715.07 Vehicles or vessels parked on private property; towing.—
(1) As used in this section, the term:
(a) “Vehicle” means any mobile item which normally uses wheels, whether motorized or not.
(b) “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.
(2) The owner or lessee of real property, or any person authorized by the owner or lessee, which person may be the designated representative of the condominium association if the real property is a condominium, may cause any vehicle or vessel parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles or vessels, without liability for the costs of removal, transportation, or storage or damages caused by such removal, transportation, or storage, under any of the following circumstances:
(a) The towing or removal of any vehicle or vessel from private property without the consent of the registered owner or other legally authorized person in control of that vehicle or vessel is subject to substantial compliance with the following conditions and restrictions:
1.a. Any towed or removed vehicle or vessel must be stored at a site within a 10-mile radius of the point of removal in any county of 500,000 population or more, and within a 15-mile radius of the point of removal in any county of fewer than 500,000 population. That site must be open for the purpose of redemption of vehicles on any day that the person or firm towing such vehicle or vessel is open for towing purposes, from 8:00 a.m. to 6:00 p.m., and, when closed, shall have prominently posted a sign indicating a telephone number where the operator of the site can be reached at all times. Upon receipt of a telephoned request to open the site to redeem a vehicle or vessel, the operator shall return to the site within 1 hour or she or he will be in violation of this section.
b. If no towing business providing such service is located within the area of towing limitations set forth in sub-subparagraph a., the following limitations apply: any towed or removed vehicle or vessel must be stored at a site within a 20-mile radius of the point of removal in any county of 500,000 population or more, and within a 30-mile radius of the point of removal in any county of fewer than 500,000 population.
2. The person or firm towing or removing the vehicle or vessel shall, within 30 minutes after completion of such towing or removal, notify the municipal police department or, in an unincorporated area, the sheriff, of such towing or removal, the storage site, the time the vehicle or vessel was towed or removed, and the make, model, color, and license plate number of the vehicle or description and registration number of the vessel 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.
3. A person in the process of towing or removing a vehicle or vessel from the premises or parking lot in which the vehicle or vessel is not lawfully parked must stop when a person seeks the return of the vehicle or vessel. The vehicle or vessel must be returned upon the payment of a reasonable service fee of not more than one-half of the posted rate for the towing or removal service as provided in subparagraph 6. The vehicle or vessel may be towed or removed if, after a reasonable opportunity, the owner or legally authorized person in control of the vehicle or vessel is unable to pay the service fee. If the vehicle or vessel is redeemed, a detailed signed receipt must be given to the person redeeming the vehicle or vessel.
4. A person may not pay or accept money or other valuable consideration for the privilege of towing or removing vehicles or vessels from a particular location.
5. Except for property appurtenant to and obviously a part of a single-family residence, and except for instances when notice is personally given to the owner or other legally authorized person in control of the vehicle or vessel that the area in which that vehicle or vessel is parked is reserved or otherwise unavailable for unauthorized vehicles or vessels and that the vehicle or vessel is subject to being removed at the owner’s or operator’s expense, any property owner or lessee, or person authorized by the property owner or lessee, before towing or removing any vehicle or vessel from private property without the consent of the owner or other legally authorized person in control of that vehicle or vessel, must post a notice meeting the following requirements:
a. The notice must be prominently placed at each driveway access or curb cut allowing vehicular access to the property within 10 feet from the road, as defined in s. 334.03(22). If there are no curbs or access barriers, the signs must be posted not fewer than one sign for each 25 feet of lot frontage.
b. The notice must clearly indicate, in not fewer than 2-inch high, light-reflective letters on a contrasting background, that unauthorized vehicles will be towed away at the owner’s expense. The words “tow-away zone” must be included on the sign in not fewer than 4-inch high letters.
c. The notice must also provide the name and current telephone number of the person or firm towing or removing the vehicles or vessels.
d. The sign structure containing the required notices must be permanently installed with the words “tow-away zone” not fewer than 3 feet and not more than 6 feet above ground level and must be continuously maintained on the property for not fewer than 24 hours before the towing or removal of any vehicles or vessels.
