ORDINANCE NO

ORDINANCE NO. 2014-55 AN ORDINANCE REPEALING AND REPLACING THE CODE OF ORDINANCES, CITY OF BOERNE, TEXAS CHAPTER 12, ARTICLE IX. TOW TRUCKS, SECTIONS 12-286 - 12-338 WHEREAS, the City Council of the City of Boerne has determined that a need exists to regulate tow services inside the City limits; and WHEREAS, the City Council of the City of Boerne has determined that in order to avoid competing towing companies "chasing" accident scenes, it is necessary to set up a rotation system; and WHEREAS, the City Council of the City of Boerne has determined that a need exists to protect its citizens from overcharges and ensure that tow trucks providing services for nonconsensual tows within the City limits meet the necessary insurance and state law requirements; and WHEREAS, the City Council of the City of Boerne has determined that this ordinance is necessary to protect the health, safety, and welfare of the citizens of Boerne by regulating the tow service provided to its citizens in a reasonable manner; NOW, THEREFORE, BE IT ORDAINED, BY THE CITY COUNCILOF THE CITY OF BOERNE, TEXAS: that Chapter 12, Article IX. Tow Trucks, Sections 12-286 - 12-338 of the Code of Ordinances, City of Boerne, Texas, is hereby repealed and replaced to read as follows: DIVISION 1. GENERALLY Sec. 12-286. - Definitions. For the purpose of this article, the following terms shall have the respective meanings ascribed to them: Certificate of registration: The document used by the Texas Department of Licensing and Regulations authorizing the operation of a specific tow truck. Consent tow: 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. Except as set forth in the definition of "nonconsent tow" or "rotation tow" below, a tow will be considered a consent tow where the owner is able to give consent. Motor vehicle: A vehicle subject to registration under the Certificate of Title Act or any other selfpropelled device permitted to travel on a public highway. Nonconsent tow: Any tow conducted without the permission of, or not at the direction of, the towed vehicle's legal or registered owner, or such owner's authorized representative. Not withstanding this definition, certified law enforcement officials control the scene of an accident in the manner they deem appropriate and can order a rotation tow as defined below. 1

Privilege: A particular and peculiar power, franchise or benefit enjoyed by a person, company, or class not generally possessed by others and which, once granted, does not create property rights. Privilege holder: An owner/operator duly placed on the Police Department tow truck rotation list by the Chief of Police of the City of Boerne. Rotation list or master tow truck rotation list: The Police Department rotation list of privilege holders' tow trucks, prepared and used as provided in this article. Tow truck: A commercial motor vehicle equipped with, or used in combination with, a mechanical device, mini-wrecker, or auto trailer, and which is adapted or used to tow, winch or otherwise move a motor vehicle, which together with the towed vehicle has a gross vehicular weight, registered weight or actual weight of twenty-six thousand (26,000) pounds or less. Tow truck operator: A person, partnership, or corporation engaged in the towing business having at least one (1) tow truck that is fully equipped and that has a current valid certificate of registration issued by the Texas Department of Licensing and Regulations. Towing business: A commercial enterprise organized for the purpose of moving motor vehicles. Vehicle: Every device in, or by which any person or property is or may be transported or drawn upon a public highway, except devices used exclusively upon stationary rails or tracks. Vehicle storage facility: A garage, parking lot, or any facility owned or operated by a person other than a governmental entity for storing or parking ten (10) or more vehicles that has a current valid license issued by the Texas Department of Licensing and Regulations. DIVISION 2. ROTATION LIST PRIVILEGE Sec. 12-306. - Number of privileges granted; administrative responsibilities; no property rights granted. The City Council hereby reserves the right to determine a maximum number of towing businesses to be placed on the rotation list. Placement on the master tow truck rotation list is a privilege, not a right. Furthermore, placement on the list does not create any property rights and does not guarantee continued placement thereon. All tow truck rotation list privilege holders are independent contractors while acting pursuant to this section, and shall not be deemed to be, considered as, or in any way represented to be employees or agents of the city. Sec. 12-307. - Applications. Application contents. Applications for placement on the tow truck rotation list shall be made on a form provided by the City Secretary and shall contain the information required in subsection. Application may be submitted year round for consideration of the rotation list as set out in (C) (1). Documents to be submitted with application. Applications shall be accompanied by 2

