713.78 Liens for recovering, towing, or storing vehicles and vessels.—
(1) For the purposes of this section, the term:
(a) “Equivalent commercially available system” means a service that charges a fee to provide vehicle information and that at a minimum maintains records from those states participating in data sharing with the National Motor Vehicle Title Information System.
(b) “Good faith effort” means that all of the following checks have been performed by a towing-storage operator to establish the prior state of registration and title of a vehicle or vessel that has been towed or stored by the towing-storage operator:
1. A check of the department’s database for the owner and any lienholder.
2. A check of the electronic National Motor Vehicle Title Information System or an equivalent commercially available system to determine the state of registration when there is not a current registration record for the vehicle or vessel on file with the department.
3. A check of the vehicle or vessel for any type of tag, tag record, temporary tag, or regular tag.
4. A check of the law enforcement report for a tag number or other information identifying the vehicle or vessel, if the vehicle or vessel was towed at the request of a law enforcement officer.
5. A check of the trip sheet or tow ticket of the tow truck operator to determine whether a tag was on the vehicle or vessel at the beginning of the tow, if a private tow.
6. If there is no address of the owner on the impound report, a check of the law enforcement report to determine whether an out-of-state address is indicated from driver license information.
7. A check of the vehicle or vessel for an inspection sticker or other stickers and decals that may indicate a state of possible registration.
8. A check of the interior of the vehicle or vessel for any papers that may be in the glove box, trunk, or other areas for a state of registration.
9. A check of the vehicle for a vehicle identification number.
10. A check of the vessel for a vessel registration number.
11. A check of the vessel hull for a hull identification number which should be carved, burned, stamped, embossed, or otherwise permanently affixed to the outboard side of the transom or, if there is no transom, to the outmost seaboard side at the end of the hull that bears the rudder or other steering mechanism.
(c) “National Motor Vehicle Title Information System” means the federally authorized electronic National Motor Vehicle Title Information System.
(d) “Newer model” means a vehicle or vessel that is 3 model years old or less, beginning with the model year of the vehicle or vessel as year one.
(e) “Older model” means a vehicle or vessel that is more than 3 model years old, beginning with the model year of the vehicle or vessel as year one.
(f) “Towing-storage operator” means a person who regularly engages in the business of transporting vehicles or vessels by wrecker, tow truck, or car carrier, or the storing of such vehicles or vessels.
(g) “Vehicle” means any mobile item, whether motorized or not, which is mounted on wheels.
(h) “Vessel” means every description of watercraft, barge, and airboat used or capable of being used as a means of transportation on water, other than a seaplane or a “documented vessel” as defined in s. 327.02.
(i) “Wrecker” means any truck or other vehicle that is used to tow, carry, or otherwise transport vehicles or vessels upon the streets and highways of this state and is equipped for that purpose with a boom, winch, car carrier, or other similar equipment.
(2)(a) A towing-storage operator may charge the owner or operator of a vehicle or vessel only the following fees for, or incidental to, the recovery, removal, or storage of the vehicle or vessel:
1. Any reasonable fee for service specifically authorized under s. 125.0103 or s. 166.043 by ordinance, resolution, regulation, or rule of the county or municipality in which the service is performed.
2. Any reasonable fee for service specifically authorized by the Division of Florida Highway Patrol of the Department of Highway Safety and Motor Vehicles under s. 321.051(2).
3. Any reasonable fee for service as agreed upon in writing between a towing-storage operator and the owner of a vehicle or vessel.
4. Any lien release administrative fee as set forth in paragraph (15)(a).
5. Any reasonable administrative fee or charge imposed by a county or municipality pursuant to s. 125.01047, s. 166.04465, or s. 323.002 upon the registered owner or other legally authorized person in control of a vehicle or vessel.
(b) If a towing-storage operator recovers, removes, or stores a vehicle or vessel upon instructions from:
1. The owner thereof;
2. The owner or lessor, or a person authorized by the owner or lessor, of property on which such vehicle or vessel is wrongfully parked, and the removal is done in compliance with s. 715.07;
3. The landlord or a person authorized by the landlord, when such vehicle or vessel remained on the premises after the tenancy terminated and the removal is done in compliance with s. 83.806 or s. 715.104; or
4. Any law enforcement agency, county, or municipality,
she or he has a lien on the vehicle or vessel for fees specified in paragraph (a), except that a storage fee may not be charged if the vehicle or vessel is stored for less than 6 hours.
(c) A towing-storage operator may enter, using reasonable care, a vehicle or vessel for purposes of recovering, removing, or storing such vehicle or vessel. A towing-storage operator is liable for any damage to the vehicle or vessel if such entry is not in accordance with the standard of reasonable care.
(3) This section does not authorize any person to claim a lien on a vehicle for fees or charges connected with the immobilization of such vehicle using a vehicle boot or other similar device pursuant to s. 715.07.
(4)(a) A towing-storage operator who comes into possession of a vehicle or vessel pursuant to paragraph (2)(b), and who claims a lien for recovery, towing, or storage services, must give notice, by certified mail, pursuant to subsection (16), to the registered owner, the insurance company insuring the vehicle or vessel notwithstanding s. 627.736, and all persons claiming a lien thereon, as disclosed by the records in the Department of Highway Safety and Motor Vehicles or as disclosed by the records of any corresponding agency in any other state in which the vehicle or vessel is identified through a records check of the National Motor Vehicle Title Information System or an equivalent commercially available system as being titled or registered.
(b) When a law enforcement agency, county, or municipality authorizes the removal of a vehicle or vessel, or a towing service, garage, repair shop, or automotive service, storage, or parking place notifies a law enforcement agency of possession of a vehicle or vessel pursuant to s. 715.07(2)(a)2., if an approved third-party service cannot obtain the vehicle’s or vessel’s owner, lienholder, and insurer information or last state of record pursuant to subsection (16), then the person in charge of the towing service, garage, repair shop, or automotive service, storage, or parking place must request such information from the law enforcement agency of the jurisdiction where the vehicle or vessel is stored. The law enforcement agency to which the request was made must contact the Department of Highway Safety and Motor Vehicles, or the appropriate agency of the state of registration, if known, within 24 hours through the medium of electronic communications, giving the full description of the vehicle or vessel. Upon receipt of the full description of the vehicle or vessel, the department must search its files to determine the owner’s name, the insurance company insuring the vehicle or vessel, and whether any person has filed a lien upon the vehicle or vessel as provided in s. 319.27(2) and (3) and notify the applicable law enforcement agency within 72 hours. The person in charge of the towing service, garage, repair shop, or automotive service, storage, or parking place must request such information from the applicable law enforcement agency within 5 days after the date of storage and must provide the information to the approved third-party service in order to transmit notices as required under subsection (16). The department may release the insurance company information to the requestor notwithstanding s. 627.736.
(c) The notice of lien must be sent by an approved third-party service by certified mail to the registered owner, the insurance company insuring the vehicle notwithstanding s. 627.736, and all other persons claiming a lien thereon within 5 business days, excluding a Saturday, Sunday, or federal legal holiday, after the date of storage of the vehicle or vessel. The notice must state all of the following:
1. If the claim of lien is for a vehicle, the last 8 digits of the vehicle identification number of the vehicle subject to the lien, or, if the claim of lien is for a vessel, the hull identification number of the vessel subject to the lien, clearly printed in the delivery address box and on the outside of the envelope sent to the registered owner and all other persons claiming an interest in or lien on the vehicle or vessel.
2. The name, physical address, and telephone number of the lienor, and the entity name, as registered with the Division of Corporations, of the business where the towing and storage occurred, which must also appear on the outside of the envelope sent to the registered owner and all other persons claiming an interest in or lien on the vehicle or vessel.