e. The local government may require permitting and inspection of these signs before any towing or removal of vehicles or vessels being authorized.
f. A business with 20 or fewer parking spaces satisfies the notice requirements of this subparagraph by prominently displaying a sign stating “Reserved Parking for Customers Only Unauthorized Vehicles or Vessels Will be Towed Away At the Owner’s Expense” in not fewer than 4-inch high, light-reflective letters on a contrasting background.
g. A property owner towing or removing vessels from real property must post notice, consistent with the requirements in sub-subparagraphs a.-f., which apply to vehicles, that unauthorized vehicles or vessels will be towed away at the owner’s expense.
A business owner or lessee may authorize the removal of a vehicle or vessel by a towing company when the vehicle or vessel is parked in such a manner that restricts the normal operation of business; and if a vehicle or vessel parked on a public right-of-way obstructs access to a private driveway the owner, lessee, or agent may have the vehicle or vessel removed by a towing company upon signing an order that the vehicle or vessel be removed without a posted tow-away zone sign.
6. Any person or firm that tows or removes vehicles or vessels and proposes to require an owner, operator, or person in control or custody of a vehicle or vessel to pay the costs of towing and storage before redemption of the vehicle or vessel must file and keep on record with the local law enforcement agency a complete copy of the current rates to be charged for such services and post at the storage site an identical rate schedule and any written contracts with property owners, lessees, or persons in control of property which authorize such person or firm to remove vehicles or vessels as provided in this section.
7. Any person or firm towing or removing any vehicles or vessels from private property without the consent of the owner or other legally authorized person in control or custody of the vehicles or vessels shall, on any trucks, wreckers as defined in s. 713.78(1), or other vehicles used in the towing or removal, have the name, address, and telephone number of the company performing such service clearly printed in contrasting colors on the driver and passenger sides of the vehicle. The name shall be in at least 3-inch permanently affixed letters, and the address and telephone number shall be in at least 1-inch permanently affixed letters.
8. Vehicle entry for the purpose of removing the vehicle or vessel shall be allowed with reasonable care on the part of the person or firm towing the vehicle or vessel. Such person or firm shall be liable for any damage occasioned to the vehicle or vessel if such entry is not in accordance with the standard of reasonable care.
9. When a vehicle or vessel has been towed or removed pursuant to this section, it must be released to its owner or person in control or custody within 1 hour after requested. Any vehicle or vessel owner or person in control or custody has the right to inspect the vehicle or vessel before accepting its return, and no release or waiver of any kind which would release the person or firm towing the vehicle or vessel from liability for damages noted by the owner or person in control or custody at the time of the redemption may be required from any vehicle or vessel owner or person in control or custody as a condition of release of the vehicle or vessel to its owner or person in control or custody. A detailed receipt showing the legal name of the company or person towing or removing the vehicle or vessel must be given to the person paying towing or storage charges at the time of payment, whether requested or not.
(b) These requirements are minimum standards and do not preclude enactment of additional regulations by any municipality or county including the right to regulate rates when vehicles or vessels are towed from private property.
(3) This section does not apply to law enforcement, firefighting, rescue squad, ambulance, or other emergency vehicles or vessels that are marked as such or to property owned by any governmental entity.
(4) When a person improperly causes a vehicle or vessel to be removed, such person shall be liable to the owner or lessee of the vehicle or vessel for the cost of removal, transportation, and storage; any damages resulting from the removal, transportation, or storage of the vehicle or vessel; attorney’s fees; and court costs.
(5)(a) Any person who violates subparagraph (2)(a)2. or subparagraph (2)(a)6. commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any person who violates subparagraph (2)(a)1., subparagraph (2)(a)3., subparagraph (2)(a)4., subparagraph (2)(a)7., or subparagraph (2)(a)9. commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Cited 5 times | Published | Florida 4th District Court of Appeal | 1988 WL 70652
...s dealer tag being registered to said firm. The proof showed the truck belonged to Bunting, not General Makes. When Daly's, Inc., persisted in refusing to release the truck, Bunting filed a second amended complaint in four counts for 1) violation of section 715.07, Florida Statutes (1985), 2) wrongful conversion, 3) civil theft, and 4) punitive damages....
