Dave Mittler says he’s been parking in the little lot at 70 S. Market St. for years. But when he slid in there on the evening of Sept. 30 so he could grab a slice of pizza from Barley’s, he found out the hard way that it isn’t public parking. He saw the sign that says “No parking … vehicles will be towed away,” and Brian Daniel, the Eagle Market Streets Development Corp. employee who manages the building, even warned him not to park there or he would be towed. Mittler says he told Daniel he’d be quick but refused to move his car. When he got back, it was nowhere to be found.
Mittler concedes that parking there was inadvisable, but he wasn’t happy when he couldn’t tell how to get his car back: The warning sign lacked the required recovery number. The city has specific rules governing “trespass towing” (removing a vehicle from private property without the owner’s consent) in the central business district and Biltmore Village. But Mittler takes issue with the way the city enforces those rules.
More than three-quarters of the over 10,000 parking spaces scattered around downtown Asheville are in surface lots rather than on the street or in garages, and most of those lots are privately owned. The city doesn’t write tickets in them, but they’re often protected by the threat of towing, and lot owners take various approaches to enforcement.
Fed up with unauthorized people using their lots, some owners have posted signs forbidding parking (at least during certain hours) under pain of towing. A city ordinance specifies the height, size and lettering of such signs, their proximity to the street line and the required content: a recovery number, the hours during which towing is enforced and the recovery cost. And many of these lots are regularly patrolled for violators. But the city doesn’t evaluate individual signs unless someone complains about being unfairly towed, says Harry Brown, parking services manager. Whether the property owner or the towing company posts the sign, he explains, if it doesn’t comply with the ordinance, “We fine the tow company, because they’re the ones doing the action.”
Some lots, notes Brown, have “signs up warning they’ll tow, and they probably never do,” relying instead on a scarecrow effect. That may be the case at 70 S. Market. Mittler says people park there all the time. But it is unclear whether the lot truly depends on the scare factor or if the sign is regularly backed up by towing. Terry Petty of Auto Safe Towing says his company doesn’t have standing permission to tow unauthorized vehicles there but that Daniel specifically asked them to tow Mittler’s car. The vehicle, says Petty, was blocking access to the ramp for people with disabilities; Daniel declined to comment, saying he just wants to put the situation behind him.
It took Mittler hours to get his car back. He had the police ask Daniel which company had done the towing, and he had to pay a $195 recovery fee. Meanwhile, Brown fined Auto Safe Towing $200 for towing when the required warning hadn’t been given. Petty appealed the fine, but Transportation Director Ken Putnam denied the appeal.
Mittler, however, isn’t satisfied: He wants recovery numbers on all tow signs. He says he asked Brown how people whose cars have been towed from a lot with no recovery number posted are supposed to recover their property, and Brown simply said they shouldn’t park there.
“This is about the ordinance,” Mittler maintains. “This is about the idiot who chooses to park in the tow zone having a constitutional right to recover his car and his belongings. … This is not going to fly.” Mittler says he’s considering suing the city if necessary.
Tow the line
By 2008, nonconsensual (or “predatory”) towing had become a hot-button issue here (see “No Parking,” Dec. 10, 2008, Xpress). The city’s 2003 requirement that lots allowing towing post warning signs hadn’t protected the public from frequent bouts of illegal, unethical or simply unreasonable tows, and the Asheville Area Chamber of Commerce, as well as many locals and visitors, kept raising their concerns with City Council and staff. City Attorney Bob Oast and his staff drafted the current ordinance, based mostly on Raleigh’s, and it was adopted in April 2009.
Towing, Oast told Council, had been causing problems “most of the time I’ve been here. … This is not going to end nonconsensual towing in this town, but you are doing as much as you can.” A 2014 state Supreme Court ruling prohibited cities from setting prices for towing or boot removal; all of that language was subsequently removed from the ordinance.
Some evidence suggests that the revised ordinance may be working fine. Brown says he’s issued only about three fines this year for violations, and some years, he doesn’t issue any. The system, however, is still complaint-based, so there’s no record of illegal tows that Brown never hears about.
What about me?
As so often happens in matters of law, problems arise when different people’s rights come into conflict. In this case, the squeaky wheel is Mittler. He acknowledges the property owners’ rights, but he also asks, “Where’s my rights? Where’s the tourist from Florida’s rights with their family, that are parking in that spot and they get towed? The city is basically telling me and those people, ‘Screw you! We want money because when [Petty] tows and Mittler complains, we’re going to get another $300 fine from him.’” Petty “knows it’s illegal to tow [in these situations] and he’s doing it anyway,” Mittler asserts.
Asked about the allegations, Petty said: “No, sir. We follow the city’s laws and rules. We work with their system.” Petty maintained that he’s simply trying to run a business, as is his right, and he and his employees do their best to make good decisions about which cars to tow, within the limits spelled out by the regulations. Overall, said Petty, he thinks his company does a good job.
State law gives Asheville the authority to enact a towing ordinance, says Giles Perry, an attorney with the N.C. General Assembly’s Legislative Services Office in Raleigh. But how the city chooses to enforce its ordinance is up to the city manager and his designees.
Xpress asked various city staffers whether the ordinance, as it stands, is sufficient to protect the public from predatory towing, but none were willing to address the question. As communications specialist Polly McDaniel put it, “This is not a legal question per se; rather, it is a matter of policy, which is decided by City Council.”
Nonetheless, Mittler is hellbent on persuading the city to hold property owners who post tow-away warning signs accountable as well. “All they have to do,” he argues, “is just say, ‘We love your business, we love your taxes and having your building here, but because we have an ordinance, if you choose to put that tow-away sign up, you have to put a recovery number there, because the idiots who park here have a right to get their stuff.’”
Dude, where’s my car?
Brown, however, says he can’t force a property owner to put up a sign or include a recovery number, and the city attorney’s office agrees. According to McDaniel, their position is that although the ordinance makes it illegal to tow or immobilize a car unless certain notification conditions are met, it doesn’t prohibit posting a noncomplying sign. But if a company tows a car despite that noncomplying sign or in the absence of any sign at all and someone complains, the business could face a fine of up to $500 for inappropriate towing. In the city’s view, such violations start and end with whoever tows or immobilizes the vehicle.
Petty’s appeal was based mainly on the fact that an agent of the property owner gave his company permission to tow the car and warned Mittler beforehand. According to the city’s legal team, however, the ordinance addresses the owner’s or lessee’s giving permission to park, not permission to tow.
And even though Petty’s appeal was unsuccessful, Mittler can forget about getting his $195 back, the city’s lawyers say. Under state law, the city may impose a civil fine for breaking its ordinance, but it has no authority to make a violator pay another citizen for damages.
In all of this, the most protected party is the property owner. Although owners can be held liable for some things that might happen to a trespasser or the trespasser’s car while it’s on the owner’s property, they can’t be held at fault if a third party tows or immobilizes a car parked there.
So what should you do if you’ve parked in a private lot, come back and your vehicle is nowhere to be found?
The shortest path is pretty much what Mittler did. The ordinance requires towing companies to notify police when they make a trespass tow, so within 30 minutes, the APD should be able to find out where the missing car was towed. Companies are required to grant timely access to such vehicles, and if the sign doesn’t seem to meet the ordinance’s requirements, notes Brown, towing victims should report the incident to his office so he can investigate it.
Mittler, however, maintains that the ordinance as written and enforced doesn’t do enough to protect people’s right to recover their car and belongings — or to punish those who tow when the ordinance prohibits it.
“I’m not letting this go,” vows Mittler. “This is not going to disappear, and I’m not going to disappear.”