3. The fact of possession of the vehicle or vessel.
4. The name of the person or entity that authorized the lienor to take possession of the vehicle or vessel.
5. That a lien as provided in paragraph (2)(b) is claimed.
6. That charges have accrued and include an itemized statement of the amount thereof.
7. That the lien is subject to enforcement under law and that the owner or lienholder, if any, has the right to initiate judicial proceedings as set forth in subsection (5).
8. That any vehicle or vessel that remains unclaimed, or for which the charges for recovery, towing, or storage services remain unpaid, may be sold free of all prior liens 35 days after the vehicle or vessel is stored by the lienor if the vehicle or vessel is an older model or 57 days after the vehicle or vessel is stored by the lienor if the vehicle or vessel is a newer model.
9. The address at which the vehicle or vessel is physically located.
(d) The notice of lien may not be sent to the registered owner, the insurance company insuring the vehicle or vessel, and all other persons claiming a lien thereon less than 30 days before the sale of a vehicle or vessel that is an older model or less than 52 days before the sale of a vehicle or vessel that is a newer model.
(e) If attempts to locate the name and address of the registered owner, the insurance company insuring the vehicle or vessel, and any other person claiming a lien thereon are unsuccessful, 5 business days, excluding a Saturday, Sunday, or federal legal holiday, after the initial tow or storage, the towing-storage operator must notify the public agency of jurisdiction where the vehicle or vessel is stored in writing by certified mail or receipt-acknowledged electronic delivery that the towing-storage operator has been unable to locate the name and address of the owner or lienholder and a physical search of the vehicle or vessel has disclosed no ownership information and a good faith effort has been made, including records checks of the Department of Highway Safety and Motor Vehicles database and the National Motor Vehicle Title Information System or an equivalent commercially available system.
(5)(a) The registered owner of a vehicle or vessel in the possession of a towing-storage operator, the insurance company insuring such vehicle or vessel, and any other person claiming a lien thereon, other than the towing-storage operator, may initiate judicial proceedings in the court of competent jurisdiction in the county in which the vehicle or vessel is stored to determine whether the vehicle or vessel was wrongfully taken or withheld or whether fees were wrongfully charged.
(b) Regardless of whether judicial proceedings have been initiated pursuant to paragraph (a), at any time before the sale of the vehicle or vessel by the towing-storage operator, the owner of the vehicle or vessel, the insurance company insuring the vehicle or vessel, and any other person claiming a lien thereon, other than the towing-storage operator, may have the vehicle or vessel released upon posting with the clerk of the court in the county in which the vehicle or vessel is held a cash or surety bond or other adequate security equal to the amount of the accrued charges set forth in the notice of lien, plus accrued storage charges, at the time of the release of the vehicle or vessel, if any, to ensure the payment of such charges in the event a court determines that the vehicle or vessel was not wrongfully taken or withheld or fees were not wrongfully charged. The owner of the vehicle or vessel, the insurance company insuring the vehicle or vessel, and any other person claiming a lien thereon, other than the towing-storage operator, may not be required to initiate judicial proceedings in order to post the bond in the registry of the court and are not required to use a particular form for posting the bond unless the clerk provides such form. Upon the posting of the bond and the payment of the applicable fee set forth in s. 28.24, the clerk of the court must automatically issue a certificate notifying the towing-storage operator of the posting of the bond and directing the towing-storage operator to release the vehicle or vessel to the party that posted the bond. At the time of such release, after reasonable inspection, the party that posted the bond must give a receipt to the towing-storage operator reciting any claims for loss or damage to the vehicle or vessel or the contents thereof, or such claims are deemed waived.
1. Upon receiving a copy of a certificate giving notice of the posting of a bond in the required amount and directing the release of the vehicle or vessel, a towing-storage operator must release or return the vehicle or vessel to the party that posted the bond.
2. If the party posting the bond does not initiate judicial proceedings pursuant to paragraph (a) within 45 days after the issuance of the certificate by the clerk of the court, then upon request by the towing-storage operator, the clerk of the court must:
a. Release the cash to the towing-storage operator; or
b. Issue a notice certifying that a judicial proceeding has not been initiated within 45 days after the issuance of the certificate and requiring the surety that issued the bond to promptly pay the full face value of the bond to the towing-storage operator. The towing-storage operator has the obligation, upon receipt of the clerk’s notice, to timely notify the surety of such notice. A notice issued by the clerk under this sub-subparagraph expires 120 days after its issuance if the notice is not delivered to the surety.
(c) Upon determining the respective rights of the parties, the court may award damages, attorney fees, and costs in favor of the prevailing party. In the event the defendant prevails, the final order must provide for immediate payment in full of recovery, towing, and storage fees by the vehicle or vessel owner or lienholder; or the agency ordering the tow; or the owner, lessee, or agent thereof of the property from which the vehicle or vessel was removed.
(6) A vehicle or vessel that is stored pursuant to paragraph (2)(b) and remains unclaimed, or for which reasonable charges for recovery, towing, or storing remain unpaid, and any contents not released pursuant to subsection (10), may be sold by the owner or operator of the storage space for such towing or storage charge 35 days after the vehicle or vessel is stored by the lienor if the vehicle or vessel is an older model or 57 days after the vehicle or vessel is stored by the lienor if the vehicle or vessel is a newer model. The sale must be at public sale for cash. If the date of the sale was not included in the notice required in subsection (4), notice of the sale must be given to the person in whose name the vehicle or vessel is registered and to all persons claiming a lien on the vehicle or vessel as shown on the records of the Department of Highway Safety and Motor Vehicles or of any corresponding agency in any other state in which the vehicle is identified through a records check of the National Motor Vehicle Title Information System or an equivalent commercially available system as being titled. Notice of the sale must be sent by certified mail to the registered owner of the vehicle or vessel, the insurance company insuring the vehicle or vessel, and the person having the recorded lien on the vehicle or vessel at the address shown on the records of the registering agency at least 30 days before the sale of the vehicle or vessel. The last 8 digits of the vehicle identification number of the vehicle subject to the lien, or, if the claim of lien is for a vessel, the hull identification number of the vessel subject to the lien, must be clearly identified and printed in the delivery address box and on the outside of the envelope sent to the registered owner, the insurance company insuring the vehicle or vessel, and all other persons claiming an interest in or lien on the vehicle or vessel. The notice must state the name, physical address, and telephone number of the lienor, and the vehicle identification number if the claim of lien is for a vehicle or the hull identification number if the claim of lien is for a vessel, all of which must also appear in the return address section on the outside of the envelope containing the notice of sale. After diligent search and inquiry, if the name and address of the registered owner or the owner of the recorded lien cannot be ascertained, the requirements of notice by mail may be dispensed with. In addition to the notice by mail, public notice of the time and place of sale must be made by publishing a notice thereof one time, at least 20 days before the date of the sale, on the publicly available website maintained by an approved third-party service. The third-party service must electronically report to the Department of Highway Safety and Motor Vehicles, via an electronic data exchange process using a web interface, the name, physical address, and telephone number of the lienor; the time and place of the sale; the vehicle’s license plate number, if known; the vehicle identification number, if the claim of lien is for a vehicle, or the hull identification number, if the claim of lien is for a vessel; and the amount due for towing, recovery, storage, and administrative fees. The third-party service that publishes the public notice of sale and electronically reports the required information to the department may collect and retain a service charge of no more than $1. The proceeds of the sale, after payment of reasonable towing and storage charges, and costs of the sale, in that order of priority, must be deposited with the clerk of the circuit court for the county if the owner or lienholder is absent, and the clerk must hold such proceeds subject to the claim of the owner or lienholder legally entitled thereto. The clerk is entitled to receive 5 percent of such proceeds for the care and disbursement thereof. The certificate of title issued under this section must be discharged of all liens unless otherwise provided by court order. The owner or lienholder may file a complaint after the vehicle or vessel has been sold in the court of the county in which it is stored. Upon determining the respective rights of the parties, the court may award damages, attorney fees, and costs in favor of the prevailing party.
