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Everyone Says I Hate You

A Santa Clara tow company is suing San Jose, saying its permit system is a sham. But even a constitutional issue of due process is a hard sell to a world that despises being towed.

By Vrinda Normand

THE FINE LINES around Lorrie Augustine's blue eyes and the gray streaks in her brown hair are signs of stress the past two years have brought. Her husband passed away in 2003, and now her business, Tow Service Inc., has dwindled into a small operation in Santa Clara that tows about 600 cars a year. Before her current permit battle with San Jose, Tow Service was one of the largest companies of its kind in the area, towing approximately 6,000 cars a year.

"I kid you not," says Augustine. "You can't tow that many cars and not get complaints."

And Tow Service did get complaints. But it still took Augustine completely by surprise when she received notification on Dec. 4, 2002, that her permit would be revoked unless she attended an administrative hearing on Dec. 18. She received documentation from the city to support the 17 charges against her only two days before the hearing.

Augustine's fate was decided in an informal hearing run by former San Jose Deputy Police Chief Adonna Amoroso, and a city appeals board confirmed Amoroso's decision in April of 2003. Augustine felt both hearings were a sham—who, after all, is going to have any sympathy for the owner of a tow truck company, or even care if she gets due process under the law? Now she's challenging the authority of San Jose to regulate her business, and her case, set to be heard in federal court this summer, could loosen the reins city governments have over two companies nationwide.

Michael McGovern is Augustine's Tennessee-based lawyer. He calls the charges against Augustine "bogus" and the administrative hearing a "kangaroo court."

"The whole process was just atrocious," he adds. "From a standpoint of American justice, it was just unbelievable what went on there."

McGovern used to serve as general counsel for the Towing Recovery Association of America and has represented hundreds of tow companies over the past 20 years. In 2000, he won a landmark case that effectively deregulated the industry when, in Tocher v. City of Santa Ana, a federal appeals court determined that state and local governments may not pass any law affecting the "price, route or service of any motor carrier."

The repercussions of this legal decision reached San Jose, and in April of 2001, the city halted its permit program for tow-car businesses. Then, in the summer of 2002, a Columbus, Ohio, case added a key exemption to the debate: states and cities can regulate tow companies, but only for safety reasons.

Defining "safety" has been the challenge since that turnaround. McGovern argues that cities tend to slap the label on any law they want to enforce, such as the towing ordinances and permits that San Jose reinstated in August 2002. McGovern says San Jose is overstepping its bounds by requiring permits in the first place.

"The city controls who gets the permits and who doesn't, and they aren't very fair in the way they dole them out," he says.

Angry Undertow

Towing is a customer-service job that often involves pissing people off. One Santa Clara tow truck driver, Teresa, says 90 percent of the time she's helping people with lockouts, flat tires, jump-starts or consensual tows for broken down and wrecked vehicles. "But some of them aren't very happy campers," she adds. For nonconsensual tows on private property—the hottest point of contention in the industry—Teresa has to deal with the wrath of drivers who have parked illegally and return to find their vehicle missing or in the process of being hooked up.

"People come screaming and hollering, some cussing at me and threatening me," she says. "I try to deal with it in an adult manner." She calmly explains that she can release the vehicle for a drop fee, half the cost of the tow. If the person refuses to pay, she offers to take the car to the impound yard where the cost will be at least twice as much.

"I've heard a lot of stories," Teresa says. "Grown people lie. Some stand on the back of my truck so I can't drive away. I just sit in my truck and block them out until they calm down."

Most tow truck drivers attempt to steer clear of angry vehicle owners by hooking up cars as quickly as possible. (Teresa preferred not to give her last name because she feared such people might track her down). Confrontations still abound at impound yards, however, and tow company owners say they often have to call the police in order to keep the peace.

Law enforcement officials hear complaints from both sides and fall back on regulatory laws to establish order. In the process, though, they have become entangled in the battles that characterize this controversial industry.

Due Process?

At Augustine's 2002 hearing, she showed up at the city attorney's office with her witnesses: a handful of tow truck drivers, a security guard and a property manager. For the first five days of the hearing, a local attorney represented her, but because of the prohibitive cost, she defended herself for the remaining four.

The city called as witnesses several police officers and citizens who had lodged complaints.

One complaint addressed at the hearing shows how drastically two sides of the same story can differ. At an apartment complex, a man parked in a red zone while he ran upstairs to get his wallet. He says he left his 5-year-old daughter in the car and returned to find a tow truck lifting the vehicle into the air. He then jumped into the car and tried to drive it off the lift.

On the other hand, the tow truck driver says he hooked up to an empty car, and while it was lifted, the owner ran out of his apartment, threw his little girl into the back seat and then hopped in. The driver told the man to get out of the vehicle and reproached him for jeopardizing his daughter's safety. When the man refused, the driver called the police and at the officer's order, dropped the car without a fee.

On a less dramatic note, the city accused Tow Service of taking vehicles with tow slips that were signed but not completely filled out. These slips, Amoroso reasoned, could be used to take cars that were not designated by the property manager, although no complaints of such mistaken tows were reported.

