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HomeMy WebLinkAboutOrd. 1450-2011 ORDINANCE NO. 1450 -2011 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA AN ORDINANCE AMENDING CHAPTER 6.64 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE TO ADD REGULATIONS REGARDING PROVISION OF TOW SERVICES WHEREAS, the City of South San Francisco ( "City") requires tow services in the exercise of its police powers as necessary or appropriate for the general welfare of its citizens; and WHEREAS, pursuant to California Vehicle Code Section 12110, the City may establish a towing franchise and charge fees in connection with the award of a franchise for towing vehicles on behalf of the City, provided the fees do not exceed the amount necessary to reimburse the City for its actual and reasonable costs incurred in connection with the towing program; and WHEREAS, the City desires to utilize private tow services to carry out its tow service operations; and WHEREAS, this ordinance shall constitute the exclusive procedure applicable to the granting of franchises for police - generated tows; and WHEREAS, this ordinance shall not apply to tow services directly offered to members of the public, who shall remain free to choose their own tow company and independently make arrangements with such companies. NOW THEREFORE, the City Council of the City of South San Francisco does hereby ordain as follows: SECTION 1. AMENDMENTS The City Council hereby amends the following sections of Chapter 6.64 of the South San Francisco Municipal Code to read as follows. Sections and subsections that are not amended by this Ordinance are not included below, and shall remain in full force and effect. 6.64.010 Definitions. This following definitions shall be added to this section: "Police chief' or "chief of police" means the chief of police of the City of South San Francisco or his or her designee. "Police- generated tow" means any tow requested by the South San Francisco Police Department in the course of official police activities including, but not limited to, the tow of a vehicle that is subject to impound under the California Vehicle Code, driven by a driver who is arrested, detained, incapacitated, or physically unable to drive the vehicle, involved in a traffic collision or accident, or abandoned and subject to towing under the Vehicle Code or the Municipal Code. "Operator" means the owner and/or manager of a tow vehicle company. "Rotational tow program" means a program established and maintained by the police chief, containing the names of tow vehicle Operators that are party to a franchise agreement with the City and are authorized, able and shall be called upon by the City to respond to requests for police - generated tows. "Tow vehicle driver" means a person holding a valid California driver's license and who has been trained and fully authorized to operate a tow vehicle. 6.64.030 Permit — Required. (a) No person whose principal place of business is within this city, or who has obtained a tow service franchise from the city shall engage in the business of operating a tow vehicle or tow vehicle company within the city or offer such services within the city without first obtaining and maintaining a valid tow vehicle operator's permit from the chief of police, as provided in this chapter, and then obtaining and maintaining a valid business license (where required) from the finance department. Permits shall be issued for a period not exceeding one year. (b) Any person(s) or tow company owners(s) violating the provisions of this section or failing to comply with the mandatory provisions of this section is guilty of a misdemeanor and, upon conviction, such person shall be punished as provided in Chapter 1.24 of this code. 6.64.040 Permit — Application. (7) A copy of a current insurance policy, which shall cover the operation of the applicant's business, equipment and vehicles for bodily injury or property damage. The policy limits shall not be less than one million dollars per accident for bodily injury or property damage. The aggregate amount of such insurance shall be not less than two million dollars, 6.64.080 Rotational tow program for police - generated tows; franchise required. (a) A rotational tow program is hereby established to allow for towing services for police- generated tows, in accordance with this chapter. (b) No person shall perform towing services for a police - generated tow unless such person has obtained a tow service franchise from the city. The police chief is hereby authorized to enter into and oversee franchise agreements for police - generated tow services, on behalf of the City, subject to the rules and regulations in State law and this Chapter 6.64. (c) Participants in the rotational tow program, as well as all other permittees in the City, shall at all times be subject to the schedule of fees which are established and approved by the chief of police, and provided for in the California Vehicle Code. (d) A franchise shall not be required for: (1) Operators or drivers performing tows that are not police - generated tows; (2) Operators or drivers performing police - generated tows when no franchisee is available or able to perform such services or cannot provide such services in a timely manner; or (3) An officer or employee of the city in the course of official duty. (e) Each franchisee shall be required to pay a franchise per- vehicle fee to the city. Such fee shall be in an amount described in the city's Master Fee Schedule as set forth in the franchise agreement, and shall not exceed the city's reasonable costs of administering the rotational tow program. Such franchise fees shall be in addition to other applicable taxes, fees, or charges, if any, payable by tow Operators. 