16 TAC, Chapter 85, amendments §85.722

JUSTIFICATION FOR ADOPTION OF ADMINISTRATIVE RULES
VEHICLE STORAGE FACILITIES
16 TAC, Chapter 85, amendments §85.722

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 85, §85.722, regarding the Vehicle Storage Facilities Program, without changes to the proposed text as published in the August 16, 2019, issue of the Texas Register (44 TexReg 4281). The adopted changes are referred to herein as “adopted rules.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The adopted rules under 16 TAC, Chapter 85 implement Texas Occupations Code, Chapter 2303, relating to Vehicle Storage Facilities.

The adopted rules implement House Bill (HB) 1140 of the 86^th Legislature (2019 Regular Session), which amends Occupations Code, Chapter 2303, by: (1) allowing the Commission to biennially adjust daily storage fees and impoundment fees at vehicle storage facilities (VSF) based on changes in the Consumer Price Index for All Urban Consumers (CPI-U); and (2) removing the authority of the Commission to set fees that VSF operators may charge for environmental hazards. The adopted rules are necessary to create consistency with the amended statutory language and to implement the biennial adjustment of fees for 2019.

SECTION-BY-SECTION SUMMARY

The adopted rules amend §85.722(d) by: (1) reflecting the amended statutory language setting the daily storage fee amount that VSF operators may charge; (2) adding new Subpart (d)(1) to include the daily storage fee amounts resulting from the 2019 biennial adjustment; and (3) renumbering the remaining subparts accordingly.

The adopted rules amend §85.722(e) by: (1) reflecting the amended statutory language setting the impoundment fee amount that VSF operators may charge; and (2) including the impoundment fee amount resulting from the 2019 biennial adjustment.

The adopted rules repeal §85.722(g) to remove the environmental hazard fee and renumber the remaining subsection accordingly.

PUBLIC COMMENTS

The Texas Department of Licensing and Regulation (Department) drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the August 16, 2019, issue of the Texas Register (44 TexReg 4281). The deadline for public comments was September 16, 2019. The Department received comments from one interested party on the proposed rules during the 30-day public comment period. The public comment is summarized below.

Comment: TDLR received one comment during the public comment period. The comment was authored by an insurance company which expressed its support of the proposed amendments. The comment further expressed concern that the insurance company often receives what it considers to be “inflated charges” relating to gate fees, admin fees, and tow bills.

Department Response: The Department thanks the commenter for submitting its support of the proposed amendments. It also notes that the commenter did not submit any suggested edits or propose any alternative language.

The Department also thanks the commenter for expressing its concerns about what it perceives to be “inflated charges” relating to various aspects of towing and storage fees. However, HB 1140 does not address towing fees and limits itself to storage fees relating to impound and daily storage rates at Vehicle Storage Facilities and to the elimination of an Environmental Fee. The Department, therefore, cannot provide a response to any portion of the comment that does not relate directly to HB 1140 or the fees which are subject to the proposed amendments.

The Department did not make any changes to the proposed rules in response to this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Towing and Storage Advisory Board (Advisory Board) met on September 23, 2019, to discuss the proposed rule and the comment received. The Advisory Board recommended adopting the proposed rule without changes. At its meeting on October 1, 2019, the Commission adopted the proposed rules without changes as recommended by the Advisory Board.

STATUTORY AUTHORITY

The amendments are adopted under Texas Occupations Code, Chapters 51 and Chapter 2303, which authorize the Texas Commission of Licensing and Regulation, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and Chapter 2303. No other statutes, articles, or codes are affected by the proposed rules.

§ 85.722. Responsibilities of Licensee--Storage Fees and Other Charges.

(a) For the purposes of this section, "VSF" includes a garage, parking lot, or other facility that is:

(1) owned by a governmental entity; and

(2) used to store or park at least 10 vehicles each year.

(b) The fees outlined in this section have precedence over any conflicting municipal ordinance or charter provision.

(c) Notification fee.

(1) A VSF may not charge a vehicle owner or authorized representative more than $50 for notification under these rules. If a notification must be published, and the actual cost of publication exceeds 50% of the notification fee, the VSF may recover the additional amount of the cost of publication. The publication fee is in addition to the notification fee.

(2) If a vehicle is removed by the vehicle owner or authorized representative within 24 hours after the date the VSF receives the vehicle, notification is not required by these rules.

(3) If a vehicle is removed by the vehicle owner or authorized representative before notification is sent or within 24 hours from the time VSF receives the vehicle, the VSF may not charge a notification fee to the vehicle owner.

(d) Daily storage fee. A VSF may charge $20 for each day or part of a day for storage of a vehicle that is 25 feet or less in length and may charge $35 for each day or part of a day for storage of a vehicle that exceeds 25 feet in length, subject to a biennial adjustment as set forth in Texas Occupations Code §2303.1552(b)(1).

(1) Per the 2019 biennial adjustment, the maximum amount that a VSF may charge for a daily storage fee is as follows:

(A) Vehicle that is 25 feet or less in length: $20.64.

(B) Vehicle that exceeds 25 feet in length: $36.11.

(2) A daily storage fee may be charged for any part of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the VSF less than 12 hours. In this paragraph a day is considered to begin and end at midnight.

(3) A VSF that has accepted into storage a vehicle registered in this state shall not charge for more than five days of storage fees until a notice, as prescribed in §85.703 of these rules, is mailed or published.

(4) A VSF that has accepted into storage a vehicle not registered in Texas shall not charge for more than five days of storage before the date the request for owner information is sent to the appropriate governmental entity or to the private entity authorized by that governmental entity to obtain title, registration, and lienholder information using a single vehicle identification inquiry.

(5) A VSF shall charge a daily storage fee after notice, as prescribed in §85.703, is mailed or published for each day or portion of a day the vehicle is in storage until the vehicle is removed and all accrued charges are paid.

(e) Impoundment fee. A VSF may charge a vehicle owner or authorized representative an impoundment fee of $20, subject to a biennial adjustment as set forth in Texas Occupations Code §2303.1552(b)(1). Per the 2019 biennial adjustment, the maximum amount that a VSF may charge for an impoundment fee is $20.64. If the VSF charges a fee for impoundment, the written bill for services must specify the exact services performed for that fee and the dates those services were performed.

(f) Governmental or law enforcement fees. A VSF may collect from a vehicle owner or authorized representative any fee that must be paid to a law enforcement agency, the agency's authorized agent, or a governmental entity.

(g) Additional fees. A VSF may not charge additional fees related to the storage of a vehicle other than fees authorized by these rules or a nonconsent-towing fee authorized by Texas Occupations Code, §2308.2065.

REVIEW BY AGENCY COUNSEL

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on October 8, 2019.

Brad Bowman
General Counsel
Texas Department of Licensing and Regulation