(7)(a) A wrecker operator recovering, towing, or storing vehicles or vessels is not liable for damages connected with such services, theft of such vehicles or vessels, or theft of personal property contained in such vehicles or vessels, provided that such services have been performed with reasonable care and provided, further, that, in the case of removal of a vehicle or vessel upon the request of a person purporting, and reasonably appearing, to be the owner or lessee, or a person authorized by the owner or lessee, of the property from which such vehicle or vessel is removed, such removal has been done in compliance with s. 715.07. Further, a wrecker operator is not liable for damage to a vehicle, vessel, or cargo that obstructs the normal movement of traffic or creates a hazard to traffic and is removed in compliance with the request of a law enforcement officer.
(b) For the purposes of this subsection, a wrecker operator is presumed to use reasonable care to prevent the theft of a vehicle or vessel or of any personal property contained in such vehicle stored in the wrecker operator’s storage facility if all of the following apply:
1. The wrecker operator surrounds the storage facility with a chain-link or solid-wall type fence at least 6 feet in height;
2. The wrecker operator has illuminated the storage facility with lighting of sufficient intensity to reveal persons and vehicles at a distance of at least 150 feet during nighttime; and
3. The wrecker operator uses one or more of the following security methods to discourage theft of vehicles or vessels or of any personal property contained in such vehicles or vessels stored in the wrecker operator’s storage facility:
a. A night dispatcher or watchman remains on duty at the storage facility from sunset to sunrise;
b. A security dog remains at the storage facility from sunset to sunrise;
c. Security cameras or other similar surveillance devices monitor the storage facility; or
d. A security guard service examines the storage facility at least once each hour from sunset to sunrise.
(c) Any law enforcement agency requesting that a motor vehicle be removed from an accident scene, street, or highway must conduct an inventory and prepare a written record of all personal property found in the vehicle before the vehicle is removed by a wrecker operator. However, if the owner or driver of the motor vehicle is present and accompanies the vehicle, no inventory by law enforcement is required. A wrecker operator is not liable for the loss of personal property alleged to be contained in such a vehicle when such personal property was not identified on the inventory record prepared by the law enforcement agency requesting the removal of the vehicle.
(8) A towing-storage operator, except a person licensed under chapter 493 while engaged in “repossession” activities as defined in s. 493.6101, may not operate a wrecker, tow truck, or car carrier unless the name, address, and telephone number of the company performing the service is clearly printed in contrasting colors on the driver and passenger sides of its vehicle. The name must be in at least 3-inch permanently affixed letters, and the address and telephone number must be in at least 1-inch permanently affixed letters.
(9) Failure to make good faith efforts to comply with the notice requirements of this section precludes the imposition of any storage charges against the vehicle or vessel. If a lienor fails to provide notice to a person claiming a lien on a vehicle or vessel in accordance with subsection (4), the lienor may not charge the person for more than 5 days of storage, but such failure does not affect charges made for towing the vehicle or vessel or the priority of liens on the vehicle or vessel.
(10) A towing-storage operator must permit vehicle or vessel owners, lienholders, insurance company representatives, or their agents, whose interest in the vehicle or vessel is evidenced by any of the documents listed in subsection (17), to inspect the towed vehicle or vessel and must release to the owner, lienholder, or agent the vehicle, vessel, or all personal property not affixed to the vehicle or vessel which was in the vehicle or vessel at the time the vehicle or vessel came into the custody of the towing-storage operator. The inspection and release of the vehicle, vessel, or personal property must be permitted within 1 hour after the owner, lienholder, insurance company representative, or their agent presents any of the documents listed in subsection (17) to the towing-storage operator during normal business hours at the site where the vehicle or vessel is stored. Notwithstanding subparagraph (17)(a)6., a rental vehicle or vessel agreement is not evidence that the person who rented a vehicle or vessel is an agent of the rental vehicle or vessel owner for the purpose of releasing the vehicle or vessel. However, a towing-storage operator must release to the renter of a rental vehicle or vessel all personal property belonging to the renter which is not affixed to the rental vehicle or vessel within 1 hour after the renter’s arrival.
(11)(a) A towing-storage operator who comes into possession of a vehicle or vessel pursuant to paragraph (2)(b) and who has complied with subsections (4) and (6), when such vehicle or vessel is to be sold for purposes of being dismantled, destroyed, or changed in such manner that it is not the vehicle or vessel described in the certificate of title, must report the vehicle to the National Motor Vehicle Title Information System and apply to the Department of Highway Safety and Motor Vehicles for a certificate of destruction. A certificate of destruction, which authorizes the dismantling or destruction of the vehicle or vessel described therein, is reassignable a maximum of two times before dismantling or destruction of the vehicle is required, and must accompany the vehicle or vessel for which it is issued, when such vehicle or vessel is sold for such purposes, in lieu of a certificate of title. The application for a certificate of destruction must include proof of reporting to the National Motor Vehicle Title Information System and an affidavit from the applicant that she or he has complied with all applicable requirements of this section and, if the vehicle or vessel is not registered in this state or any other state, by a statement from a law enforcement officer that the vehicle or vessel is not reported stolen, and must be accompanied by such documentation as may be required by the department.
(b) The Department of Highway Safety and Motor Vehicles shall charge a fee of $3 for each certificate of destruction. A service charge of $4.25 shall be collected and retained by the tax collector who processes the application.
(12)(a) Any person who violates subsection (2), subsection (4), subsection (5), subsection (6), or subsection (7) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any person who violates the provisions of subsections (8) through (11) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) Any person who uses a false or fictitious name, gives a false or fictitious address, or makes any false statement in any application or affidavit required under the provisions of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(d) Employees of the Department of Highway Safety and Motor Vehicles and law enforcement officers are authorized to inspect the records of a towing-storage operator to ensure compliance with the requirements of this section. A towing-storage operator who fails to maintain records, or fails to produce records when required in a reasonable manner and at a reasonable time, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(13)(a) Upon receipt by the Department of Highway Safety and Motor Vehicles of written notice from a wrecker operator who claims a wrecker operator’s lien under subparagraph (2)(b)4. for recovery, towing, or storage of an abandoned vehicle or vessel upon instructions from any law enforcement agency, for which a certificate of destruction has been issued under subsection (11) and the vehicle has been reported to the National Motor Vehicle Title Information System, the department shall place the name of the registered owner of that vehicle or vessel on the list of those persons who may not be issued a license plate or revalidation sticker for any motor vehicle under s. 320.03(8). If the vehicle or vessel is owned jointly by more than one person, the name of each registered owner must be placed on the list. The notice of wrecker operator’s lien must be submitted on forms provided by the department and include all of the following:
1. The name, address, and telephone number of the wrecker operator.
2. The name of the registered owner of the vehicle or vessel and the address to which the wrecker operator provided notice of the lien to the registered owner under subsection (4).
3. A general description of the vehicle or vessel, including its color, make, model, body style, and year.
4. The vehicle identification number (VIN); registration license plate number, state, and year; validation decal number, state, and year; vessel registration number; hull identification number; or other identification number, as applicable.
5. The name of the person or the corresponding law enforcement agency that requested that the vehicle or vessel be recovered, towed, or stored.
