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2011-011 ORD WRECKER, TOWING AND STORAGE FACILITIESORDINANCE NO. 2011-011 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, ADDING A NEW CHAPTER 35, WRECKER, TOWING, AND STORAGE FACILITIES TO THE CODE OF ORDINANCES OF THE CITY OF PARIS, REGULATING PROCEDURES AND POLICIES PERTAINING TO THE OPERATION OF WRECKER, TOWING, AND STORAGE FACILITIES IN THE CITY OF PARIS, TEXAS; MAKING THIS ORDINANCE CUMULATIVE OF STATE AND FEDERAL LAWS; MAKING OTHER FINDIIVGS AND PROVISIONS RELATED TO THE SUBJECT; PROVIDIIVG A REPEALER CLAUSE, A SEVERABILITY CLAUSE, A SAVINGS CLAUSE, A PENALTY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the proper and safe functioning of vehicle towing companies operating in the City of Paris has a critical impact on the public safety and welfare since it involves the use of the public streets of the city, often in circumstances necessitating prompt removal of dangerous obstruction to traffic; and, WHEREAS, the privilege of any person to engage in vehicle towing service in the city limits of the City of Paris, Texas, shall be subject to regulation in order to protect the health, safety and welfare of the public; and, WHEREAS, the City Council of the City of Paris, Texas hereby finds and determines that establishing policy and regulations for the proper and safe functioning of wrecker, towing and storage facilities operating in the City of Paris is in the best interest of the City of Paris and its citizens; and 1VOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS THAT: Section 1. The findings set out in the preamble to this ordinance are hereby in all things approved. Section 2. A new Chapter 35, Wrecker, Towing, and Storage Facilities of the City of Paris Code of Ordinances be, and is hereby added to read in its entirety as follows: "Chapter 35 WRECKER, TOWING AND STORAGE FACILITIES ARTICLE I. IN GENERAL Sec.35-1. Purpose. The proper and safe functioning of the towing companies has a critical impact on the safety and welfare of the public since it involves the use of the public streets of the city, often in circumstances necessitating prompt removal of -1- dangerous obstruction to traffic. Therefore, the privilege of any person to engage in a towing company in the city shall be subject to regulation in order to protect the health, safety and welfare of the public. Sec. 35-2. Compliance with State Law. All certificate holders under this article shall comply with all applicable state laws and ordinances, inclusive of policies, procedures, rules, and regulations. Sec. 35-3. Authority and Duties of the Department. The police department shall implement and enforce this article. Furthermore, in addition to the powers and duties elsewhere prescribed in this article, the department is authorized to: (1) Keep records of all certificates of registration issued, suspended or revoked. (2) Require additional information to clarify items on an application. (3) Adopt rules and regulations, consistent with the provisions of this Chapter, with respect to the form and content of applications for certificates of registration, the investigation of applicants, the disposal of vehicles, and other matters incidental or appropriate to the powers and duties as may be necessary for the proper administration and enforcement of this Chapter, to include rules or required methods of accounting and reporting either by form or electronic systems as determined by the department. (4) Conduct random periodic investigations of vehicle tow services throughout the city concerning their compliance with this Chapter. Inspect vehicles for compliance with uniform vehicle and equipment safety standards, as established by the department. Sec.35-4. Definitions. Abandoned motor vehicle means any motor vehicle on a public roadway or private property that has remained without the consent of the owner or person in control of the property for more than 48 hours or as defined by state. Agent of the Police Department includes Certificate holder. Certificate holder means any person possessing current, valid certificate of registration to engage in the towing business in the city. Certificate of registration means a written authorization granted by the chief of police, under the provisions of this Chapter, to a towing company having -2- a place of business within the city, operating a tow truck that performs non- consent tows or incident management tows. Collision means a situation where one or more motor vehicles have collided with another motor vehicle, object, or person. Collision shall also include incidents in which only one vehicle is involved, such as a rollover, or a vehicle that has left the roadway. Calendar day means a continuous series of days; including holidays and weekends. Chapter means Wrecker, Tow Truck and Storage facility code, of The Code of the City of Paris. City means the City of Paris, Texas. Compliance officer means the person designated by the Chief of Police to oversee and enforce this Chapter. Consent tow means any tow conducted with the permission of, or at the direction of, the towed vehicle's legal or registered owner, or such owner's authorized representative, or vehicle operator. Consent Towing (CT) Permit means a CT permit issued by the Texas Department of Licensing and Regulation which is required for a tow truck used for a consent tow: o Tow truck equipped to tow light-duty or heavy-duty vehicles according to the manufacturer's towing guidelines o Maintain at least $300,000 of liability insurance for the tow truck o A tow truck with a CT permit may not be used for non-consent towing including incident management and private property towing Department means the Paris Police Department, Chief of Police or other officer representing the Paris Police Department. Driver means an individual who drives or operates a wrecker. Hearing officer means the Municipal Judge or designee appointed by the City Manager. Heavy duty wrecker means an auto wrecker with a manufacturer's carrying capacity certificate of not less than 26,000 pounds, and capable of supplying air for brakes and electrical power for lights to the towed vehicle. Incident Management Tow means any tow of a vehicle in which the tow truck is summoned because of a traffic accident or incident. -3- Incident