September 8, 2003
Before you read this, you might want to read Part 1 and Part 2.
Two weeks ago, I reported on an ugly encounter that a group of us had with a tow truck driver. As I noted at the time, a lot of this seemed to be in violation of the vehicle code and the whole thing smelled of extortion. I have since spent some time talking to law enforcement officials — all of whom, by the way, were uncommonly polite and helpful and difficult to get on the phone because they have to juggle so many cases at once. I think I now have a better understanding of the situation…and why these guys have a racket that is difficult to combat. The bottom line is that, yes, the driver in this case probably violated the law but that there's nothing the law can do. Prior to 1995, they could. One of the detectives to whom I spoke said, "If this had happened in '94, we'd be able to go out and arrest him for car theft and several other things, except that back in '94, he probably wouldn't have tried it."
What happened in 1995 was a massive deregulation of the towing industry as part of the Federal Aviation Administration Act of'95. The main part of the act, of course, had to do with airlines but they tossed in interstate trucking as part of the bargain and somehow,thanks to the fine lobbying efforts of the tow truck industry, towing snuck in there. The California state laws are still on the books and going by them, what our friend the tow truck driver did is probably illegal. But what has happened is that the courts have ruled that the federal law supersedes the state laws, and the federal law changes the offense to a civil matter. In other words, the state cannot prosecute the guy but I can sue him. If I sue him, the most I can collect is quadruple damages…in other words, $600.
To win, I would have to show he had violated the California Vehicle Code, which I believe he did, but proving that would not be easy. There is no doubt in my mind that the guy lied to us, claiming the cost would be $250 when in fact, that amount is still regulated and it would have been more like $137. But doubtlessly, that would come down to his word against mine and anyway, it's not a clear violation of the law to lie. More relevant is the fact that the posted sign was apparently not the right size or wording…but one of the detectives with whom I spoke cautioned me that judges sometimes regard that as a technicality, and one that represents wrongdoing by the property owner and not the tow truck. It is not something you want to hang your whole case upon.
The biggest violation I could prove might be if, as I suspect, the tow truck driver could not show that a property owner (i.e., someone with legal responsibility for the private road) had directly authorized the tow. My suspicion is that no one phoned; that this driver merely cruises areas where he knows he may find cars parked in apparent violation of posted signs. When he finds them, he starts towing…and of course, he hopes he can get people to pay him $125 to not impound their cars, rather than the higher fee if he does. There are three possible scenarios here…
One is if he had no authorization whatsoever from the property owner. Regulation or deregulation, that would be a pretty clear violation of the law, and would likely land the guy in jail, above and beyond any monetary damages to those he had fleeced. As one detective told me, this is possible but not probable.
The second would be if he had received a specific call from the property owner to remove my car. According to the California Vehicle Code, this has to be done in writing and the property owner must be present…but the federal deregulation largely gutted those conditions. Now, there merely has to be a specific call. The problem with pursuing this possible violation is that until I got the guy into court, I would have no way of knowing if any of the homeowners on the street had called him. He doesn't have to give me that information.
The third scenario is the most likely. A lot of the companies that tow cars off private property are now operating under what they call "blanket authorizations," meaning that the property owner has authorized them to patrol the area and remove any vehicle they find parked in violation of the posted signs without a specific call. This is contrary to the Vehicle Code but several towing companies are still fighting in court, on matters ongoing, claiming that that provision has been voided by the federal deregulation and that blanket authorizations are now legal. In fact, the tow truck company for which our friend works is one of the main firms fighting for that interpretation.
If the guy was operating under a blanket authorization, it probably would not come down to discussing the legality of that. More likely, the driver would claim he had a specific complaint from a homeowner on that street. He would have to give the name to the judge and then someone would check to see if that person would back that up. The judge might put the burden on me to go up there and knock on that person's door and say to them, "Listen, I was parked out front where I know you don't want anyone to park, but would you sign an affidavit that you didn't call the tow truck to remove my car?" Or the judge might have some officer of the court check. Either way, the named homeowner would probably back the tow truck driver and I'd have to go back to court a second time and pin my hopes on the technicality of the sign being wrong.
So it sounds like a tough case to win. One person I spoke to said my best chance would be if the tow truck driver just defaulted and paid the $600, rather than go to court. Considering how much loot he's probably clearing when he's out towing cars, that sounds financially plausible, but I'm also told most tow truck companies do fight such matters. They thrive on the idea that you'll decide it's not worth your trouble to go to court. They like that even if I win, I'm going to go back and tell the other folks who got towed that it was a huge hassle and that it took a lot of my time, so they have to make sure it's a huge hassle that takes a lot of my time. The last time I went to court— back when a speeding motorist ran into my house — I had to get up very early and sit in court most of a day before I learned that the case was being postponed to another day. The wheels of justice don't just grind slowly; sometimes, they turn like the cap on an old tube of Krazy Glue.
One of the gents I talked to said, approximately, "The problem is the deregulation. It allowed hundreds and hundreds of new towing companies to get into the business. The theory was that more competition would drive down the rates but in fact, the rates have all gone up, not down. What has gone down are the ethics of the business and our ability to police them. I cannot go out and arrest them like we used to do. You have to decide you want to go to court, and you have a much harder time of it than you should." Another detective said, "It might not have been so bad if they'd really deregulated…if a judge could fine them ten thousand dollars or lift their licenses. But they kept the part of the regulation that limits the punishment to quadruple damages."
Quadruple damages don't equal a lot of justice. I'll bet not one in ten people who are subjected to this even bother to look into their rights, let alone go to court. One detective said less than one in a hundred take any action at all, and he also confirmed my hunch that the truckers prey primarily on expensive cars in upscale neighborhoods. That increases the chance that (a) someone is going to come up with $125 cash to reclaim their car and (b) the victim is going to decide it's not worth his time to go to court. It sounds to me like the odds are wildly in the towing company's favor: Tow 100 cars @ $125 each. An average of one will drag you to court and you may have to pay $600. Total profit: $11,900.
As you may have guessed by now, I don't think I'm going to be the one in a hundred who goes before His Honor. I have been toying with the notion of using contacts I have with newspapers and magazines to see if I can write up this tale for a larger audience than the one that visits this website. That might do a lot more good, though I may not even do that. It might cut into my new occupation as a crooked tow truck driver.