6.64.085 Eligibility for participation in rotational tow program. (a) Only tow Operators who have been granted a tow service franchise shall be eligible to participate in the rotational tow program. Operators wishing to obtain a tow service franchise shall submit a complete application to the police department for review and approval. Each application shall contain the following information: (1) The name, address, and telephone number of the applicant. If the applicant is a partnership or corporation, the name, address and telephone number of each partner or of each of its directors, officers, major stockholders, and associates, and the names, addresses, and telephone numbers of any parent or subsidiary company. (2) If applicable, a complete and executed copy of the most recent South San Francisco franchise agreement for tow vehicle services. (3) Any other information deemed reasonably necessary by the police chief, or designee, to determine whether the requested franchise should be granted. (b) Upon receipt of a complete application, the police department shall investigate the facts listed in the complete application supporting inclusion in the rotational tow program. Within 30 days after completion of the investigation, the applicant shall be granted a franchise and placed on the rotational to program list unless, the police chief, in his or her sole discretion, finds any one of the following exists: (1) The Owner, Operator, applicant or their application demonstrates an inability or unwillingness to comply with the terms and conditions of the Federal, State, or local law, or the terms or conditions of the franchise agreement, or other terms or conditions that the police chief may require pursuant to this chapter. (2) The Owner, Operator, applicant, or the Police Department's experience with the Owner, Operator or applicant, demonstrates an inability or unwillingness to render prompt and efficient police - generated tow service. (3) The police chief determines that granting of a franchise to the applicant would not be in the public interest due to: any known history of lack of legal compliance, any known history of lack of compliance with past agreements with the city, or any financial condition that would affect prompt and efficient police - generated tow service. (4) The applicant has been removed from the rotational list within the last 24 months; (5) A material statement made in the application is untrue; (6) A fact exists of which the police chief has knowledge which would be cause for removal or suspension of the applicant from participation in the rotational tow program; (7) The applicant does not maintain a business location or storage facility within three miles of the city limits; (8) The Operator or applicant does not have the capacity to respond and arrive to the scene of a police - generated tow requests within the maximum allowed time [per 6.64.090(b)] upon receiving notification from the police department's communications division; (9) The owner, operator, or applicant has been convicted of any of the following: a stolen or embezzled vehicle; auto theft or larceny from a vehicle; any crime of physical violence; any illicit drug related offense; misdemeanor or felony driving while under the influence of alcohol, drugs, or any combination thereof or any other alcohol and /or drug related driving offenses; any obscene, indecent, or sex - related crime, or other crime of moral turpitude; except that the police chief may determine after reviewing supporting documentation that the conviction was of a sufficiently minor nature and a sufficiently extensive period of time has passed, that the application may be approved, notwithstanding the conviction. (10) The Rotational Tow Program list already consists of three tow Operators; (11) The applicant fails to sign a tow franchise agreement; or (12) The applicant does not have a valid business license (where required) or a tow vehicle permit issued by the city. (c) In granting any tow service franchise and entering into franchise agreements, the police chief may prescribe such terms and conditions, not in conflict with this chapter, that are determined by the police chief to further the public health, safety, and welfare. All participants in the Rotational Tow Program shall comply with all the terms and conditions of this chapter, those terms and conditions set forth in the franchise agreement with the city, and any other such terms and conditions required by the police chief in accordance with this section. (d) No more than three franchises shall be granted and active at one time in order to ensure that an adequate amount of police - generated tows are available to each franchisee. No provision of this chapter shall be deemed to require the police chief to grant any franchise if the police chief determines that grant of any such franchise is not in the best interest of the City and the public. (e) A franchisee shall not transfer, sell, sublet or assign the franchise, nor shall any of the rights or privileges therein be leased, assigned, sold in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, either by act of franchisee or otherwise, unless written authorization for such transfer, sale, subletting or assignment is obtained from the police chief. (f) Rights of City reserved. The grant of a franchise shall be subject to the right of the city, whether reserved in such grant or not, to make all regulations that shall be necessary to secure public safety and welfare, including the right to make and enforce all regulations reasonably necessary to secure adequate, sufficient, and proper public service. Every franchise granted shall be subject to the right of the City to prescribe and regulate the rates, fares, rentals, or charges made for the service rendered under such franchise, and to have full and free access, at any and all reasonable times, to all books, records, and papers of such franchisee with the right to examine the same and make duplicate copies of the same or any part thereof. 