Tow Service also had to answer for allegedly charging excessive fees: $120 for a tow instead of the San Jose police rate of $110. State law says the city or the county can determine maximum rates; Augustine counters that her rates compare with surrounding cities: Mountain View and Palo Alto allow for $140.

Jeff Hunter, executive director of the California Tow Truck Association, says it is unreasonable to expect tow companies to charge 10 different rates for varying cities in an area; he believes a company should be able to use a combined average.

Complaints like the ones brought against Augustine are very common, Hunter says, and for the number of tows that she does every year, he thinks her business has a pretty good record.

"People have violated laws when they parked," he points out. "You would think the city would be more concerned about that."

The Complaint Department

City Attorney Rick Doyle says the length of Augustine's hearing—nine days—was "out of the ordinary" for the amount of time the city spent on the case. Although the evidentiary standard was lower for the purposes of informality, he adds, "That does not mean there was a lack of due process." Stephen Bundy, a law professor from the University of California at Berkeley, says nine days is "a significant investment of public resources to get it right," although the time Augustine was allowed to prepare her defense seems "awfully short."

"We wouldn't be revoking their permit unless there were extreme circumstances," Doyle says. He recounts the anecdote about the little girl (only from the complainant's perspective) and the argument about excessive fees. SJPD permits officer Mark Bennett, according to Doyle, warned Augustine to clean up her act at least five times in two years leading up to the hearing. She allegedly never cooperated.

Augustine says she never received such warnings, although Bennett did call her about a woman who said she had $90 stolen. She told him many people lie about theft because they are angry about their car being towed. In the hearings, Bennett would testify that he stopped calling Augustine about complaints because she always became defensive.

"I was flabbergasted at half of the charges," Augustine says. "Had I known about them, I would have delved into what was going on. No business of our size would want to jeopardize its relationship with the police."

Finding the truth in many of these intangible disputes is a challenging task— one even police investigators haven't seemed to master. SJPD Lt. Todd Martin says he uses his intuition.

"Sometimes you just really never know," he says. Still, he assumes the majority of complaints the department receives about tow companies—currently a couple every month, he says—are "probably valid."

As far as complaints about tow companies go, the SJPD has heard it all: excessive fees, rude conduct by tow truck drivers, damage to vehicles, theft, towing before the time was up on metered spots and, in one case, a driver who staged photos by moving cars into fire lanes so he could tow them with "evidence" that they were illegally parked.

Scandal and Reform

Augustine's case follows in the wake of one homegrown scandal. In 1999, Ray's Towing was booted from San Jose when it was discovered the company had towed legally parked cars from Chuck E. Cheese to a nearby parking lot, charging vehicle owners for both labor and storage.

More recently, a 2003 San Francisco Chronicle investigation revealed that City Tow, San Francisco's largest tow company, had received more than 2,000 complaints in two years, some from citizens alleging their cars had been sold without proper notice. San Francisco is one of the few major Bay Area cities to maintain a towing permit program.

Bill Hemenez, owner of Palace Garage in San Leandro, says he operates all over Alameda County with no required local permits. He gets a motor carrier license from the DMV (as do most tow companies, including Tow Service), which is applicable statewide. Hemenez contends that should be enough.

One San Jose tow company owner, who asked not to be identified for fear of retaliation from his competitors, says Tow Service must have been doing something pretty bad to lose its permit. "You don't go around doing the stuff they were doing and get away with it," he adds, although he wouldn't specify what that might have been.

At the same time, he says citizens are always complaining, no matter what the tow company. He'll look into an issue if he hears one, but "ninety-nine percent of the time, you're catching a lie."

He's not expecting sympathy for Augustine—or the rest of the tow industry—anytime soon.

"Everybody says tow companies are shysters," he says.

Know Your Tow Rights

In case you get your car towed and have to confront that uneasy feeling of being scammed, here are a few things you should know about your legal rights:

— According to state law, a tow truck driver or company must allow you to use a credit card for any payment; if they demand cash, they are liable to pay you back up to four times the cost of towing and storage, but not to exceed $500.

— If you find a tow truck approaching your car, the driver may not charge you a drop fee unless he/she has actually lifted your vehicle. In San Jose, the driver has to be fully connected to your car, including safety chains and lights, in order to charge a fee.

— A drop fee cannot be more than half the cost of the tow (the city or county sets a maximum rate for the tow).

— Tows on private property must be authorized by the property owner or manager, unless the car is parked blocking a fire lane, fire hydrant or handicapped spot (in which case, the driver has to take a photo of the illegally parked vehicle).

— If your car is towed in San Jose and you have a complaint, you can call the San Jose Police Department permits unit at 408.277.4452; an officer may investigate, but you'll have to settle monetary disputes in civil court.

— After your car is towed, the company has one hour to report it to the police department so you do not think it was stolen.

— If you attempt to pick up your towed car during nonbusiness hours, an employee must meet you at the yard within 25 minutes of your call.

— If you see a tow truck approaching your car, you have five minutes to move it to a legal spot before it can be taken.

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From the April 27-May 3, 2005 issue of Metro, Silicon Valley's Weekly Newspaper.

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