Resident challenges city’s enforcement of towing ordinance

AN INCONVENIENT ROOST: When a vehicle is towed, big questions can arise about where you parked and whether the tow company satisfied local laws regarding towing. Knowing the law can help get your car and belongings back faster. And if a tow company is in the wrong, it might be assessed a hefty fine. Photo by Able Allen

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.

Scarecrow lots

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.”

THE SIGN IN QUESTION: Harry Brown found the towing sign at 70 Market St. was not in compliance with the city's requirements of pre-notification for trespass towing because it was not within five feet of the street and did not meet the requirements for wording and sign size. Photo by Able Allen
THE SIGN IN QUESTION: Harry Brown found the towing sign at 70 Market St. was not in compliance with the city’s requirements of pre-notification for trespass towing because it was not within five feet of the street and did not meet the requirements for wording and sign size. Photo by Able Allen

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.”

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About Able Allen
Able studied political science and history at Warren Wilson College. He enjoys travel, dance, games, theater, blacksmithing and the great outdoors. Follow me @AbleLAllen

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12 thoughts on “Resident challenges city’s enforcement of towing ordinance

  1. boatrocker

    Just a question to anyone in the know- how is it that property owners aren’t required to post a phone # on a sign?
    As if the vehicle owner will just say ‘Oh well, I didn’t need my vehicle anyway, just keep it?’

    What a scam. I know what Mad Max would have done if his car was messed with (see the first movie).

    The word predatory (like a shark circling the waters) is oft used to describe local towing practices, As if we need another reason not to go downtown.

    From what I’ve read, it’s also illegal for Good Samaritans to put change into random parking meters too? How quaint.

    • luther blissett

      The article explained this: “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.”

      The ordinance regulates the act of towing, not the status of private parking spaces, and says that it’s illegal to tow if there’s not a phone number on a sign. The legal relationship it defines is between the city and the people towing. So it’s legal to post a sign that doesn’t have a contact number, but if you get towed, then the city can penalize the towing company. I assume that the city doesn’t feel like it has the power to regulate signage on private property beyond the current sign ordinance, and that trying to extend its powers over private property — either by the sign ordinance or zoning — would open a can of worms.

      We all know that downtown doesn’t lack parking spaces, even on the busiest nights: it has acres of private surface lots and a bunch of property owners who might pay a guy with a lawn chair to collect $5 per on weekends, but most of the time leave the tow trucks in charge so that the lots stay empty.

      The interesting question for the year ahead is whether the new public decks will put the guy in a lawn chair out of work, and whether those downtown surface lots will start to look like primo development space. There have been mutterings about high-rise infill on the block on Patton between Church and Lexington, and there are other spaces off Coxe heading down to Hillard where surface lots may feel like a wasted opportunity to build up.

      • Thatah cherrio

        A can of worms? Private property is required by our city to do things like put up braille bathroom signage. Telling private property owners to adequately sign their tow policy is exactly in the scope of city officials protecting it’s citizens. As is, the explanation implies the signage liability is squarely on the tow company, who has no legal authority to affix signs on private property not belonging to them. How can we demand the tow company be liable for improper towing while not requiring the property owner be sign compliant? That’s the most ridiculous slippery logic I’ve ever seen. Let’s blame one business for the failing of another without correcting both because capitalism. Requiring adequate signage is fully within law. I’d further say that in every improperly towed vehicle, the city is an accomplice to grand theft along with the property owner and the tow company.

        • luther blissett

          “Private property is required by our city to do things like put up braille bathroom signage.”

          That’s the ADA, not the city. I’m not defending the situation, just offering a plausible rationale: the existing sign regulations are focused on commercial signage; the towing ordinance is regulating the operations of towing companies. Case law in NC gives private lot owners a lot of leeway under the laws of trespass.

          “How can we demand the tow company be liable for improper towing while not requiring the property owner be sign compliant?”

          Because it’s a deliberate choice of tow companies to tow or not tow? If in doubt, go to the next lot. Hypothetically, if a property owner put up a deliberately ambiguous or deceptive sign — saying that parking is permitted under certain circumstances but getting vehicles towed anyway — there’d be more of a case for civil action.

          The Charlotte ordinance, on which the Asheville one is modeled, has an additional clause that prevents towing during the daytime (7am-7pm) unless there’s specific written authorization from the lot owner or a designated agent — who can’t be employed by the tow company — and the PD is notified. That seems like a good idea.

  2. John

    If you have the time to sue the city over being towed, you may want to find a hobby or get a job.

    • annie

      @John: do you even know this guy? how can you be so bold as to assume his circumstances? pretty arrogant of you. i actually know him and he is at a job 7 days of the week, practically sunrise to sunset; no slouch.

  3. WAVL

    So what would happen if you’re towed from a spot with no signage at all? Would the case still be that the property owner skates, the tow truck company gets fined, and the car owner gets boned?

    • boatrocker

      Sounds about right to me.

      Suddenly my rollerblades from the 90’s that have gathered dust over the years don’t seem so ridiculous after all.

  4. jonathan wainscott

    UPDATE:

    After several weeks of trying to get a meeting with the Mayor, Dave Mittler was told Esther Manheimer would not meet with him. He went to the City Attorney’s office and was also refused a meeting by the City Attorney, Robin Currin. Ms. Currin claims that Mr. Mittler threatened her and she told him that she would call the police if he didn’t leave her office. That seems to be a pretty serious allegation for the City Attorney to make…as a matter of public record…during a City Council meeting.

    https://youtu.be/hzoJLQaVR74

  5. G Webster

    The predatory policy in Asheville is costing downtown a loss of business from locals, and a permanent loss from visitors who swear they will never come back.

    The Charlotte version of the law that requires property owners to specifically call for a tow makes sense, but that doesn’t protect visitors at night. Why the Post Office allows towing is odd – unless there is a kickback involved, which I have been told not unusual.

    I was in charge of controlling parking during the day at an office just east of downtown Denver some years back, and had more than a few vehicles towed during office hours. After that, we were good neighbors (with respect to downtown business at night), and did not care if the lot was used then.

    Grow up Asheville – and stop thinking you are a major metro city – you are not !

    Anyway, don’t bother going downtown much anymore – not the cost – just the pain in the ass the whole thing is. I sure miss the DSS lot – I even had a manager there tell me to use it – but only after it was closed.

  6. Lamar Whaley

    Although downtown and Asheville are in surface lots, Petty’s appeal was relevant as well. Because shipping companies like Uship, http://www.wewilltransportit.com also do this towing business. They have responsibility over the vehicles they have hired. So the claim of residents seems irrelevant although. Permission to park towing vehicles should be given to shipping companies at parking lots.

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