copies of the following documents: (1) Current certificate of insurance meeting applicable state and city requirements covering each tow truck requested to be placed on the rotation list; and (2) Current certificate of insurance meeting applicable state and city requirements covering the vehicle storage facility to be used by the rotation list applicant. (3) Should City Council decide to increase the number of towing businesses on the rotation list, an application fee of $15 must accompany the application. Term; privilege fee. The Police Department tow truck rotation list privilege term and fees shall be as follows: (1) The rotation list term shall be from January 1 through December 31 of each year. (2) Rotation Privilege Fee adopted by City Council for each vehicle towed as a result of the rotation list shall be charged and paid within ten (10) days of receipt of monthly bill from the city. (3) Applications may be submitted any time during the rotation list term for the duration of the annual term for the availability to be placed on the rotation list should a privilege holder be suspended or removed from the rotation list. (4) The Police Department tow truck rotation list will dictate which tow truck operator will be selected. Selection will alternate between qualified privilege holders on Police tow truck rotation list. Sec. 12-308. - Placement on the rotation list; transferability. Each towing business that meets all the requirements of this article for placement by the Chief of Police on the master tow rotation list will be separately entered on the list for rotation purposes, subject to the maximum number of rotation list privileges established by City Council, with the order of placement established by the drawing of lots to be conducted by the Chief of Police. The Chief of Police shall provide the Police Department a master tow truck rotation list including the name of the privilege holder and the twenty-four-hour business phone number for each tow truck placed on the list. No towing business shall remain on the rotation list if any of the requirements of this article are found to have been violated. Once the Chief of Police grants a rotation list privilege by placing a towing business on the rotation list, the privilege holder shall not transfer his/her privilege to be on such list to another tow truck operator. Sec. 12-309. - Master list renewal; drawing lots. Each privilege holder who has been placed on the master rotation list by the Chief of Police may renew the privilege for tow truck(s) each succeeding annual term so long as all the requirements of this article are met, and applications for the rotation list are 3

submitted timely. In the event that the number of applications for rotation list privileges holders increases or decreases, the Chief of Police shall redraw lots to determine the rotation order. If the applicants remain the same the order shall carry over to the next year. Sec. 12-310. - Calling tow truck; responding to call. When a vehicle which has been involved in a collision or accident, or which is otherwise disabled, is unable to proceed safely, or when a driver of a vehicle is physically unable to drive such vehicle, or when a Police Officer arrests the driver of a vehicle and determines that the vehicle is to be impounded, the Police Officer investigating such incident or making such arrest shall request the driver of such vehicle to designate a tow truck operator to remove such vehicle. When the driver has so designated the tow truck operator, the Police officer shall communicate that fact immediately to the Police communications officer on duty, and it shall be the duty of such communications officer to call the designated tow truck operator to send a tow truck to the scene or site of the incident or arrest. In the event such driver is physically unable to designate a tow truck operator, or refuses to designate one, the Police officer investigating such incident or making such arrest shall notify the Police communications office of such fact, and the communications officer shall select the appropriate privilege holder on the rotation list and call that privilege holder to send a tow truck to the scene or site of such incident or arrest. In any event, if the Police officer determines that a vehicle is to be seized as evidence or for possible forfeiture proceedings, the Police officer making such determination shall notify the communications officer to notify a privilege holder from the rotation list to respond to the location of the call. The communications officer shall make all such selections on a rotation basis from the approved master tow truck rotation list. On receiving the first request for notification of a tow truck from the rotation list, the Police communications officer shall call the tow truck assigned to rotation tows for that time period. A proper notation of each rotation list call shall be made by the Police communications officer. Each rotation list privilege holder shall respond to a rotation call within thirty (30) minutes after being notified by the Police communications officer. Failure to so respond shall constitute a violation of this article. If the rotation list privilege holder does not respond within thirty (30) minutes, the next rotation wrecker shall be notified and have the right to tow said vehicle. A rotation list privilege holder shall not respond to the location of an accident reported to the Police Department without first being requested by the Police Department communications officer. Sec. 12-311. - Duties of tow truck owners/operators. A tow truck placed on the rotation list hereunder shall be subject to the following conditions: Tow truck owners/operators shall keep and maintain towing equipment which is required under this article and under the rules and regulations promulgated by the Texas Tow Truck Act and the Administration Rules promulgated by the Texas Department of Transportation in a good operating condition. Tow truck operators when responding to Police dispatch accident calls, shall remain at the scene until the roadway has been swept and all major debris is removed by the wrecker so that the roadway is drivable to the satisfaction of the Police officer or public 4