6.64.090 Use of rotational tow program list. (a) Except as herein provided, all police - generated tows originate from = the police department, communications division. The communications division is authorized to dispatch tows from the tow vehicle company next in order on the rotational list. If, however, the owner of the vehicle requests a particular tow service or a representative of an automobile association to which the owner belongs, the officer shall so direct that request to the police department, communications division. (b) In the event a tow vehicle does not appear at the designated point of tow within twenty minutes (or thirty minutes if the request for tow services is submitted between the hours of 6:00 am and 9:00 am on weekdays or 4:00 pm and 7:00 pm on weekdays) after the police department has notified the business to respond to a call, the police department has the right to call another tow vehicle from the towing service next in order on the rotational list. (c) In the event that the tow vehicle exceeds the maximum allowed response time, as noted in 6.64.090(b), administrative penalties will be assessed against the tow company. Any Operator that fails to respond or arrives anywhere from one to eleven minutes beyond the maximum response time will be assessed a basic administrative penalty which shall be in the form of a cash fine which will be equal to 25% of the basic tow rate. Any Operator that fails to respond or arrives in excess of eleven minutes beyond the maximum response time will be assessed an additional administrative penalty, which shall be in the form of a cash fine which will be equal to an additional 25% of the basic tow rate. This secondary fine is in addition to the basic penalty noted above. Penalties shall be imposed quarterly_ (d) Extenuating circumstances that necessitate a delayed response or inability to respond will be taken into consideration, prior to the imposition of the penalties, at the direction of the police department. (e) If the tow company calls the police department within ten minutes of the communications division notification to respond to a call and advises of an inability to respond, no fine or penalties will be imposed and the next tow company on the rotational list will be called. (f) Operators that abuse this provision and are habitually late, habitually fail to respond, frequently make notification of an inability or unwillingness to respond, or selectively make notification of an inability or unwillingness to respond to certain classifications of tows shall be subject to suspension or removal from the rotation tow list and /or cancellation of the franchise agreement. (g) Any tow company that accumulates excessive fines (which is defined herein as equal to or more than two times the basic tow rate) during any portion of the calendar year, shall be suspended from the rotational tow program until the fines are paid. All outstanding fines shall be paid in full prior to the renewal of any business license or tow permit. Failure to pay any fines due will result in the withholding of the business license and /or tow permit required for the next calendar year. (h) The fines may be paid in the form of business checks, cash, certified check or money order. Fines incurred by the tow company shall not be passed on to the person(s) requiring/requesting the service, of the permittee or their agents, in any manner. The imposition of fines and administrative penalties may be appealed to the chief of police. 6.64.100 Grounds for removal from rotational tow program. (a) Should the police chief determine there is sufficient reason to authorize the suspension or termination of a franchise, the police chief shall issue a written order to the franchisee clearly stating the reasons for such suspension or termination. The following constitute grounds for suspension or termination of a franchise: (1) The approval of the application was obtained by fraud or by concealment of material facts or facts which, if known, would have caused the disqualification of the applicant; (2) The franchisee has violated any of the requirements of State or federal law, this chapter, or any subsequent rule and regulation established pursuant hereto; (3) The franchisee has been convicted of any of the offenses listed in section 6.64.085(b)(9); (4) The franchisee knew or should have known that its driver or drivers have violated the provisions of the Vehicle Code and have failed to take corrective action within a reasonable time; (5) The franchisee fails to perform the duties established by this chapter and the tow franchise agreement by any of the following: fails to timely answer calls, fails to respond to calls within mandated time periods, and fails to maintain clean and orderly storage facilities; (6) Non - payment of a franchise per - vehicle fee in full within thirty days of its due date; (7) The tow vehicle service is found to have