Management (IM) Towing Permit means an IM permit issued by the Texas Department of Licensing and Regulation is required for any nonconsent tow initiated by a peace officer: o Tow truck equipped to tow light-duty or heavy-duty vehicles according to the manufacturer's towing guidelines o Maintain at least $500,000 of liability insurance for the tow truck o Maintain at least $50,000 of cargo insurance for the tow truck o A tow truck with an IM permit may also be used for private property towing and consent towing Incident number means a number assigned by the police department to an incident. In the water means any vehicle in which all four wheels are covered by more than four (4) inches of water. "In the water" shall not mean street flooding or water on public streets or City rights-of-ways. Impoundment means an action taken by or at the direction of the owner or operator of a vehicle storage facility that is necessary to preserve, protect or service a vehicle stored or parked at the facility Lawful Order means a verbal or written directive issued by the Police Chief or any police officer of the Paris Police Department in the performance of official duties in the enforcement of this article and any rules and regulations promulgated under this article. Next out means The Wrecker Service whose permit number is the next number on a rotation list and which the Department knows by schedule. Rotation is at 6 AM. Non-consent tow means the towing of a vehicle without the written or verbal authorization of the operator, owner or lien holder. Operate means to drive or to be in control of a tow truck. Operator means the driver of a tow truck, the owner of a tow truck, holder of a vehicle tow service certificate of registration. On call means the towing service that is on call for the next 24 hours. Parking facility means public or private property used, in whole or in part for restricted or paid vehicle parking. Person means an individual, assumed name entity, partnership, joint- venture, association, corporation, or other legal entity. -4- Private Property (PP) Towing Permit means a PP permit issued by Texas Department of Licensing and Regulation which is required for a tow truck used to perform a nonconsent tow authorized by a parking facility owner: o Tow truck equipped to tow light-duty or heavy-duty vehicles according to the manufacturer's towing guidelines o Maintain at least $300,000 of liability insurance for the tow truck o Maintain at least $50,000 of cargo insurance for the tow truck o A tow truck with an PP permit may also be used for consent towing but not for incident management towing Property entrance means any point of access by a vehicle to private property. Property owner means a person, or the person's agent or lessee, who holds legal title, deed, or right-of- occupancy to private property, but does not include a vehicle tow service certificate holder or an employee or representative of a vehicle tow service certificate holder. Rotation means a call system used by the City for the removal of vehicles from the public night-of-ways or public streets. Rotation list means the list of registered towing companies maintained by the Paris Police Department for "on call" duty. Rotation tag number means the call rotation number the City assigns to a Wrecker Service. Texas Department of Licensing (TDLR) means the state agency responsible for regulating the towing and storage industry. Tow truck means a wrecker or any truck or other vehicle equipped with cables, winches, hoists, and wheel dollies or other devices capable of lifting and towing or otherwise transporting another vehicle from one place to another with a gross vehicle weight rating (GVWR) that shall not be less than 10,000 pounds as rated by the manufacturer or certifying laboratory (one ton truck) and shall be equipped with dual rear wheels and tires. "Tow truck" includes a roll back type vehicle. Unauthorized vehicle means a vehicle, which is parked on private property without the consent of the property owner. Vehicle means: (1) a motor vehicle subject to registration under the Texas Certificate of Title Act; and, -5- (2) any other device designed to be self propelled or transported on a public street. Vehicle owner operator means a person, or the designated agent of a person, who: (1) holds legal title to a vehicle, including any lien holder of record; or, (2) has legal right of possession or legal control of a vehicle. Vehicle storage facility means a state licensed garage, parking lot, or any type of facility owned by a person other than a governmental entity for storing or parking vehicles as defined by state law. Working day means days of the week dedicated for work; excluding weekends and nationally recognized holidays. Wrecker means a tow truck or a vehicle designed for the towing of other vehicles. Wrecker Service means the business of towing, moving or removing vehicles through the use of a vehicle for compensation, regardless of whether the purpose of the removal is to transport wrecked or disabled vehicles, repair, wreck, store, trade, purchase, repossess vehicles or to remove illegally or unauthorized parked vehicles. Any person who operates more than one Wrecker Service shall comply with all applicable rules and regulations for the additional Wrecker Service. Sec.35-5. Exemptions. This Chapter does not apply to a person who engages in towing a vehicle: (1) In connection with a bona fide repossession of same, when written authorization has been received from the mortgagee; or (2) Which is abandoned, and the property owner where the vehicle is located gives written certification of the abandonment and requests the removal of a specifically identified vehicle. ARTICLE II. TOW COMPANY REGISTRATION Sec. 35-6. Certificate of Registration Required - Application. (a) It shall be unlawful for a person to operate a tow truck to perform non- consent or incident management towing in the City unless the person has a Certificate of Registration issued by the Police Chief or the Department. -6- (b) To obtain a certificate of registration, a person must make written application to the Department upon a form provided for that purpose. Be permitted by the Texas Department of Licensing and Regulation (TDLR) with an Incident Management Permit. Be a permitted