safety aide directing traffic at the scene. (e) (f) A rotation list privilege holder responding to the scene of an accident shall remove from the highway debris resulting from an accident which may impede the orderly flow of traffic. This includes broken glass or other lightweight debris that can easily be removed by one (1) person, except that the rotation list privilege holder may be requested to perform other cleanup services in connection with an accident by a certified law enforcement official or other authorized government official, where the cleanup does not involve the removal of the cargo carried by the vehicle to be towed. Failure to so remove such debris shall constitute a violation under this article. The tow truck operators shall, whenever possible, give a business card with pertinent information to the owner or agent of the vehicle being towed. Tow truck operators shall comply with all rules and regulations governing towing services as set out in the Texas Tow Truck Act and the administrative rules as promulgated by the Texas Department of Licensing and Regulations and the City of Boerne and shall satisfy due process requirements as required by law in the impoundment of any vehicles, the assessment of charges for services rendered, and the attachment and execution of any lien. Tow truck owners/operators shall make full disclosure, to the person towed, of the fees for towing and other associated costs. Sec. 12-336. - Denial of rotation list privilege, hearing. The Chief of Police shall deny the applicant a rotation list privilege if: (1) The applicant has been finally convicted of a felony or misdemeanor for which the maximum punishment is confinement in jail or a fine exceeding five hundred dollars ($500.00), if the crime relates to the duties and responsibilities involved in the operation of a tow truck or operation of a vehicle storage facility. (2) The applicant misstated or omitted a material fact in the application. (3) The applicant failed to submit a fully completed application, sworn to under oath by the applicant. (4) The applicant failed to furnish all documents required to be submitted with the application. (5) The applicant refuses to submit to the city inspecting or examining the tow trucks, vehicle storage facility, business records, documents, books, accounts, equipment or facilities of the applicant's towing business, during normal business hours, as necessary to insure eligibility and to enforce the requirement of this article. (6) The placement on the rotation list was procured by fraudulent conduct or false statement of a material fact or that a fact concerning the applicant was not disclosed at the time of application and such fact would have constituted just cause for refusal to place the applicant on a rotation list. (7) The tow truck owner/operator caused payment in the form of a gratuity to be made to 5

any third person not involved in an accident for information as to the location of that accident. (8) The tow truck owner/operator overcharges for a service covered by this article based upon amounts allowable under the applicable laws. (9) The tow truck owner/operator has violated any of the requirements of this article or any of the rules and regulations as established by the City of Boerne or any rules or regulations of the Texas Department of Licensing and Regulations or any other state law or city ordinance. (10) The tow truck owner/operator has established a pattern of conduct causing legitimate consumer complaints. Sec. 12-337. - Suspension of privilege. In addition to punishment for conviction of violations of this article as provided, the Chief of Police may suspend for a period not longer than thirty (30) days any rotation privilege issued under this article, after notice and hearing as provided herein, and based upon any of the following grounds: (e) (f) (g) The operator/ owner, rotation list privilege holder, or employee has been finally convicted in municipal court of a violation of this article occurring during the term. The operator/owner has been finally convicted of a felony or misdemeanor as described in subsection 12-336(9). The operator/owner has allowed such holder's insurance, as required herein, to be canceled, withdrawn, expired, or terminated. The operator/owner intentionally misstated or omitted a material fact in an application. The operator/owner has failed to comply with any of the provisions of the Texas Tow Truck Act or the Vehicle Storage Facility Act, as said acts may be hereafter amended. The operator/owner's certificate of registration for any tow truck or vehicle storage facility license issued by the Texas Department of Licensing and Regulations has been suspended, in which case, notwithstanding the above, the Chief of Police must suspend the towing sticker for the remainder of the suspension period levied by the Texas Department of Licensing and Regulations. The operator/owner or an employee fails to respond to a rotation list call to a specified location within the time specified after being dispatched to such location by the Police communications officer. Sec. 12-338. - Suspension; revocation hearings. Whenever the Chief of Police has reason to believe grounds exist for the suspension or revocation of a rotation list privilege, issued under this article, he shall cause an investigation to be made. The investigator shall make a report to the Chief of Police, stating the facts which establishes that a violation has occurred is based. The Chief of Police shall, prior to any such suspension or revocation, schedule a hearing, before the 6

City Manager, to determine whether such privilege, shall be suspended or revoked. Written notice setting forth the charges and the date, time and location of such hearing shall be given to the rotation list privilege holder not less than ten (10) calendar days prior to such hearing. The City Manager shall make a determination within a 72-hour period. If the City Manager determines that grounds exist for suspension or revocation of a rotation list privilege, the Chief of Police shall immediately issue such orders of suspension or revocation as are authorized. Any such order issued hereunder shall become effective ten (10) calendar days from its date of issuance unless a written request for an appeal hearing before the City Council is filed with the City Secretary within ten (10) calendar days of the issuance of such order. Failure to timely request a public hearing shall result in a waiver of the right to appeal. If requested, a public hearing shall be held before the City Council no later than thirty (30) calendar days after the City Secretary receives the request. At the end of the public hearing, the City Council shall render its decision regarding the suspension or revocation. The decision of the City Council shall be final. A privilege holder whose rotation list privilege has been revoked as provided herein is prohibited from being returned to the rotation list for a period of one (1) year from the effective date of such revocation. PASSED and APPROVED on first reading this the 16 th day of December, 2014. PASSED, APPROVED and ADOPTED on second reading this the 13 th day of January, 2015. APPROVED: ATTEST: s/s Michael D. Schultz Mayor s/s Lori A. Carroll City Secretary APPROVED AS TO FORM: s/s Kirsten B. Cohoon City Attorney 7