Dennis LeVine, Brock & Scott, PLLC
Fraud by auto repair shops and towing companies cause lenders to lose their liens on vehicles and incur multi-million-dollar losses. In 2019, the Florida Legislature significantly amended the vehicle repair shop lien statute to address rampant fraud in Florida by vehicle repair shops. This effort began with a letter from the American Financial Services Association to legislators and was supported by lobbying by JM Family. These 2019 amendments, however, did not impact the towing and storage statute.
I drafted legislation to amend the towing and storage statute in order to provide additional protections for consumers and auto lenders, close loopholes used by fraudulent towing and storage operators, and help lenders reduce losses in Florida due to lien sale fraud. Last year the Business Law Section voted to support the amendments to the statute I drafted. The Bar approved as well and requested the Bar’s lobbyists help.
The Bar’s lobbyists, led by Douglas Bell, went to work. They found sponsors, and in February the bill was introduced in both the Fla. House and Fla. Senate. CS/HB 701 (2023) Wrecker and Towing-Storage Operators http://www.flsenate.gov/Session/Bill/2023/00701
The bill addressed three areas in the vehicle towing statute –
- Make it easier for a lender to inspect a vehicle held by a towing company
- Clarify that a lender or owner did not have to file a lawsuit first before posting a bond to obtain release of a vehicle held by a towing company
- Require landlords and self-storage facilities to use the towing/storage statute to foreclose liens for unpaid towing and storage
The Bar’s lobbyists told me the bill had the backing of the leadership in both houses. It sounded promising.
At the request of the Bar’s lobbyists, I went to Tallahassee in March, met with the bill sponsors, and testified in support of the bill before both the House Transportation Committee and the Senate Transportation Committee. There is video of the hearings online. www.myfloridahouse.gov/VideoPlayer.aspx?eventID=8696 The bill discussion starts at the beginning and goes through 39:30. My testimony begins at 24:00 and ends at 29:42. The towing lobby had organized and strongly opposed the legislation at each committee stop.
I was involved in negotiations with both the towing groups and the self-storage warehouse lobbyists. The legislation passed three separate committees in both Chambers without dissenting votes. Unfortunately, the towing lobby apparently was successful in derailing the bill – it did not make the agenda for the last committee stop, effectively killing it for this session. The Bar’s lobbyists told me they were assured the bill would be taken up again next year. I would appreciate the help of anyone who is interested.
All told, this was a very interesting experience to see the behind-the-scenes action in the Legislature when attempting to change the law. I greatly appreciate the help of Douglas Bell and his team for fighting hard to try and get the bill passed.
Below are more details on the three suggested amendments:
- The warehouse lien statute in Fla. Stat. 677.210 and the Self-service Storage Space statute in Fla. Stat. 83.801 have been abused to impose liens on vehicles for storage. There are very few protections for vehicle or vessel owners or lienholders under Fla. Stat. 677.210 and 83.801 et seq. – certainly not to the extent found in Fla. Stat. 713.78 and 713.585 which specifically relate to liens on vehicles (e.g. notice provisions, time between the notice and sale date, and procedure to post a bond). Warehouse liens generally relate to personal property storage facilities. I met with the DMV and suggested that these statutes should not apply to liens on vehicles, since there is a very specific statute for storage charges for cars (e.g. Fla. Stat. 713.78). The DMV disagreed, pointing to their regulations (Warehouse lien – TL 27 – https://www3.flhsmv.gov/dmv/Proc/tl/tl-27.pdf). Due to my urging, the DMV agreed to closely scrutinize any such warehouse lien transactions involving vehicles. The Business Law Section recommends amending Fla. Stat. 713.78 to make clear it is the sole procedure to place a lien for storage on a vessel or motor vehicle.
- The Legislature changed Fla. Stat. 713.78 in 2020 so a lawsuit does not have to be filed prior to posting a bond for towing/storage liens. That is a good thing. BUT, 713.78 was not changed to reference Fla. Stat. 559.917 regarding the procedure to posting bonds, including the 60-day time limit for the shop to file a claim on the bond. Simply stated, as highlighted below it appears clear that under the existing statute the 60-day time period in 559.917 (and the other provisions of that statute) is currently limited to just repair liens, and it does not apply to towing/storage liens.
559.917 Bond to release possessory lien claimed by motor vehicle repair shop.—
(1)(a) A customer or a person of record claiming a lien against a motor vehicle may obtain the release of the motor vehicle from any lien claimed under part II of chapter 713 by a motor vehicle repair shop for repair work performed under a written repair estimate by filing with the clerk of the court in the circuit in which the disputed transaction occurred a cash or surety bond, payable to the person claiming the lien and conditioned for the payment of any judgment which may be entered on the lien….
(b) The lienor shall have 60 days to file suit to recover the bond. The prevailing party in that action may be entitled to damages plus court costs and reasonable attorney fees. If the lienor fails to file suit within 60 days after the posting of such bond, the bond shall be discharged by the clerk.
So, under 713.78, there is no procedure to get the bond released when it is posted for a towing/storage lien and the car is recovered when the shop never files a claim on the bond. Actually, there is no procedure at all in the towing/storage statute to make a claim on or to release the bond, or a time limit. The Business Law Section recommends amending Fla. Stat. 559.917 to also reference liens for towing and storage so the 60-day time limit will apply to both repair liens, and towing/storage liens, and amend 713.78 to reference the bond process under 559.917.
- In 2020 the Legislature changed Fla. Stat. 713.585 to give the owner or lender the right to inspect the vehicle upon giving 3 business days notice. Unfortunately, the Legislature did not change the inspection provisions is 713.78, which require the lender or agent to have an original notarized document signed by the owner in order to require an inspection. The Business Law Section recommends utilizing the same language from 713.585 requiring the shop to allow an inspection upon 3 business days notice in 713.78.