Vehicle Storage Facility by the Texas Department of Licensing and Regulation inside the City Limits of Paris, Lamar County, Texas. The person who will own, control, or operate the proposed vehicle tow service must sign the application. The application must be completed in its entirety and include the following: (1) the name, address, and telephone number of the applicant, the trade name under which the applicant does business, the street address and telephone number of the vehicle tow service establishment. Applicants must posses their own state licensed VSF (Vehicle Storage Facility) located in the City limits of Paris, Texas; (2) the number and types of vehicles to be operated, including the year, make, model, vehicle identification number, and state license plate number and the type of winch to be operated on each wrecker rated at 10,000 pounds. For a heavy duty permit, the tow truck must meet definition of heavy duty; (3) proof of an insurance policy or policies which will be in full force and effect for the duration of the permit and will meet the policy requirements outlined by the State of Texas in the Vehicle Storage Facility Act, this ordinance and applicable state law, and which covers the City of Paris, it's elected officials, officers and employees as additional insured; (4) a statement attesting that each wrecker used by the vehicle tow service has been rendered for ad valorem taxation in the city and that the applicant is current on payment of those taxes; (5) a list, to be current at all times, of the owners and management personnel of the vehicle tow service, and of all employees who will participate in the vehicle tow service, including names, addresses, dates of birth, state driver's license numbers, social security numbers, and TDLR wrecker driver's permit numbers; (6) a list of what methods of payment, including a credit card, debit card or check acceptance policy, the applicant will accept from a vehicle owner for vehicle tow service. Other forms of payment may be utilized provided the Chief of Police or his designee approves them; (7) any other information deemed necessary by the Department consistent with and for the proper administration and enforcement of the provisions of this article; -7- (8) cargo insurance, including property damage in the amount of $50,000 to cover any damages or improper loss of vehicle to the vehicle owner, and maintain $500,000 of commercial liability insurance which names the City of Paris, it's elected officials, officers and employees as additional insured under the liability policy; (9) an indemnification and Hold Harmless agreement provided by the City; and (10) an application processing / inspection fee of $50.00. (b) A person desiring to engage in vehicle tow service shall register with the Department a trade name that clearly differentiates the person's Wrecker Service from all other companies engaging in vehicle tow service and shall use no other trade name for the vehicle tow service. (c) The Department may conduct such other investigations, as the Department considers necessary to determine whether an applicant for a certificate of registration is qualified. Sec. 35- 7. Certificate of Registration Qualifications. (a) To qualify for a vehicle tow service certificate of registration, an applicant must: (1) Be permitted by the Texas Department of Licensing and Regulation (TDLR) with a current Incident Management Permit; (2) be a permitted Vehicle Storage Facility by the Texas Department of Licensing and Regulation inside the City Limits of Paris, Lamar County, Texas; (3) be at least 21 years of age; (4) be currently authorized to work in the United States; and (5) be able to communicate in the English language. (b) It is the responsibility of the applicant, to the extent possible, to secure and provide to the Department the evidence required to determine present fitness under Subsection (a) of this Section. (c) A certificate holder shall use his/her Wrecker Service employees only to provide vehicle tow service; except, that vehicle tow services licensed under this article may not be subcontracted with each other to provide tow service- (d) A certificate holder shall maintain a permanent and established place of business at a location within the city limits. A certificate holder shall use their -s- own vehicle storage facility located within the city that is licensed by the city and/or state. Sec. 35-8. Indemnification. The Wrecker Service shall fully indemnify, hold harmless and defend the City of Paris, its officers, agents and employees from and against any and all claims, suits or causes of action of any nature whatsoever, brought for or on account of any injuries or damages to persons or property, including death or loss of property, arising out of or incident to the operation of this towing service and all other manner of operations arising under, or otherwise incident to, the towing or storage of motor vehicles. Sec. 35-9. Certificate of Registration Issuance; Fee; Display; Transferability; Expiration. (a) The Department shall, within a reasonable time after the date of application, issue a certificate of registration to an applicant who complies with the provisions of this chapter. (b) A certificate issued to a vehicle tow service authorizes the certificate holder and any bona fide employee to engage in vehicle tow service and be placed on rotation. The annual fee for a certificate of registration is $50.00. The fee for issuing a duplicate certificate for one lost, destroyed, or mutilated is $5.00. The fee is payable to the Department upon issuance of the certificate. No refund of a registration fee will be made. A certificate of registration issued pursuant to this article must be conspicuously displayed in the vehicle tow service establishment. (c) The certificate of registration is not assignable or transferable. (d) The certificate of registration expires December 31st of each year and may be renewed by applying in accordance with the ordinance. Application for renewal must be made not less than 30 days or more than 60 days before expiration of the certificate and must be accompanied by the annual registration fee. (e) The tow truck shall display the name of the Wrecker Service under which the Wrecker Service is doing business on each side of