6. The amount of the wrecker operator’s lien, not to exceed the amount allowed by paragraph (b).
(b) For purposes of this subsection only, the amount of the wrecker operator’s lien for which the department will prevent issuance of a license plate or revalidation sticker may not exceed the amount of the charges for recovery, towing, and storage of the vehicle or vessel for 7 days. These charges may not exceed the maximum rates imposed by the ordinances of the respective county or municipality under ss. 125.0103(1)(c) and 166.043(1)(c). This paragraph does not limit the amount of a wrecker operator’s lien claimed under paragraph (2)(b) or prevent a wrecker operator from seeking civil remedies for enforcement of the entire amount of the lien, but limits only that portion of the lien for which the department will prevent issuance of a license plate or revalidation sticker.
(c)1. The registered owner of a vehicle or vessel may dispute a wrecker operator’s lien, by notifying the department of the dispute in writing on forms provided by the department, if at least one of the following applies:
a. The registered owner presents a notarized bill of sale proving that the vehicle or vessel was sold in a private or casual sale before the vehicle or vessel was recovered, towed, or stored.
b. The registered owner presents proof that the Florida certificate of title of the vehicle or vessel was sold to a licensed dealer as defined in s. 319.001 before the vehicle or vessel was recovered, towed, or stored.
c. The records of the department were marked “sold” prior to the date of the tow.
If the registered owner’s dispute of a wrecker operator’s lien complies with one of these criteria, the department shall immediately remove the registered owner’s name from the list of those persons who may not be issued a license plate or revalidation sticker for any motor vehicle under s. 320.03(8), thereby allowing issuance of a license plate or revalidation sticker. If the vehicle or vessel is owned jointly by more than one person, each registered owner must dispute the wrecker operator’s lien in order to be removed from the list. However, the department shall deny any dispute and maintain the registered owner’s name on the list of those persons who may not be issued a license plate or revalidation sticker for any motor vehicle under s. 320.03(8) if the wrecker operator has provided the department with a certified copy of the judgment of a court which orders the registered owner to pay the wrecker operator’s lien claimed under this section. In such a case, the amount of the wrecker operator’s lien allowed by paragraph (b) may be increased to include no more than $500 of the reasonable costs and attorney’s fees incurred in obtaining the judgment. The department’s action under this subparagraph is ministerial in nature, shall not be considered final agency action, and is appealable only to the county court for the county in which the vehicle or vessel was ordered removed.
2. A person against whom a wrecker operator’s lien has been imposed may alternatively obtain a discharge of the lien by filing a complaint, challenging the validity of the lien or the amount thereof, in the county court of the county in which the vehicle or vessel was ordered removed. Upon filing of the complaint, the person may have her or his name removed from the list of those persons who may not be issued a license plate or revalidation sticker for any motor vehicle under s. 320.03(8), thereby allowing issuance of a license plate or revalidation sticker, upon posting with the court a cash or surety bond or other adequate security equal to the amount of the wrecker operator’s lien to ensure the payment of such lien in the event she or he does not prevail. Upon the posting of the bond and the payment of the applicable fee set forth in s. 28.24, the clerk of the court shall issue a certificate notifying the department of the posting of the bond and directing the department to release the wrecker operator’s lien. Upon determining the respective rights of the parties, the court may award damages and costs in favor of the prevailing party.
3. If a person against whom a wrecker operator’s lien has been imposed does not object to the lien, but cannot discharge the lien by payment because the wrecker operator has moved or gone out of business, the person may have her or his name removed from the list of those persons who may not be issued a license plate or revalidation sticker for any motor vehicle under s. 320.03(8), thereby allowing issuance of a license plate or revalidation sticker, upon posting with the clerk of court in the county in which the vehicle or vessel was ordered removed, a cash or surety bond or other adequate security equal to the amount of the wrecker operator’s lien. Upon the posting of the bond and the payment of the application fee set forth in s. 28.24, the clerk of the court shall issue a certificate notifying the department of the posting of the bond and directing the department to release the wrecker operator’s lien. The department shall mail to the wrecker operator, at the address upon the lien form, notice that the wrecker operator must claim the security within 60 days, or the security will be released back to the person who posted it. At the conclusion of the 60 days, the department shall direct the clerk as to which party is entitled to payment of the security, less applicable clerk’s fees.
4. A wrecker operator’s lien expires 5 years after filing.
(d) Upon discharge of the amount of the wrecker operator’s lien allowed by paragraph (b), the wrecker operator must issue a certificate of discharged wrecker operator’s lien on forms provided by the department to each registered owner of the vehicle or vessel attesting that the amount of the wrecker operator’s lien allowed by paragraph (b) has been discharged. Upon presentation of the certificate of discharged wrecker operator’s lien by the registered owner, the department must immediately remove the registered owner’s name from the list of those persons who may not be issued a license plate or revalidation sticker for any motor vehicle under s. 320.03(8), thereby allowing issuance of a license plate or revalidation sticker. Issuance of a certificate of discharged wrecker operator’s lien under this paragraph does not discharge the entire amount of the wrecker operator’s lien claimed under paragraph (2)(b), but only certifies to the department that the amount of the wrecker operator’s lien allowed by paragraph (b), for which the department will prevent issuance of a license plate or revalidation sticker, has been discharged.
(e) When a wrecker operator files a notice of wrecker operator’s lien under this subsection, the department shall charge the wrecker operator a fee of $2, which shall be deposited into the General Revenue Fund. A service charge of $2.50 shall be collected and retained by the tax collector who processes a notice of wrecker operator’s lien.
(f) This subsection applies only to the annual renewal in the registered owner’s birth month of a motor vehicle registration and does not apply to the transfer of a registration of a motor vehicle sold by a motor vehicle dealer licensed under chapter 320, except for the transfer of registrations which includes the annual renewals. This subsection does not apply to any vehicle registered in the name of the lessor. This subsection does not affect the issuance of the title to a motor vehicle, notwithstanding s. 319.23(8)(b).
(14)(a) A copy of the notice of lien required by subsection (4) and the notice of sale required by subsection (6), which must include the vehicle identification number if the claim of lien is for a vehicle or the hull identification number if the claim of lien is for a vessel, and proof of the required check of the National Motor Vehicle Title Information System or an equivalent commercially available system shall constitute satisfactory proof for application to the Department of Highway Safety and Motor Vehicles for transfer of title, together with any other proof required by any rules and regulations of the department.
(b) The Department of Highway Safety and Motor Vehicles may not approve an application for transfer of title if the application fails to include a copy of the notice of lien required by subsection (4) and the notice of sale required by subsection (6). The vehicle or hull identification number on the notice of lien must match the vehicle or hull identification number of the vehicle or vessel that is the subject of the transfer of title.
(15)(a) A lienor or the lienor’s agent may charge an administrative fee to the registered owner or a person claiming a lien against the vehicle or vessel to obtain release of the vehicle or vessel from the claim of lien imposed under this section. Such administrative fee may not exceed $250. For purposes of this paragraph, the term “administrative fee” means a lien fee or any fee imposed by the lienor or the lienor’s agent for administrative costs added to the amount due for towing and storing the vehicle or vessel.
(b) A lienor or the lienor’s agent may not charge fees or costs, other than those authorized in this section or ss. 125.0103 and 166.043, that exceed $250.
(16) A towing-storage operator must use a third-party service approved by the Department of Highway Safety and Motor Vehicles to transmit all notices required by this section. If there is no third-party service approved by the department, the towing-storage operator may mail the notices and provide evidence of compliance with this section upon submission of an application for certificate of title or certificate of destruction.
(a) For purposes of this subsection, the term “third-party service” means a qualified business entity that, upon a request submitted through a website by a towing-storage operator:
1. Accesses the National Motor Vehicle Title Information System records to obtain the last state of record of the vehicle.
2. Accesses the owner, lienholder, and insurer information, as applicable, for a vehicle or vessel from the department.
3. Electronically generates the notices required of a towing-storage operator by this section through the website.
4. Prints and sends the notices required under this section to each owner, lienholder, and insurer of record by certified mail.
