Memorandum

City of Lawrence

Legal Services

 

TO:

Toni Ramirez Wheeler, Director of Legal Services

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

May 10, 2007

RE:

Ordinance 8109 – Vehicle tow and impoundment ordinance

 

 

INTRODUCTION

 

In the ongoing effort to update our City Code to ensure that our ordinances accurately reflect the current state of the law and incorporate procedures that are as straightforward and as easily administered as possible, I have reviewed Sections 17-201 through 17-209 of the City Code.  These ordinance sections govern the towing and impoundment of motor vehicles by the Police Department.  They are subordinate to the requirements of K.S.A. 8-1101 and 8-1102, as well as constitutional due process considerations.  As a result of this review, I have drafted ordinance 8109 for your consideration.  This ordinance contains proposed amendments to our current towing and impoundment ordinance.

 

BACKGROUND

 

The towing and impoundment of vehicles under these ordinance sections can be broadly divided into two categories – emergency tows and non-emergency tows.  The reasons for emergency tows are set forth in Section 17-201.  Some of the situations that might justify such a tow are vehicles left in the roadway that pose a traffic safety hazard, vehicles that have been stolen or abandoned, and vehicles driven by a person who has been arrested when the vehicle is not legally parked and no person is readily available to take possession of the vehicle.  The other type of tow is the non-emergency or “48 hour” tow.  Tows of this nature take place when a vehicle is in violation of the legal requirement that vehicles parked on public property or private property open to the public must be moved at least once every 48 hours.  Also, the towing and impoundment of vehicles that are parked in posted tow zones would fit into this category.

 

Under the laws of Kansas and our ordinances, if a vehicle is towed by the police and the person to whom the vehicle belongs does not redeem the vehicle by paying the tow, storage fees and other amounts reasonably related to the tow then the vehicle is subject to being sold at public auction to satisfy the amount due.  K.S.A. 8-1102 establishes mandatory steps that must be taken in such an event and prescribes specific time periods within which each of those steps must be taken.  It does not, however, create an administrative hearing procedure to contest the tow and impoundment of a vehicle.  The City of Lawrence, like many other cities, has developed its own procedure. 

 

Having such a procedure is important to avoid any risk of running afoul of a specific provision of the Fourteenth Amendment.  The pertinent part of that amendment prohibits the States, and by extension their political subdivisions, from depriving any person of life, liberty of property without due process of the law.  Obviously, taking a person’s car away is a deprivation of property that entitles the person to due process protection.  The essential elements of procedural due process are notice and an opportunity to be heard at a meaningful time to contest the deprivation.  Due process is a flexible concept and while offering the notice and opportunity to be heard at a reasonable time before instead of after the deprivation is favored, both are acceptable in appropriate circumstances.

 

The ordinances as they are currently drafted appear to contain both types of hearings but the procedures to request these hearings should be better defined to prevent any confusion.  Additionally, other parts of the ordinances do not clearly reflect the current state of the law and should be updated.  The proposed ordinance is designed to meet both of these goals.

 

THE PROPOSED ORDINANCE

 

Section 17-201 of the City Code contains a list of reasons for emergency tows.  In the proposed ordinance the list has been amended to clarify that a person arrested has significant discretion to provide for the disposition of his or her vehicle.  As a general rule, only when the vehicle is not legally parked or no person is readily available to take control of the vehicle may the vehicle be towed.  An additional amendment to the current ordinance adds vehicles that are evidence of a crime to the list of justifications for an emergency tow.   A final addition to this section incorporates the holding of State v. Shelton, 278 Kan. 287 (2004) as part of the ordinance.  Shelton emphasized that the ultimate question in justifying the impoundment of a vehicle is whether the decision to impound is based upon reasonable grounds.  Rather than attempt to predict and list every possible scenario that a court might find gives rise to reasonable grounds to tow and impound a vehicle, the more general reasonable grounds language has been included in the ordinance.

 

The remainder of the changes in the proposed ordinance center around making the rules pertaining to the handling of vehicles that are towed, notification of vehicle owners, the proper way to request a hearing to challenge an impoundment, and the manner that a hearing is held more definite than the provisions of the current ordinance.  These changes will make the operation of the ordinance more understandable and predictable for police officers, court employees and citizens alike.