the tow truck doors with at a minimum three (3) inch letters. The information shall be clearly and legibly painted or affixed by permanent decal in colors that contrast with the surface on which the information is painted or affixed. (o The tow truck shall display in front of the windshield and behind the front tires on both front fenders the name of the Wrecker Service's City Rotation Tag Number, unless the tow truck is a cab over truck, in which case the Wrecker Service's City Rotation Tag IVumber shall be displayed on both front doors. The Rotation Tag Number shall be either permanently affixed or painted in numbers not less than 3" inches. Such numbers shall be clearly and legibly painted or -9- affixed by permanent decal in colors that contrast with the surface on which the information is painted or affixed. (g) Only O1VE rotation number will be issued to a Wrecker Service. Sec. 35-10. Refusal to Issue or Renew Certificate of Registration. The Department may refuse to grant or renew a certificate of registration if the applicant or certificate holder: (1) makes a false statement as to a material matter in an application for a certificate or certificate renewal or in a hearing concerning the certificate within a 12 month period; (2) has been convicted, in a court of competent Jurisdiction, for a violation of this chapter or has been suspended for violation of this chapter, and the total number of convictions or suspensions, or any combination of convictions or suspensions, during the 12 month period equals two (2) or greater; (3) has been convicted, in a court of competent Jurisdiction, for violation of this chapter or has been suspended for violation of this chapter, and the total number of convictions or suspensions, or any combination of convictions or suspensions, during the 24 month period equals three (3) or greater; (4) has had a vehicle tow services license revoked within two (2) years prior to the date of application; (5) uses a trade name for the vehicle tow service other than the one registered with the Department; (6) is not qualified under this chapter; or (7) has been convicted or received deferred adjudication for violation of another city, state, or federal law that indicates a lack of fitness of the applicant to operate a vehicle tow service. If the Department determines that a certificate of registration should be denied to the applicant or certificate holder, the Department shall notify the applicant or certificate holder in writing that the application is denied and include in the notice the reason for denial and a statement informing, the applicant or certificate holder of the right of appeal. Sec. 35-11. Revocation of Certificate of Registration. The Department may revoke a certificate of registration for a tow service company if the Department determines that the certificate holder has: -10- (1) made a false statement as to a material matter in the application or hearing concerning the certificate of registration; (2) failed to comply with applicable provisions of this chapter; (3) operated a towing service in the city limits that does not have a certificate of registration and/or is not licensed or permitted by the State; (4) failed to comply with the conditions and limitations of the certificate; (5) been convicted or received deferred adjudication for violation of another city, state, or federal law, that indicates a lack of fitness of the certificate holder to perform vehicle tow service; (6) is under indictment for or has been convicted of any felony offense while holding a certificate of registration; (7) does not qualify for a certificate under this chapter; or (8) failed to pay a certificate of registration fee at the time it was due. Sec. 35- 12. Appeals. (a) Any person whose application for a certificate of registration or renewal certificate is denied by the Department, or suspended by the Department, may file an appeal to the City Manager of the City of Paris or his authorized designee. (b) Any person whose certificate of registration has been revoked by the Department may appeal to the City Manager of the City of Paris or his authorized designee. (c) Upon a person receiving notice of the Department's decision, the person has ten (10) calendar days from the date of receipt thereof during which to appeal such decision to the City Manager. The appeal shall be in writing and directed to City Manager, City of Paris, P.O. Box 9037, Paris, Texas 75461-9037. If no appeal is made to the City Manager within ten (10) calendar days following receipt of the Department's decision, the Department's decision shall become final. (d) Upon receipt of a timely filed appeal, the City Manager, or his authorized designee for such appeals is hereby authorized to affirm, modify, or reverse the Department's decisions. (e) Upon revocation, suspension, or denial of a certificate of registration by the Department, the person shall immediately cease operation of the tow service for which the certificate of registration was issued, except that a person who -11- appeals the suspension or revocation of a certificate of registration and is in compliance with bonding, and insurance requirements under this chapter may continue to operate the tow service until the final decision on the appeal. (o Upon the scheduling of the City Manager's review of the Department's decision, the person shall be given an opportunity to appear before the City Manager or his authorized designee, and present to him any evidence, including witnesses, which may be of assistance in arriving at a decision on the matter. (g) Upon notification of the City Manager's decision, the Department shall promptly and without delay act in accordance therewith and pursuant to the directions thereof. (h) If any such certificate expires at no fault of the person before a ruling on the revocation or suspension of such certificate, the person may continue to operate the tow service pending a final decision on the matter. The person, however, shall immediately cease operation of such service upon revocation or suspension of any such certificate by the City Manager or his authorized designee. A suspension of any such certificate shall not affect the expiration date. Sec. 35-13. Vehicle Safety and Equipment Standards. (a) Each tow vehicle used by a certificate