5. Electronically returns tracking information or other proof of mailing and delivery of the notices to the towing-storage operator.
6. Electronically reports to the department, via an electronic data exchange process using a web interface, the following information related to the towing and storage notice:
a. The vehicle identification number or vessel hull identification number.
b. The license plate number.
c. The name and address of the towing-storage operator or lienor.
d. The physical location of the vehicle or vessel.
e. The date on which the vehicle or vessel was towed.
f. The amount of storage fees owed at the time of the notice.
g. The date of assessment of storage charges.
h. The dates on which the notice was mailed and delivered.
i. Other information required by the department.
(b) A third-party service must apply to and be approved by the department in order to provide notices under this section. The department shall prescribe the format for the application. The department may approve the applicant as qualified to perform the services provided in paragraph (a) if the applicant:
1. Provides the department with a $1 million bond.
2. Submits an acceptable internal control and data security audit (Level 2) or its equivalent performed by a licensed certified public accountant.
3. Successfully demonstrates the ability to electronically provide required data to the department via an electronic data exchange process using a web interface.
(c) The department may deny, suspend, or revoke approval of a third-party service if the department determines that the third-party service has committed an act of fraud or misrepresentation related to a notice required by this section.
(d) A third-party service must maintain all records related to providing notices under this section for 5 years and allow the department to inspect and copy such records upon request. The records may be maintained in an electronic format.
(e) A third-party service must annually provide the department with evidence that it maintains a $1 million bond and must annually submit an internal control and data security audit (Level 2) or its equivalent performed by a licensed certified public accountant to continue its approved status each year.
(f) A third-party service must maintain a publicly available website that allows owners, registrants, lienholders, insurance companies, or their agents to search for notices sent pursuant to this section. The search results must exclude personal identifying information but provide the same information provided to the department.
(17)(a) A towing-storage operator must accept an original or a copy of any of the following documents as evidence of a person’s interest in a vehicle or vessel:
1. An electronic title.
2. A paper title.
3. A contract between a lender and the owner of the vehicle or vessel.
4. A contract between a lessor and the lessee of the vehicle or vessel.
5. Credentials establishing the person as an employee or contract agent of an insurance company along with documentation identifying the vehicle by the vehicle identification number or vessel by the hull identification number.
6. A written agreement evidencing that the person is an agent of the vehicle or vessel owner or lienholder.
(b) A towing-storage operator may not require any of the documents listed in paragraph (a) to be notarized, except for the agreement in subparagraph (a)6. if such agreement is presented for the purpose of releasing the vehicle or vessel.
(c) Presenting one form of current government-issued photo identification constitutes sufficient identity verification for the purposes of this section.
(18) A towing-storage operator must retain for 3 years records produced for all vehicles or vessels recovered, towed, stored, or released. Such records must include at least all of the following:
(a) All notice publications and certified mailings.
(b) The purchase price of any unclaimed vehicle or vessel sold.
(c) The names and addresses of persons to which vehicles or vessels were released.
(d) The names and addresses of vehicle or vessel purchasers.
(e) All fees imposed under this section, including the itemized invoice required under paragraph (20)(c).
(19)(a) A towing-storage operator must accept payment for accrued charges from an authorized person listed in subsection (10) in any form from at least two of the following subparagraphs:
1. Cash, cashier’s check, money order, or traveler’s check.
2. Bank, debit, or credit card.
3. Mobile payment service, digital wallet, or other electronic payment system.
(b) Any of the authorized persons listed in subsection (10) are not required to furnish more than one form of current government-issued photo identification when payment is made in any of the forms listed in paragraph (a).
(c) A county or municipal charter, ordinance, resolution, regulation, or rule that conflicts with paragraph (a) is expressly preempted.
(20)(a) A towing-storage operator must maintain a rate sheet listing all fees for, or incidental to, the recovery, removal, or storage of a vehicle or vessel and must do all of the following:
1. Post the rate sheet at the towing-storage operator’s place of business.
2. Make the rate sheet available upon request by the vehicle or vessel owner, lienholder, insurance company, or their agent.
3. Before attaching a vehicle or vessel to a wrecker, furnish the rate sheet to the owner or operator of the vehicle or vessel, if the owner or operator is present at the scene of the disabled vehicle or vessel.
(b) Any fee charged in excess of those listed on the rate sheet required under this subsection is deemed unreasonable.
(c) An itemized invoice of actual fees charged by a towing-storage operator for a completed tow must be produced and be available to the vehicle or vessel owner, lienholder, insurance company, or their agent no later than 1 business day after:
1. The tow is completed; or
2. The towing-storage operator has obtained all necessary information to be included on the invoice, including any charges submitted by subcontractors used by the towing-storage operator to complete the tow and recovery.
(d) The itemized invoice required under paragraph (c) must contain all of the following information:
1. The date and time the vehicle or vessel was towed.
2. The location to which the vehicle or vessel was towed.
3. The name, address, and telephone number of the towing-storage operator.
4. A description of the towed vehicle or vessel, including the color, make, model, model year, and vehicle identification number of the vehicle or hull identification number of the vessel.
5. The license plate number and state of registration for the towed vehicle or vessel.
6. The cost of the initial towing service.
7. The cost of any storage fees, expressed as a daily rate.
8. Other fees, including administrative fees, vehicle or vessel search fees, fees for hazardous material and nonhazardous material cleanup, and fees for labor.
9. A list of the services that were performed under a warranty or that were otherwise performed at no cost to the owner of the vehicle or vessel.
(e) Any service performed or fee charged in addition to those described in subparagraph (d)6. or subparagraph (d)7. must be set forth on the itemized invoice required under paragraph (c) individually as a single line item that includes an explanation of the service or fee and the exact amount charged for the service or the exact amount of the fee.
(f) A towing-storage operator must make the itemized invoice required under paragraph (c) available for inspection and copying no later than 48 hours after receiving a written request to inspect such invoice from:
1. A law enforcement agency;
2. The Attorney General; or
3. The vehicle or vessel owner, lienholder, insurance company, or their agent.
...request a hearing to contest the propriety of the impoundment and the imposition of fees." Id. Defendant argues that count I of the complaint must be dismissed because Defendant provided Plaintiff with a post-tow procedure contained in Fla. Stat. 713.78 to challenge the propriety of the impoundment of her car and the imposition of fees. [1] See Motion at 3. Therefore, *1365 the issue before this Court is whether, under the facts of this case, Plaintiff's procedural due process rights were violated despite the fact that Fla. Stat. 713.78 allowed her to challenge the appropriateness of (1) Defendant's tow and impoundment of her recovered stolen car and (2) Defendant's imposition of the fees that Plaintiff paid to secure the release of her vehicle....
...at 4 (emphasis in original). Moreover, the private interest is further minimized by the fact that Plaintiff could have recovered damages and costs had she challenged, with success, Defendant's tow and impoundment of her car, and the imposition of fees. See Fla. Stat. § 713.78(5)(c) ("Upon determining the respective rights of the parties, the court may award damages and costs in favor of the prevailing party."); see also David, 123 S.Ct....
...1194 (1950) (stating that the Declaratory Judgment Act does not in itself confer jurisdiction upon federal courts); Woods v. City and County of Denver, 62 Fed.Appx. 286, 289 (10th Cir. 2003) ("[T]he Declaratory Judgment Act *1368 does not extend the jurisdiction of federal courts."). NOTES [1] Fla. Stat. § 713.78 provides in relevant part: (4)(a) Any person regularly engaged in the business of recovering, towing, or storing vehicles or vessels who comes into possession of a vehicle or vessel pursuant to subsection (2), and who claims a lien for reco...
