Original Notice.

     Preproposal statement of inquiry was filed as WSR 02-12-095.

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

     Purpose: Further review of current rules to ensure necessity, effectiveness, efficiency, clarity, intent, coordination with other jurisdictions and agencies, cost benefits and fairness in accordance with Governor's Executive Order 97-02.

     Statutory Authority for Adoption: RCW 46.55.190.

     Summary: Review of current rules governing registered tow truck operators.

     Reasons Supporting Proposal: Governor's Executive Order 97-02 for WAC review.

     Name of Agency Personnel Responsible for Drafting and Implementation: Chuck Coach, Olympia, Washington, (360) 664-6453; and Enforcement: Myke Gable, Olympia, Washington, (360) 664-6451.

     Name of Proponent:

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

     Explanation of Rule, its Purpose, and Anticipated Effects: Review of WAC governing registered tow truck operators and the rules for the towing and impoundment of abandoned vehicles.

     Proposal Changes the Following Existing Rules: Several sections are changed in light of the review for necessity, effectiveness, clarity, intent, coordination with other agencies, cost benefits and fairness. The use of concertina wire may be substituted for barbed wire along the secure area fence, storage with an enclosed building will be considered secure with no waiver required, the notice of custody and sale prescribed by the department must be sent to lessors and lessees in addition to registered and legal owners, a copy of the twenty-four hour impound notice to law enforcement will be required in the records, and the department may require an inspection by the appropriate law enforcement agency not necessarily the Washington State Patrol.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposal does not impose additional duties on the registered tow truck operator industry.

     RCW 34.05.328 does not apply to this rule adoption.

     Hearing Location: Dealer and Manufacturer Services, Department of Licensing, 2000 West 4th, Black Lake Building 3, Olympia, WA 98502, on September 10, 2002, at 10:30 a.m.

     Assistance for Persons with Disabilities: Contact Linda Mason by September 9, 2002, TDD (360) 664-8885 or (360) 664-6455.

     Submit Written Comments to: Gail Saul, Dealer Services, P.O. Box 9039, Olympia, WA 98507, fax (360) 586-6703, by September 4, 2002.

     Date of Intended Adoption: September 24, 2002.

July 17, 2002

G. A. McDougall

Deputy Director

for Fred Stephens

Director

OTS-5841.1

AMENDATORY SECTION(Amending WSR 00-01-058, filed 12/10/99, effective 1/10/00)

WAC 308-61-026   Definitions -- Registered tow truck operator.   (1) "Affidavit of sale" - that document prescribed by the department and given to the successful bidder by the operator. The affidavit ((shall)) must state that the sale was conducted properly pursuant to chapter 46.55 RCW and must be notarized. The affidavit may be submitted to the department with an application for certificate of title or may be used as a title document by a licensed auto wrecker, hulk hauler or scrap processor.

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

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

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-026, filed 12/10/99, effective 1/10/00. Statutory Authority: RCW 46.55.190, 46.79.080 and 46.80.140. 93-08-076, § 308-61-026, filed 4/6/93, effective 5/7/93; 88-06-025 (Order DLR 164), § 308-61-026, filed 2/25/88. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-026, filed 1/6/86.]

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-105, filed 12/10/99, effective 1/10/00. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-105, filed 1/6/86.]

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

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

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

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-108, filed 12/10/99, effective 1/10/00; 90-01-060, § 308-61-108, filed 12/18/89, effective 1/18/90. Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080. 88-06-025 (Order DLR 164), § 308-61-108, filed 2/25/88. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-108, filed 1/6/86.]

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

Place illustration here.

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-115, filed 12/10/99, effective 1/10/00. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-115, filed 1/6/86.]

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-125, filed 12/10/99, effective 1/10/00. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-125, filed 1/6/86.]

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

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

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

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

     (6) The notification to be sent by first-class mail within twenty-four hours after the impound must be sent to any lessor or lessee, as well as to the last known registered and legal owner (lien holder) of the vehicle.

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

     (((7))) (8) As the record required in RCW 46.05.150(2) the registered tow truck operator must keep a copy of its twenty-four-hour impound notice to law enforcement.

     (9) Information contained in the master log ((shall)) must include:

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

     (b) Storage lot used if multiple lots;

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

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

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

     (f) Date of auction advertisement and of auction;

     (g) Amount of towing and storage lien;

     (h) Amount of auction proceeds;

     (i) Amount of surplus funds.

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-135, filed 12/10/99, effective 1/10/00. Statutory Authority: RCW 46.55.190, 46.79.080 and 46.80.140. 93-08-076, § 308-61-135, filed 4/6/93, effective 5/7/93. Statutory Authority: RCW 46.55.190. 90-01-060, § 308-61-135, filed 12/18/89, effective 1/18/90. Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080. 88-06-025 (Order DLR 164), § 308-61-135, filed 2/25/88. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-135, filed 1/6/86.]

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-145, filed 12/10/99, effective 1/10/00. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-145, filed 1/6/86.]

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

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

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

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-158, filed 12/10/99, effective 1/10/00. Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080. 88-06-025 (Order DLR 164), § 308-61-158, filed 2/25/88. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-158, filed 1/6/86.]

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-168, filed 12/10/99, effective 1/10/00. Statutory Authority: RCW 46.55.190, 46.79.080 and 46.80.140. 93-08-076, § 308-61-168, filed 4/6/93, effective 5/7/93. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-168, filed 1/6/86.]

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

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

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

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

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

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

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

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-175, filed 12/10/99, effective 1/10/00; 91-20-121, § 308-61-175, filed 9/30/91, effective 10/31/91. Statutory Authority: RCW 46.55.190, 46.80.140 and 46.79.080. 88-06-025 (Order DLR 164), § 308-61-175, filed 2/25/88. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-175, filed 1/6/86.]

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

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

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

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

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

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

[Statutory Authority: RCW 46.55.190. 00-01-058, § 308-61-190, filed 12/10/99, effective 1/10/00; 90-01-060, § 308-61-190, filed 12/18/89, effective 1/18/90. Statutory Authority: Chapter 46.55 RCW. 86-03-011 (Order DLR-088), § 308-61-190, filed 1/6/86.]

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