holder or vehicle tow service will require an annual inspection by an ASE certified mechanic. (b) Upon inspection, if tow service vehicle does not meet inspection standards as established or as established by applicable State law the vehicle will be removed from service. If the vehicle has mechanical or structural damage, the vehicle will be inspected by an ASE certified mechanic and be repaired prior to returning to service. (c) Any towing company, certificate holder, or applicant, by virtue of making an application with the City, agrees to allow during normal business hours, the inspection of tow trucks, tow equipment, and storage facilities for compliance under this article. This authority shall be cumulative of any other authority held by the chief of police, other law enforcement officials, or other legally authorized public officials. ARTICLE III. ADMINISTRATIVE Sec. 35-14. Police Department Responsibilities. (a) The Department will maintain the call list: (1) Rotation: The Rotation List shall indicate all valid City wrecker tag numbers. Each will be allowed one 24-hour period on call from 6 AM to 6 AM. Vehicles declared as junk vehicles will be towed by the on-call tow company between 8:00 a.m. and 5:00 p.m., Monday -12- through Friday, excepting City holidays. Once a Wrecker Service accepts a junk call they may not pass after arriving on the scene. (2) On-call Rotation List: The Rotation List will list all properly registered towing companies by name, address and phone numbers. (b) Collision Scene and Police Pick-Up Scene. The following actions will take place at the scene of any motor vehicle collision or situation that requires a tow truck to remove vehicles from the public streets or City right-of-way: (1) If the police officer makes a determination that one or more vehicles need to be towed, the police officer shall ask the vehicle operator if the vehicle operator has a preference for a particular Wrecker Service. The police officer shall notify the communications dispatcher to request that particular Wrecker Service. The Wrecker Service shall respond within thirty (30) minutes. If the Wrecker Service fails to arrive on scene within thirty (30) minutes, the dispatcher shall call the "next-out" on the Department Rotation List. If the Wrecker Service requested by the owner is not registered with the City, the owner or the owner's insurance company or automobile club shall be responsible for contacting the Wrecker Service. No police officer shall suggest or recommend a particular towing Wrecker Service. No police officer shall attempt to influence a vehicle operator's selection of a Wrecker Service. (2) If the vehicle operator has no preference, is physically incapacitated, refuses to designate for a specific towing Wrecker Service, or an emergency situation exists, the police officer shall notify the communications dispatcher to send the Wrecker Service who is on call for the time period. Once the police officer has notified the communications officer to send the on call service, the Wrecker Service shall have 30 minutes in which to arrive at the scene from the time the Wrecker Service is called unless the call is for a heavy-duty truck, in which case the Wrecker Service shall have 45 minutes in which to arrive at the scene. If the Wrecker Service fails to arrive at the scene within the required time, the Department shall cancel the call, and call the next Wrecker Service on the rotation list. The City reserves the right to cancel the on call service as warranted by the situation on the scene. If a rotation list wrecker accepts the dispatch to the call, the Wrecker Service may not pass once arriving at the scene. (3) Upon the arrival of the Wrecker Service, the police officer shall complete the vehicle inventory form in the presence of the tow truck driver as required for a non-consent tow. The vehicle operator and tow truck driver shall properly sign the form before the vehicle is towed from the scene. -13- (4) Upon the proper completion of the vehicle inventory form, the tow truck driver shall deliver the vehicle to the companies' storage lot unless the tow is a consent tow and requested to deliver the vehicle to another location. All non-consent tows shall be towed to the Wrecker Service's storage lot located within the City limits or if directed by the Department to be delivered to another location. (5) IVo tow truck operator or agent shall be within 1,000 feet of the scene unless properly dispatched by the Department. No employee or agent of the Wrecker Service shall distribute business cards or other literature to, or communicate with any vehicle operator within 1,000 feet of the scene unless properly dispatched and in the presence of a police officer. No Wrecker Service shall follow, chase or respond to Fire, EMS, or Police calls unless requested. (6) In multi-vehicle towing situations, the tow service on call is responsible for all vehicles needing removal, unless other arrangements have been made that comply with state statutes. If the on-call towing service cannot remove all vehicles in a timely manner, the next tow service on rotation shall be dispatched for whatever the on-call service cannot remove. (7) All tow truck drivers driving or summoned to the scene shall obey all lawful orders given them by any police officer and shall not in any manner interfere with any police officer in the performance of the officer's duty. The police officer on the scene shall not advise or instruct a tow truck driver on the manner of towing. (8) No tow truck driver shall remove any wrecked or disabled or illegally parked vehicle from any public street or City right-of-way without authorization from a police officer, or any City authorized employee; however, the owner or operator of a stalled or disabled vehicle not involved in an accident may authorize a tow truck driver to remove the vehicle if no police officer is present. (9) Each tow truck driver who is dispatched shall be responsible for cleaning the street of any broken glass or other debris resulting from a collision. If more than one tow truck is summoned, each driver shall bear equal responsibility for the clean up. (10) All recovered stolen vehicles will be transported at the direction of the Paris Police Department. All Wrecker Service fees will