...ng). [4] As an initial matter, Plaintiff's assertion that a determination as to the appropriateness of the deprivation in her case would take at least sixty days is purely speculative because she did not avail herself to the procedures of Fla. Stat. § 713.78....
...Additionally, Plaintiffs contend that the retroactive application of City Ordinance No. 12285 violates due process (Count IV). Finally, Plaintiffs assert that the collection of an administrative charge is outside the scope of Florida's towing lien statute, Fla. Stat. § 713.78 (Count V)....
...e constitutionality of retroactive tax legislation is inapplicable. *1349 D. Administrative Charge Does Not Violate Florida's Towing Lien Statute In Count V of their Amended Complaint, Plaintiffs allege that Florida's towing lien statute, Fla. Stat. § 713.78(2), does not authorize wrecker operators to impose a lien for municipal administrative charges, and that the City has instructed its contracted wrecker operators not to release any vehicles with outstanding charges due....
...The Groves then obtained a writ of possession on April 13, 1995, commanding the sheriff to "remove all persons and property from the ... (mobile home lot)." The sheriff removed McKnight from the premises but his mobile home remained. The Groves then proceeded to follow the statutory summary procedure of section 713.78, Florida Statutes (1993), by advertising to sell McKnight's mobile home for unpaid rent....
...McKnight then asked the circuit court to enjoin The Groves from conducting the sale because the mobile home was exempt as homestead property pursuant to section 222.05, Florida Statutes (1993). The trial court arrived at the correct result by granting the injunction but for an incorrect reason. Section 713.78(2) entitles a person regularly engaged in the business of transporting vehicles by wrecker, tow truck, or car carrier, to a lien for towing and storage fees. The lien may be enforced by retention of possession and eventual public auction if the requirements of section 713.78 are met. The problem with The Groves' attempt to invoke the statute is that it is not regularly engaged in the business of transporting vehicles. Therefore, it does not qualify to use the summary procedure prescribed by section 713.78(5) to enforce its lien for rent....
...Upon remand, the trial court may consider evidence of any attempt to defeat McKnight's homestead exemption by preventing him from removing his mobile home while he was in lawful possession of the rental space. The order temporarily enjoining The Groves from conducting a sale pursuant to section 713.78, Florida Statutes (1993) is affirmed because the record does not reflect that The Groves qualifies as an entity entitled to use the sale procedure set forth in section 713.78(5)....
...er lawfully possessed piece of real estate pursuant to section 723.062. The date of judgment of eviction should not be the cut-off point for the mobile home's homestead status. THOMPSON, Judge, concurring in part and dissenting in part. I agree that section 713.78(2) is inapplicable....
...ion 713.58, Florida Statutes (1989), against a 1985 Subaru DL station wagon delivered by its owner to appellant for repairs, but which restricted appellant to recovery of fourteen days’ storage charges based on the fourteen-day notice provision in section 713.78, Florida *362 Statutes. Contrary to the trial judge, we conclude that section 713.78 has no application to this transaction. Appellant is entitled to an adjudication of reasonable storage charges pursuant to section 713.58 without regard to the requirements of section 713.78....
...harges: $100
towing fee, $35 administrative fee, $300 lien filing fee, and $288.20
in storage fees, which would continue to accumulate at $21.30 per
day. Among other disclosures, the notice stated that the lien was
subject to enforcement pursuant to section 713.78, Florida
Statutes (2013), and that the Jeep would be sold at a public sale
on April 21, 2014, at 10:00 a.m....
...He sought damages for conversion and slander of title,
and in the alternative, foreclosure of his lien for towing and storage
charges.
State Farm moved for summary judgment, arguing that the
public sale of the Jeep was not valid because Dowell failed to
comply with section 713.78, Florida Statutes, the statute on which
Dowell’s claim of lien and ownership of the vehicle is based....
...t. The
trial court granted State Farm’s motion for summary judgment
because Dowell’s claims depended on his ownership of the Jeep
and, in the absence of a valid public sale, Dowell could not prevail.
Analysis
Section 713.78 governs liens for recovering, towing, or storing
vehicles or vessels. The statute grants a towing-storage operator,
such as Dowell, a lien on a vehicle for reasonable towing and
storage charges incurred at the request of law enforcement. §
713.78(2)(d), Fla....
...Relevant here,
subsection (4) provides that a person “who claims a lien for
recovery, towing, or storage services” must give notice to the
registered owner of the vehicle, the insurance company insuring
the vehicle, and to all persons claiming a lien against the vehicle.
§ 713.78(4)(a), Fla. Stat. The notice must be sent to these potential
stakeholders “within 7 business days after the date of storage of the
vehicle[.]” § 713.78(4)(c), Fla....
...The statute further provides that “[i]f the
date of the sale was not included in the notice required in
subsection (4),” the towing-storage operator must provide notice of
the sale to the registered owner and lienholders by certified mail
at least 15 days before the date of the sale. § 713.78(6), Fla....
...tion (9) of the
statute, which provides as follows:
Failure to make good faith best efforts to comply with the
notice requirements of this section shall preclude the
imposition of any storage charges against such vehicle or
vessel.
§ 713.78(9), Fla....
...g-
storage operator can enforce the lien—and in this case, will enforce
the lien—by selling the vehicle if the charges remain unpaid after
1 There were no vehicle lienholders in this case.
4
35 days. 2 § 713.78(4)(c), Fla. Stat. Additionally, because the notice
here set the date, time, and location of the sale, this was the only
notice of sale required to be sent directly to the vehicle owner. See
§ 713.78(6), Fla....
...sum of $15,000, exclusive of interest, costs, and attorney’s fees . . . .” §
34.01(1)(c), Florida Statutes (2017).
CarMax agrees that the final judgment exceeds $15,000 but argues
the county court nevertheless had subject matter jurisdiction over this case
because section 713.78, Florida Statutes (2017), explicitly provides that
towing actions be filed in county court....
...4th DCA 2017) (“The
Florida Supreme Court has held that liens which are ‘purely creatures of
statute’ can only be acquired, created, or attached to property if the statutes
from which they derive are strictly followed.”).
The plain language of section 713.78 does provide that “[t]he owner of
a vehicle or vessel . . . may file a complaint in the county court of the county
in which the vehicle or vessel is stored to determine whether her or his
property was wrongfully taken or withheld.” § 713.78(5)(a), Fla. Stat. (2017)
5
(emphasis added); see also § 713.78(6)), Fla. Stat. (2017) (“The owner or
lienholder may file a complaint after the vehicle or vessel has been sold in
the county court of the county in which it is stored.”) (emphasis added). We
note, however, that section 713.78 merely states that an owner “may” file a
complaint in the county court....
...3d DCA 2022) (noting
case filed in county court is only properly filed in county court “as long as the
amount in controversy requirement is met”).
Thus, while CarMax may have properly filed this case in county court
and the county court may have had the ability to entertain the action pursuant
to section 713.78(6), once the county court determined that CarMax’s
damages exceeded $15,000, the matter should have been transferred to the
circuit court....
...declaration that a towing lien perfected by Excalibur was void and
unenforceable.1 Excalibur moved to dismiss, contending that documents
attached to its motion established the tow was performed at the direction of
law enforcement and complied with the mandates of section 713.78, Florida
Statutes (2021)....
...RSC Corporation, LLC, d/b/a Ace Wrecker and Ace Auto Parts (collectively “RSC”), appeals a non-final order granting a motion for vehicle release filed by Hertz Vehicles, LLC. 1 On appeal, RSC contends the court erred in returning the vehicle to Hertz pursuant to section 713.78, Florida Statutes. RSC also claims it complied with the notice requirements contained in section 713.78, Florida Statutes....