...owed by George and Sons. He placed several calls to George and Sons but did not retrieve his vehicle until the next day. It was this delay that served as the basis for Mrs. Franzone's conviction. Mrs. Franzone was convicted of violating the terms of section 715.07(2)(a)(1)(a), Florida Statutes (2008), which sets forth the conditions by which a vehicle may be towed from private property without the owner's consent....
...r where the operator of the site can be reached at all times. Upon receipt of a telephoned request to open the site to redeem a vehicle or vessel, the operator shall return to the site within 1 hour or she or he will be in violation of this section. § 715.07(2)(a)(1)(a) (emphasis added). The statute also identifies a violation of section 715.07(2)(a)(1)(a) as a third-degree *332 felony. § 715.07(5)(b)....
...But the trial court also observed that the evidence presented was so conflicting that the jury may be unable to determine what actually happened that night. [3] On appeal, in addition to raising the arguments she made in the motion for judgment of acquittal, Mrs. Franzone challenges the constitutionality of section 715.07(2)(a)(1), arguing that it is vague and that it fails to include a mens rea element....
...When chapter 608 is compared to chapter 607 governing corporations, it is obvious that the LLC is comparable to the more traditional business structure of a corporation. Such a business entity, in this case Zoner, LLC, would be the "firm" referred to in the definition of "wrecker operator" found in section 1.01. Cf. § 715.07(2)(a)(6) (referencing " [a]ny person or firm that tows or removes vehicles"), (2)(a)(7) (referencing " [a]ny person or firm towing or removing any vehicles"), (2)(a)(9) ("[N]o release or waiver of any kind which would release the person or firm towing the vehicle. . . may be required . . . as a condition of release of the vehicle . . . to its owner.") (emphasis added). We therefore conclude that the term "operator" as used in section 715.07 applies to the natural person or firm that engages for hire in the business of towing vehicles....
...Due to the parking spot’s purportedly improper marking, and because of
Towing Company’s actions in towing her vehicle despite “seeing that the
spot was not marked as [disabled],” Appellant alleged that Towing
Company violated sections 501.204 and 715.07, Florida Statutes (2020)....
....
3 Section 501.204 is part of FDUTPA and prohibits “[u]nfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or
practices in the conduct of any trade or commerce . . . .” § 501.204(1), Fla. Stat.
(2020). Section 715.07, in turn, covers parking on private property and towing,
prohibiting a person from “improperly caus[ing] a vehicle or vessel to be removed
. . . .” § 715.07(4), Fla....
...1893 , 32 L.Ed.2d 556 (1972), and therefore could validly perfect a lien for storage charges as to said vehicles. Therefore the final judgment entered after admissions made at a pretrial conference 2 be and the same is hereby affirmed. Affirmed. . Section 715.07(2) 2....
...ng 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 property upon which a vehicle is wrongfully parked, provided that such removal is done in compliance with F.S. 715.07; c) a law enforcement agency; or a mobile home park owner....
...Quesada;
Fulgencio Law, P.L.L.C., and Felipe B. Fulgencio and Courtney A. Umberger
(Tampa), for appellee.
Before LOGUE, LINDSEY, and LOBREE, JJ.
LINDSEY, J.
American Towing of Miami, LLC appeals from a non-final order1
granting class certification in an action for violating section 715.07(2)(a)(9),
Florida Statutes (2020), which prohibits requiring a release from liability for
damages as a condition of vehicle release. We reverse because section
715.07(2)(a)(9) does not create a civil cause of action.
I. BACKGROUND
In July 2018, Leonel Espinal brought an action against American
Towing in the small claims division of the county court alleging improper
towing of his vehicle in violation of section 715.07. In November 2018,
Espinal filed an amended complaint to certify a class against American
Towing for violating section 715.07(2)(a)(9), which provides, in pertinent part,
as follows:
When a vehicle ....
...de novo.
Alderwoods Grp., Inc. v. Garcia, 119 So. 3d 497, 503 (Fla. 3d DCA 2013).