be paid by the owner of a stolen vehicle stored at the Paris Police Department before release of the stolen vehicle. (11) No additional fees such as "stand by time" will be added to any non-consent rotation tow or next out tow. -14- (12) Wrecker Service Companies and their drivers, agents, or representatives shall not address complaints, conflicts or disagreements in an antagonistic manner at the scene of the accident or tow. Any complaints will be directed to the Chief of Police or his designee away from the accident scene. (13) Each on call towing service will provide local tow service free of charge to any emergency services city vehicle needing removal from collision scenes or mechanical breakdown to a location designated by the city employee while on call. ARTICLE IV. FEE SCHEDULE Sec. 35-15. Tow Fees. Tow fees are allowed as posted on the TDLR website by local wrecker service companies for non-consent or incident management tows. ARTICLE V. TOWING FEE STUDY AND UNCLAIMED VEHICLES. Sec. 35-16. Towing Fee Study. A"towing fee study" is a study to determine the fair market value of a non-consent tow and incident management tow originating in the City, considering financial information provided to the City by the towing company requesting the study. 1. A towing company may request that the City conduct a towing fee study by filing a written request with the City Manager by certified mail, return receipt requested, or by hand delivery. 2. Within ninety (90) days after the filing of an initial request, additional towing companies may join the request by filing written requests in accordance with Subsection (1). 3. The City shall conduct a towing fee study if the initial requestor and the additional requestors, if any: A. Accounted for not less than fifty percent (50%) of the non-consent tows or incident management tows performed in the City during the preceding twelve- month period, as determined by the City Manager; and B. Deposit with the City Manager a total fee of one hundred dollars ($100) for the towing fee study. 4. If the towing fee study is not conducted the City shall refund the fee, less a ten percent (10%) administrative fee. -15- S. Each towing company requesting the towing fee study shall cooperate with the City to conduct the study. Each such towing company shall provide to the City information determined by the City finance department to be reasonably necessary to determine the fair market value of towing services regulated under this article. 6. The City finance department shall complete a towing fee study not later than the 120th day after receiving all information required under Subsection (5). 7. The City finance department shall present the City Council the results of the towing fee study. The City Manger shall give to each towing company that owns or leases tow trucks registered with the City written notice of the time, date, and location of the City Council meeting at which the study is to be considered. The notice must be sent by United States regular mail to the towing companies' addresses listed in the latest registration applications on file with the Chief of Police. 8. Based on results of the towing fee study, the City Council may change the non-consent towing and incident management fees. The maximum fees must represent the fair market value of the services of a towing company performing non-consent and incident management tows originating in the City. 9. The City is not required to conduct more than one towing fee study within a two-year time period, measured from the date the City Council most recently considered a towing fee study. Sec. 36-17. Unclaimed Vehicles. (a) The Department shall be notified, in a manner determined by the Department, by the storage facility that it is in the possession of a vehicle abandoned for (10) ten days with the following information: (1) the location from which the vehicle was removed and the date and time of removal, the reason for the removal of the vehicle; (2) a physical description of the vehicle to include the year, make, model, color, state, license plate number and the vehicle identification number, the trade name of the vehicle tow service; and (3) the name, address and telephone number of the vehicle storage facility to which the vehicle was taken; and the name of the operator of the towing vehicle. (b) When a storage facility acquires possession of private property, non- consent or police-towed motor vehicle, the storage facility is entitled to: (1) towing charges (not to exceed posted or set rates); -16- (2) impound fees if noted; (3) reasonable storage fees (not to exceed amount indicated on required tow warning sign(s); and (4) notification charges copy of registration and notifications. (c) The Department will be given a weekly list of all reported vehicles that have been released noting the description of the vehicles and the release date of the vehicles. Sec. 35-18. Citizen Right to Hearing. As provided for in Section 685.003 of the Texas Transportation Code. If a motor vehicle has been removed from a parking facility and placed in a vehicle storage facility without the consent of the owner or operator, or a non-consent police tow the owner or operator is entitled to a hearing to determine whether or not probable cause existed for the removal and placement of the vehicle. Sec. 35-19. Unclaimed Vehicles. All unclaimed vehicles shall be disposed of consistent with the Texas Transportation Code Chapter 683 - Abandoned Motor Vehicles. Motor vehicles that have not been reclaimed shall be sold at a public auction, a COA issued (certificate of authority to demolish), or storage liens filed. ARTICLE VI. OFFENSES AND PENALTIES. Sec. 35-20. Offenses. (a) A person commits an offense if, within the City, he, his agent or employee: (1) engages in vehicle tow service for compensation without a valid tow service certificate of registration issued by the Department; or (2) intentionally or knowingly causes a vehicle to be removed from private property, without the consent of the vehicle owner or operator, by a vehicle tow service not licensed by TDLR; or (3) intentionally or knowingly employs or contracts with a vehicle tow service not licensed by TDLR for the purpose of having a vehicle removed from private property without the consent of the vehicle