charged above the posted rate; (8) The services rendered or the cooperation which the city has received are unsatisfactory and /or inadequate as a matter of public safety; or (9) The tow vehicle service has violated any of the terms of the franchise agreement with the city. (b) Hearing. The police chief, upon learning of grounds for removal, shall, by written notice, inform the franchisee of the action of removal and the grounds for removal. Within 10 days after receipt of the written notice, the franchisee shall have the right to file a written request for a hearing before the police chief. If the franchisee files a timely hearing request, the police chief or the chief's designee shall set a time and place for the hearing. All parties involved shall have the right to offer testimony, documents, and tangible evidence at a hearing on the issues and to be represented by counsel. (c) Appeal. Within ten business days after receiving notification that any person has been denied participation in the rotational tow program or suspended or removed from the rotation list, the applicant shall have the right to appeal such order by filing a written notice of appeal by following the procedure set forth in Section 6.64.240 of this code. 6.64.105 Towing rates. (a) The maximum rates to be charged for tow vehicle Operators for all public property tows and police initiated private property tows shall be determined by the police chief. In establishing the maximum rates for public property and police initiated tows, the police chief shall first consult with and obtain recommendations from one representative selected by the rotation tow vehicle company Operators. Upon receiving said advice and recommendations, or following a reasonable effort to obtain same, the police chief will determine the towing rates. The action of the police chief may only be appealable to the city manager. Said appeal must be filed, in writing, within ten days of the police chief's final decision on the proposed rates. The written appeal must set forth the grounds for such appeal. Notwithstanding Chapter 1.28, the city manager's decision shall be the final decision of the city. Tow vehicle companies shall not petition for rate changes on an individual basis except as provided for in Section 6.64.110. (b) In determining the maximum rates, the police chief may meet with the designated representative of the rotation tow vehicle company at least once biennially (every two years),- No other rates for all public property tows and police initiated private property tows will be allowed, except as provided in this chapter, without the permission of the police chief. (c) Any tow vehicle company removing a vehicle from private property at the request of the property owner or his/her agent shall not charge any fee in excess of those fees authorized by the Department of California Highway Patrol tow service agreement application in South San Francisco. (d) The rates established shall be posted and displayed so that they are clearly visible to customers in each of the garage and storage facilities of all permittees. 6.64.200 Tow vehicle driver's permit— Grounds for refusal, suspension, or revocation. (a) No permit shall be granted to any person under the age of eighteen years. (b) The permittee's driver's license is expired, suspended or revoked, or the permittee has been arrested and convicted of any of the following: a stolen or embezzled vehicle; auto theft or larceny from a vehicle; any crime of physical violence; any illicit drug related offense; misdemeanor or felony driving while under the influence of alcohol, drugs, or any combination thereof or any other alcohol and /or drug related driving offenses; any obscene, indecent, or sex - related crime, or other crime of moral turpitude; except that the police chief may determine after reviewing supporting documentation that the conviction was of a sufficiently minor nature and a sufficiently extensive period of time has passed, that the application may be approved, notwithstanding the conviction. SECTION 2. ADOPTION OF FRANCHISE AGREEMENT The form of the franchise agreement into which the Police Chief may enter on behalf of the City, pursuant to authority granted in amended section 6.64.080(a) as described in SECTION 1 of this Ordinance, shall be substantially similar to the form agreement attached to this Ordinance, and incorporated by reference, as if set forth fully herein. SECTION 3. SEVERABILITY If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of South San Francisco hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. SECTION 4. PUBLICATION AND EFFECTIVE DATE Pursuant to the provisions of Government Code Section 36933, a summary of this Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (a) publish the summary, and (2) post in the City Clerk's office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk's office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days after its adoption. * * * * * Introduced at a regular meeting of the City Council of the City of South San Francisco, held the 12 day of October, 2011. Adopted as an Ordinance of the City of South Francisco at a regular meeting of the City Council held the 26 day of October, 2011 by the following vote: AYES: Councilmembers Pedro Gonzalez, and Karyl Matsumoto, Vice Mayor Richard Garbarino and Mayor Kevin Mullin NOES: None ABSTAIN: None ABSENT: Councilmembers Mark Addiego ATTES A i y Cle� As Mayor of the City of South San Francisco, I do hereby approve e foregoing Ordinance this 26 day of October, 2011. Kevin Mullin, Mayor