...The Tahoe was not returned. Hertz then filed suit in the circuit court against RSC, Ace Auto Parts, Fischer Nissan and the third-party who purchased the vehicle. In its complaint, Hertz alleged: (1) wrongful possession and disposition in violation of section 713.78; (2) unjust enrichment; (3) conversion; and (4) civil theft....
...ehicle. Hertz requested that the county comptroller issue a certificate notifying RSC of the posting of the bond and directing RSC to release the Tahoe to Hertz’s custody. Hertz argued that RSC’s failure to comply with the notice requirements of section 713.78(4)(a) renders null and void the sale at which Ace Auto Parts purchased the Tahoe from RSC. As such, Hertz claimed it was the proper owner of the Tahoe. The trial court granted Hertz’s motion and ordered the Tahoe to be returned to it. The court found that RSC failed to fully and strictly comply with the notice requirements of section 713.78 and that RSC had not made a good faith effort to deter *361 mine the owner, any lienholders, or any insurance company as required by statute. The court further found that once RSC knew Hertz was located in Virginia it was required to check with Virginia’s Department of Motor Vehicles pursuant to section 713.78(4)(a) to identify the owner, lienholder, and insurance company....
...The court ordered RSC to immediately release the Tahoe into Hertz’s custody upon Hertz’s payment of a cash bond. On appeal, RSC contends it was error for the court to order immediate possession of the Tahoe to Hertz because it complied with all requirements of section 713.78. In particular, RSC claims it complied with the notice requirements located in section 713.78(4)....
...1141 , 137 So. 157, 159 (1931)). A statute is ambiguous if reasonable people “can find different meanings in the same language.” Rollins, 761 So.2d at 297 (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)). Section 713.78 deals with liens for recovering, towing, or storing vehicles and vessels....
...When “a person regularly engaged in the business of transporting vehicles ... by ... tow truck removes, or stores a vehicle or vessel upon instructions from ... [a]ny law enforcement agency” he is entitled to “a lien on the vehicle for a reasonable towing fee and a reasonable storage fee.” § 713.78(2)(c), Fla. Stat. It is undisputed that RSC is in the business of regularly transporting vehicles by tow truck and that it was asked by the Orange County Sheriffs Office to transport the vehicle. Thus, this case is governed by section 713.78. Section 713.78(4) sets forth the notice requirements that a towing company must follow when towing a vehicle....
...The person in charge of the towing service, garage, repair shop, or automotive service, storage, or parking place shall obtain such information from the applicable law enforcement agency within 5 days after the date of storage and shall give notice pursuant to paragraph (a) .... § 713.78(a) & (b), Fla....
...It must then notify the law enforcement agency. The person in charge of the towing company must then contact the relevant law enforcement agency within five days after the date of storage and obtain that information. The towing company must thereafter give notice pursuant to section 713.78(4)(a)....
...Subsection (4)(a) requires the towing company to give notice to the owner, insurance company insuring the vehicle, and all lienholders, “as disclosed by the records in the Department of Highway Safety and Motor Vehicles or of a corresponding agency in any other state.” Sections 713.78(4)(a) and (b) are clear and unambiguous....
...Even though RSC knew that the vehicle’s owner was located in Virginia, it did not contact any agencies in Virginia to determine whether there was an insurer or a lienholder having an interest in the vehicle. Because this was error under the *363 notice requirements contained in section 713.78(4), the court was correct in finding RSC did not fully comply with the notice requirements of section 713.78. As such, RSC was not entitled to any charges that arose from storing the vehicle. See § 713.78(9), Fla....
...nst such vehicle or vessel.”); Ford Motor Credit Co. v. Sw. Transp., Inc., 668 So.2d 1068, 1070 (Fla. 3d DCA 1996) (towing company must forfeit storage charges for vehicle where it did not use good faith best efforts to comply with requirements of section 713.78). RSC also claims the court erred in returning the Tahoe to Hertz after it was sold at auction. Section 713.78(5)(a) allows the owner of a vehicle or any person claiming a lien on the vehicle to file a complaint in the county court of the county in which the vehicle is stored within ten days of knowing where the vehicle is located. The purpose of the complaint is to allow the owner to determine whether his property was wrongfully taken or withheld from him. The remainder of section 713.78(5) reads as follows: (b) Upon filing of a complaint, an owner or lienholder may have her or his vehicle or vessel released upon posting with the court a cash or surety bond or other adequate security equal to the amount of the charges...
...In any event, the final order shall provide for immediate payment in full of recovery, towing, and storage fees by the vehicle or vessel owner or lienholder; or the agency ordering the tow; or the owner, lessee, or agent thereof of the property from which the vehicle or vessel was removed. Section 713.78(6) discusses the remedies available to an owner or lienholder if he learns of his vehicle’s location after the vehicle has been sold by the towing company....
...The owner or lienholder may file a complaint after the vehicle or vessel has been sold in the county court of the county in which it is stored. Upon determining the respective rights of the parties, the court may award damages, attorney’s fees, and costs in favor of the prevailing party. § 713.78(6), Fla....
...plaint after the vehicle ... has been sold in the county court of the county in which it is stored. Upon determining the respective rights of the parties, the court may award damages, attorney’s fees, and costs in favor of the prevailing party.” § 713.78(6), Fla....
...See United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972) (“[W]here Congress has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.”). Because suit was filed after the Tahoe was sold, section 713.78(6) controls and Hertz was entitled to recover “damages, attorney’s fees, and costs,” but it was not entitled to recover the Tahoe. Therefore, the order granting possession of the Tahoe to Hertz is reversed and the matter is remanded for further proceedings pursuant to section 713.78(6)....
...e, the time the vehicle was towed or removed, and the make, model, color, and license plate number of the vehicle and shall obtain the name of the person at that department to whom such information was reported and note that name on the trip record. Section 713.78 (3)(a) Any person regularly engaged in the business of recovering, towing, or storing vehicles who comes into possession of a vehicle pursuant to subsection (2), and who claims a lien for recovery, towing, or storage services, shall gi...
...(Affidavit of Jack Barcena, ¶ 6). Plaintiff estimates that he received the letter sometime at the end of July. (Depo. of Jack Barcena, ¶ 13-14). On August 1, 2003, Molina sent a "Notice of Claim of Lien Letter and Proposed Sale of Motor Vehicle" pursuant to Fla. Stat. § 713.78 by certified mail....
...According to the return receipt, Plaintiff obtained the letter, and signed for it at the post office on August 27, 2003. (Depo. of Jack Barcena, 18-19). The notice indicated that: (a) the accumulated towing and storage charges amounted to $100.00; (b) the owner had a right to a hearing under Fla. Stat § 713.78(4), to determine if their property was wrongfully taken; (c) the vehicle could be released to the owner after the owner posted a cash or surety bond or other adequate security equal to the amount of the charges for towing and storage with the court; and (d) the vehicle could be sold if not redeemed to satisfy the lien. Fla. Stat. § 713.78(4)(c) provides that a towing company shall give "notice by certified mail within 7 business days of the date of storage of the vehicle." The Statute further provides in subsection (9) that "[f]ailure to make good faith best efforts to compl...
...all preclude the imposition of any storage charges against such vehicle . . ." It is undisputed that the notice of lien sent by Molina was not mailed within seven business days from the date of storage of Plaintiffs vehicle as required by Fla. Stat. § 713.78(4)(c), but was rather two days late....
...Plaintiff argues that he was entitled to a hearing process similar to that afforded by Miami Code § 42-112, as well as that afforded to the plaintiff in City of Los Angeles v. David, 538 U.S. 715, 123 S.Ct. 1895, 155 L.Ed.2d 946 (2003), and that the post-deprivation remedy provided by Fla. Stat. § 713.78 is insufficient. (Plaintiff's Response, 2). In Response, DOSP argues that the post-deprivation procedures available to Plaintiff under Fla. Stat. § 713.78 provides more than adequate procedural due process protection. (DOSP's Reply, 4). In addressing whether the post-deprivation remedy is sufficient, I must first examine Fla. Stat. § 713.78(5). Specifically, Fla. Stat. § 713.78(5) provides that the "owner of a vehicle or vessel removed pursuant to the provisions of subsection (2) ....