In Mallery v. Norman L. Bush Auto Sales & Services, Inc., 301 So. 3d 361
(Fla. 2d DCA 2020), the Second District held that a towing company’s
noncompliance with section 715.07(2)(a)(9) does not create a civil cause of
action....
...3d DCA Sept. 2, 2020).
3
follow, we agree with the statutory interpretation set forth in Mallery and
therefore conclude that class certification was improper as there is no civil
cause of action for violating section 715.07(2)(a)(9). 3
We begin with the text of section 715.07(2), which permits the towing
of vehicles parked on private property and requires substantial compliance
with certain conditions and restrictions:
(2) The owner or lessee of real property, or any
person author...
...icle or vessel is
subject to substantial compliance with the
following conditions and restrictions:
Applicable here is the restriction on requiring a release from liability for
damages, which is set forth in section 715.07(2)(a)(9). Because the text of
3
Although the issue in Mallery had to do with the failure to comply with the
one-hour return requirement in section 715.07(2)(a)(9), Mallery’s legal
analysis is equally applicable here.
4
the statute does not explicitly provide for a private cause of action, we
consider whether one will be judicially implied....
...3d 541, 550 (Fla. 2012).
This a question of legislative intent, which we discern from the actual
language in the statute. Mallery, 301 So. 3d at 364 (citing QBE, 94 So. 3d
at 550-51).
As the court explained in Mallery, a towing company’s violation of
section 715.07(2)(a)(9) is punishable as a third-degree felony. Id.: see also
§ 715.07(5)(b) (“Any person who violates subparagraph ....
...In other words, “the legislature, based on
the plain language of the statute, chose a criminal penalty—a felony for that
matter—to enforce a towing company’s noncompliance with subsection
(a)(9).” Mallery, 301 So. 3d at 364 -65.
Moreover, in the broader context of section 715.07(2)(a), seven of the
conditions and restrictions carry a criminal penalty. See id. at 365 (“[I]f a
towing company violates seven of the requirements arrayed in section
715.07(2)(a), the towing company faces a criminal penalty of either a
second-degree misdemeanor or a third-degree felony.”). However, section
715.07(2)(a)(8), unlike the other subsections, is excluded from criminal
punishment and instead explicitly mandates civil liability for noncompliance.
5
“In other words, by excluding section 715.07(2)(a)(8) from criminal penalty
for violating it, the legislature intended to impose civil liability for
noncompliance with it.” Mallery, 301 So....
...Therefore, because we agree with Mallery and discern no legislative
intent to create a private cause of action from the actual language used in
the statute, which imposes a criminal penalty as opposed to civil liability for
noncompliance with section 715.07(2)(a)(9), we reverse the order granting
class certification.
Reversed and remanded.
6
...t remain unclaimed by the owner for seven years after the lease or rental period on the box has expired are presumed abandoned. 7 Section 509.013 (4)(a) and (5)(a), define "[p]ublic lodging establishment" and "[p]ublic food service establishment." 8 Section 715.07 (1), F.S., defines "vehicle" to mean "any mobile item which normally uses wheels, whether motorized or not." 9 See, s. 715.07 (2), F.S. 10 See, s. 715.07 (2)(a)1.-9., F.S., setting forth the minimum standards for removal of vehicles from private property. 11 See, s. 715.07 (4), F.S....
...Shortly after Johnson moved
into her new home, Carroll Oaks had her car towed. She had parked in
her assigned space but used a hang tag intended for guest parking
because she had not yet been given a resident parking sticker.
Johnson sued Carroll Oaks based on the latter's failure to post a
notice prescribed by section 715.07(2)(a)(5), Florida Statutes (2020),
before towing her car....
...Shortly after Johnson moved
into her new home, Carroll Oaks had her car towed. She had parked in
her assigned space but used a hang tag intended for guest parking
because she had not yet been given a resident parking sticker.
Johnson sued Carroll Oaks based on the latter's failure to post a
notice prescribed by section 715.07(2)(a)(5), Florida Statutes (2020),
before towing her car....
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.