owner or operator; or (4) allows a tow truck or agent to be within 1,000 feet of the scene of a motor vehicle accident unless properly dispatched. No employee or agent of the Wrecker Service shall distribute business cards or other literature to, or communicate with any vehicle operator within 1,000 feet of the scene unless properly dispatched and in the presence of a police officer. No Wrecker Service shall follow, chase or respond to Fire, EMS, or Police calls unless requested. (b) A person commits an offense if he operates a wrecker engaged in a vehicle tow service in the City without a valid wrecker driver's permit issued to the person by the Texas Department of Licensing and Regulation. (c) A certificate holder commits an offense if he employs or otherwise allows a person to operate for compensation a wrecker owned, controlled or operated by the certificate holder unless the person has a valid wrecker driver's permit issued by TDLR. (d) A certificate holder commits an offense if he removes an unauthorized vehicle from a private property location which lacks, at each entrance to the property, the posting of a sign that meets state mandates and requirements as established in Chapter 2308 Texas Occupations Code (Vehicle Towing and Booting Act). (e) A certificate holder commits an offense if he fails to release a vehicle without charge to the vehicle owner or operator, or to the property owner, if the release is requested whether or not the vehicle has already been connected to the towing vehicle and, or before the vehicle is removed from the private property on which the vehicle is parked. (o A certificate holder commits an offense if he fails to notify the police department or have an employee notify the police department within one (1) hour after the removal of each vehicle from private property with the following information: (1) the location from which the vehicle was removed and the date and time of removal; (2) the reason for removal of the vehicle; (3) a physical description of the removed vehicle to include the year, make, model, color, state license plate number and the vehicle identification number; (4) the trade name of the vehicle tow service; (5) the name, address and telephone number of the vehicle storage facility to which the vehicle was taken; (6) the name of the operator of the towing vehicle; and (7) obtain incident number from police department. -ie- (g) A certificate holder commits an offense if he fails to obtain an incident number from the Department, after complying with Section (0, and enters that incident number on the impound log provided to the certificate holder by the Department. (h) A certificate holder commits an offense if he removes or causes the removal of a vehicle other than an illegally parked, abandoned or unauthorized vehicle from private property. (i) A certificate holder commits an offense if he tows or allows an employee to tow a non-consent vehicle to a storage facility that is located outside the city limits. (j) A certificate holder commits an offense if he tows a vehicle from private property to a storage lot other than the one posted on the sign as required in this section. (k) A certificate holder commits an offense if he operates a towing vehicle, which has not been registered with the Department and approved by this article, and those rules and regulations as established herein. (1) A certificate holder commits an offense if he removes or causes the removal of any vehicle from private property to a vehicle storage facility that is not in compliance and not currently licensed under the Texas Vehicle Storage Facility Act. (m) A certificate holder commits an offense if he fails to answer the storage location telephone at any time, 24 hours per day or have an employee or contractor answer such telephone at any time, 24 hours per day. (n) A certificate holder commits an offense if he fails to have the storage facility respond on a 24 hour per day basis to release any vehicle which has been towed and impounded there. (o) A certificate holder commits an offense if he fails to have a certificate of registration issued hereunder conspicuously displayed at his place of business. (p) A certificate holder commits an offense if he fails to release a vehicle within 60 minutes of a request by the owner or operator of the vehicle, which has been impounded. (q) A certificate holder commits an offense if he imposes or attempts to impose any condition for release of any motor vehicle which has been towed to a storage facility, other than proof of ownership, identification of the person claiming the vehicle and the payment for towing and storage. (r) A certificate holder commits an offense if he fails to provide the owner or operator of the vehicle with a written receipt for towing and storage charges, the -19- date and time of removal, the date and time of return and the name of the certificate holder, which has done the removal. (s) A certificate holder commits an offense if he fails to retain at his principal place of business a copy of any receipt or record required by this article for a period of not less than one year after the date the receipt was originally issued. (t) A certificate holder commits an offense if he fails to maintain a permanent sign on both sides of all towing vehicles used in his operation which complies with state law. (u) A certificate holder commits an offense if he has in his employ any person who has had a motor vehicle tow service license revoked or denied within two (2) years. (v) A certificate holder commits an offense if refuses to allow the Department to inspect, upon request, all towing records required to be kept by this article and/or by state law. (w) A certificate holder commits an offense if he charges more than the maximum fee allowed by this ordinance. (x) A certificate holder commits an offense if does not allow a vehicle owner to pay the fee for vehicle tow service in any of the method of payments, as desired by the owner of the vehicle, allowed by this ordinance. (y) A certificate holder commits an offense if their Vehicle Storage Facility does not submit a weekly list of vehicles that have been released after having been submitted as abandoned to the police department. (z) A certificate holder or person commits an offense if he violates