...ful time and in a meaningful manner.'" City of Los Angeles v. David, 538 U.S. 715, 123 S.Ct. 1895, 155 L.Ed.2d 946 (2003) quoting Eldridge, 424 U.S. at 333, 96 S.Ct. 893. Accordingly, I will analyze the post-deprivation remedy provided in Fla. Stat. § 713.78(5) under the three prong test set forth in Mathews v....
...nity to be heard, at a meaningful time, and in a meaningful manner." (DOSP's Motion for Summary Judgment, 7). Having reviewed the applicable case law and record, I find no error in this argument. b. The Post-Deprivation Remedy Provided By Fla. Stat. § 713.78 Offers Sufficient Due Process Protection As stated above, the facts as pled in this case are similar to the underlying facts of Carcamo v....
...The vehicle was later found. Id. The defendant towed the vehicle after it was found. Id. The plaintiff was unable to secure the release of the vehicle until after she paid the towing and impoundment fees. See Id. at 1363. In Carcamo, the plaintiff argued that Fla. Stat. § 713.78, the same statute at issue here, violated her right to procedural due process because the statute only provided a tort action as the remedy to contest the propriety of the tow and impoundment fees, rather than a post deprivation hearing....
...284 F.Supp.2d at 1365. [10] Under the reasoning set forth by the district court in Carcamo, 284 F.Supp.2d 1362, and affirmed by the Eleventh Circuit, 375 F.3d 1104, I conclude, as a matter of law, that the post-deprivation tort remedy in Fla. Stat. § 713.78 provided Plaintiff in this case with an adequate post-deprivation remedy and did not violate Plaintiff's procedural due process rights....
...(Amended Complaint, ¶ 19-20). However by September 9, 2003, the storage and towage fees assessed against Plaintiff had increased to $800. (Amended Complaint, ¶ 23). This case only became a "car case" because Plaintiff did not exercise his rights under Fla. Stat. § 713.78, not because Fla. Stat. § 713.78 provides insufficient due process protection....
...Previously in responding to the Motions to Dismiss, Plaintiff alleged that he was indigent and he was unable to pay the storage fees. In its current Motion for Summary Judgment, DOSP argues, "Plaintiff cannot argue that he was financially unable to take advantage of the remedies available under § 713.78, because the records indicates that despite his claimed indigence, he had the financial ability to pay Molina $100." (DOSP's Motion for Summary Judgment, 9)....
...red" $100 to Orlando Molina. (Depo. of Jack Barcena, 24-26). Since Plaintiff had $100 to pay Molina, I conclude that Plaintiff was financially able to present his notice of lien and post the $100 cash bond to the circuit court pursuant to Fla. Stat. § 713.78. If Plaintiff had promptly complied with Fla. Stat. § 713.78 and posted the $100 bond that the record shows he could have paid, he would have received his vehicle....
...Moreover, Plaintiff did not contact the circuit court to seek a waiver of the filing fee or bond payment and made no attempt to secure the release of his vehicle until September 9, 2003, one day before the auction. These facts indicate that Plaintiff did not take advantage of the state remedy afforded to him by Fla. Stat. § 713.78....
...Therefore, I conclude, therefore, that the first prong of the Mathews v. Eldridge test weighs in favor of DOSP. The second Mathews v. Eldridge factor, the potential for an erroneous deprivation of property, can also be remedied by the tort action provided in Fla. Stat. § 713.78. If the state trial court determined that Plaintiff was indeed erroneously deprived of his property, Plaintiff could have been compensated under Fla. Stat. § 713.78(5)(c). If Plaintiff prevailed, and the state court could have awarded him damages, attorney's fees and costs for an improper tow. Additionally, DOSP argues that procedure set forth in Fla. Stat. § 713.78 satisfies any concern for accuracy and no additional procedures would have decreased the risk of erroneous deprivation because determining that Plaintiff's vehicle was in violation of the Miami-Dade County Code parking laws in question is simple and straight-forward....
...I agree and conclude that when Plaintiff's property interest in his automobile, which was used infrequently (if at all), are weighed against the interest of DOSP and the general public's welfare and interest in having available parking in the City of Miami, the procedures that Plaintiff demands in excess of Fla. Stat. § 713.78, are unfeasible. Having weighted the Eldridge factors above, I conclude that Plaintiff was afforded more than adequate procedural clue process pursuant to Fla. Stat. § 713.78. While Plaintiff might argue for the adoption of other processes or procedures than those currently in place, I conclude that Fla. Stat. § 713.78 comports with the mandates of the Fourteenth Amendment....
...As I discussed above, Plaintiff has not produced evidence that he was indigent. However even if I were to assume that he was indigent, he had access to the courts to institute a post-deprivation tort action to challenge the towing and impounding of his vehicle. Third, as I noted above, Fla. Stat. § 713.78(6)(c) allows the prevailing party to recover damages, all costs and fees incurred in prosecuting the tort action....
...Thus, I conclude that the post-deprivation tort remedy offered under Florida law will make the prevailing party whole. Fourth, I note that Plaintiff was able to file this post-deprivation action in federal court. Plaintiff could have availed himself of the post-deprivation tort action in state court provided in Fla. Stat. § 713.78, yet he chose to file this action instead....
...Eldridge , that he is entitled to this free ticket on procedural due process grounds. Accordingly because Carcamo is not significantly distinguishable, I grant DOSP's Motion for Summary Judgment on both Counts I and II because the tort action provided in Fla. Stat. § 713.78 comports with the requirements of procedural due process....
...ecessity." Id. at 1367 citing City of Los Angeles v. David, 538 U.S. at 718-719, 123 S.Ct. 1895. After balancing the three prongs of the Mathews v. Eldridge test, the district court in Carcamo held that the post-deprivation tort remedy in Fla. Stat. § 713.78 did not violate the plaintiff's due process rights "because she had access to adequate post-deprivation remedies." Id....
...The Eleventh Circuit in Lindsey held that "as long as some adequate [post-deprivation] remedy is available, no due process violation has occurred." Id. In this case, I have already concluded that Plaintiff had access to an adequate post-deprivation remedy tort action under Fla. Stat. § 713.78....
...teenth Amendment. I find no error with DOSP's argument on this point. As I stated above, I conclude that DOSP did not violate Plaintiff's procedural due process rights because Plaintiff had access to an adequate post-deprivation remedy in Fla. Stat. § 713.78, but he failed to avail himself of this procedure. Fla. Stat. § 713.78 provides individuals like Plaintiff, more than adequate opportunity in the state courts to challenge the validity of the impoundment. For the above reasons, I conclude that Count II of the Amended Complaint fails as a matter of law. [14] In Count IV of the First Amended Complaint, Plaintiff alleges: 73. Florida Statute § 713.78, provides in relevant part that wrecker operators are entitled to a lien for a reasonable towing fee and a reasonable storage fee, but only if the vehicle is towed upon instructions from: a) the vehicle owner; b) the owner or lessor of prop...
...Florida's lien statute does not authorize the imposition of a lien to secure payment of towing and storage fees when a vehicle is impounded upon instructions from an agent or employee of DOSP. 75. Nonetheless, the defendants have a policy and practice of imposing a lien pursuant to Florida Statute § 713.78 in order to secure payment of towing and storage fees....
removing, storing or destroying the property. Section 713.78(2), F.S., provides: Whenever a person
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