 

Under the amended ordinance, prior to initiating a 48 hour tow a police officer must first investigate to determine whether a vehicle has been parked on a public street or parking lot for a minimum of 48 hours.  If sufficient evidence indicates that this is, in fact, the case the police officer must post notice on the car that declares his or her intent to impound the vehicle after the expiration of an additional 48 hours, lists the legal basis for the impoundment, notifies the owner of a right to contest the proposed impoundment through a pre-impoundment hearing, and details the owner’s right to post bond if the vehicle is towed to secure the release of the vehicle.  Only after the additional 48 hours have passed may the vehicle be towed and impounded.  Therefore, while these tows are termed 48 hour tows, they only occur after the expiration of at least 96 hours.

 

If a written request for hearing is filed within the 48 hour notice period then the Police Department is prohibited from towing the vehicle until a hearing is held and the Municipal Court rules that there is an adequate factual basis to support the tow.  For all other types of tows, an individual has ten days following the tow or mailing of required notice to request a hearing.  The required written notice that a vehicle has been towed must be sent to the owner by certified mail within 48 hours of the towing of the vehicle.  In the current ordinance there is a provision requiring attempted telephone contact during this time as well.  While the practice of attempting to call an owner when his or her car is towed is a good one, the current language creates an issue that is difficult to definitively document and prove in the same way that certified mail notice is.  Therefore, telephone calls make more sense as a matter of courtesy than as a condition precedent to a valid tow and are deleted as a requirement from the proposed ordinance.

 

If an individual requests a hearing, he or she has the right to post a bond in an amount set by the Municipal Court pending the hearing to obtain immediate return of the car.  The bond is meant to cover tow, storage and other related fees, and will be forfeited if the person fails to show up for the requested hearing.  In the event that a person does not post a bond for a return of the vehicle, an expedited hearing schedule is utilized that requires the hearing to be held within three business days.  This places an outside time limit for any erroneous deprivation of property that might occur.  Hearings that happen after a car has been released on bond must occur within ten business days unless continued for cause.

 

For tows that are being contested after they have occurred, the Municipal Court must be satisfied by the evidence at hearing that a sufficient factual basis exists to show that the tow was lawful.  If the Court is satisfied, then the costs of the tow must be paid by the owner of the vehicle prior to its release.  If the evidence is insufficient, however, the City pays for the tow under its tow contract, and the vehicle is immediately released to the owner or other lawful possessor. 

 

If a hearing request is not filed for a vehicle or, after an unsuccessful hearing the vehicle in not redeemed by the owner by paying the fees due under the ordinance, then the vehicle is eventually subject to sale to satisfy the amounts due.  Within the first 30 days after a vehicle is impounded, the Police Department must attempt to verify the ownership of the vehicle and whether there are any lienholders affected by the impoundment.  If there are, not more than 10 days after receipt of the verification a written notice to the owner and lienholders must be mailed by certified mail.  This notice will warn the owner and lienholders that they have 15 days from the date of the mailing of the notice to pay the charges incurred or the vehicle may be sold at public auction.  This timeline is taken directly from K.S.A. 8-1102.  After 15 days of the mailing of the notice, or 30 days if the motor vehicle is less than 5 model years old, notice of the impending sale must be given by newspaper publication once per week for two consecutive weeks.  Only after 10 days have elapsed since the second publication may the vehicle actually be sold at auction.  After satisfaction of the costs allowed by ordinance, the balance of any proceeds will be returned to the vehicle owner, or if the vehicle owner is unknown, to the City’s general fund.

 

Provisions in the current ordinance related to vehicles of an apparent value of less that $100 were eliminated from the amended ordinance as their inclusion added another layer of regulation that could lead to confusion with no real purpose.  Very few, if any, vehicles will not be worth at least $100 and the relevant portions of Kansas statute do not currently include these provisions in any event.

 

I believe that the proposed ordinance is a significant improvement over the current ordinance and recommend its adoption.  If I can be of further help, please let me know.