a provision of this ordinance or any other law applicable to him. Sec.35-21. Penalties. A person commits an offense if he violates a provision of this ordinance applicable to him. A culpable mental state is not required for commission of an offense under this ordinance unless the provision defining the conduct expressly requires a culpable mental state. A separate offense is committed each day in which an offense occurs. An offense committed under this ordinance is punishable by a fine of not less than $ 200.00, nor more than $500.00. The minimum fine established in this Subsection shall be doubled for the second conviction of the same offense within any two year period and tripled for the third and subsequent convictions of the same offense within any two (2) year period. At no time shall the minimum fine exceed the maximum fine established in this Subsection. Prosecution for an offense under this Chapter does not prevent the use of other enforcement remedies or procedures applicable to the person charged with the conduct or involved in the offense. -20- ARTICLE VII. ENFORCEMENT Sec. 35-22. Authority to Inspect. The Department may inspect any vehicle tow service or vehicle storage facility to determine whether the certificate holder is in compliance with this ordinance, regulations established under this ordinance and other applicable ordinances or laws. A certificate holder or employee of a certificate holder shall not attempt to interfere or refuse to cooperate with the Department in the conduct of any investigation or discharge of any duty pursuant to this ordinance. Sec. 35-23. Correction Order. (a) If the Department determines that a certificate holder is in violation of this Chapter, terms of its certificate of registration, a regulation established by the Department, or other law, the Department may notify the certificate holder in writing of the violation and by written order, direct the certificate holder to correct the violation within a reasonable period of time. In setting the time for correction, the Department shall consider the degree of danger to the public health or safety and the nature of the violation. If the violation involves equipment that is unsafe or functioning improperly, the Department shall order the certificate holder to immediately cease use of the equipment. (b) If the Department determines that a violation constitutes an imminent and serious threat to the public health or safety, the Department shall order the certificate holder to correct the violation immediately. If the certificate holder fails to comply, the Department shall promptly take action as the Department considers necessary to enforce the order. (c) The Department shall include in a notice, issued under this section, an identification of the violation, the date of issuance of the notice, and the time period within which the violation must be corrected. The notice shall further include a warning that failure to comply with the order may result in suspension or revocation of a certificate of registration or imposition of a fine or both and a statement indicating that the order may be appealed to the Ciry Manager. (d) In the event that the Department shall send a notice or require, in writing, an explanation from a certificate holder in an administrative capacity, the certificate holder shall respond in a reasonable period of time not to exceed five (5) days excluding holidays. Failure to respond within a reasonable period of time may result in the enforcement of an administrative form of discipline which may include the suspension or revocation of any certificate of registration issued pursuant to this article. -21- Sec.35-24. Appeals. (a) A certificate holder may appeal a correction order issued under this ordinance if an appeal is required in writing not more than ten (10) days after notice of the order or action is received. (b) The City Manager or a designated representative of the City Manager or Chief of Police shall act as the hearing officer in an appeal hearing. (c) The hearing officer shall give the appealing party an opportunity to present evidence and make argument. The hearing officer shall make a ruling on the basis of a preponderance of evidence presented at the hearing. (d) The hearing officer may affirm, modify or reverse all or part of the order of the Department. The decision of the hearing officer is final." Section 3. That all provisions of the ordinances of the City of Paris, Texas in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Paris not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4. That the repeal of any ordinance or part of ordinances affected by the enactment of this ordinance shall not be construed as abandoning any action now pending under or by virtue of such ordinance or as discontinuing, abating, modifying, or altering any penalty accruing or to accrue, or as affecting any rights of the municipality under any section or provisions of any ordinance at the time of passage of this ordinance. Section S. That it is the intention of the Ciry Council of the City of Paris that this ordinance, and every provision hereof, shall be considered severable, and the invalidity or partial invalidity of any section, clause, or provisions of this ordinance shall not affect the validity of any other portion of this ordinance. Section 6. That any person violating any provision of this ordinance shall be guilty of a Misdemeanor, and upon conviction, shall be subject to a fine in accordance with provisions of Sec. 1-6 of Chapter One of the City of Paris Code of Ordinances, and each and every day's continuance of any violation of the above-enumerated sections shall constitute and be deemed a separate offense. Section 7. Introduced and read on first reading on October 25, 2010, at a regular meeting of the City Council of the City of Paris and a second reading on November 8, 2010, at a regular meeting of the City Council of the City of Paris; the same being two (2) separate regular meetings of the City Council of the City of Paris. Section 8. That this ordinance shall become effective from and after its passage and publication as required by law. -22- PASSED AND ADOPTED on this 9th day of May, 2011. 4illIrd, Mayor ATTEST: nice Ellis, City Clerk APPROVED AS TO FORM: W. Kent Mc ar, C Attorney -23-