TC Ord. No. 2009-10 Adopting regulations for booting vehicles on private property though the repeal and reeactment of chapter 5.12 of the avon muni code and adopting penalties for violationsTOWN OF AVON, COLORADO
ORDINANCE NO. 09-10
SERIES OF 2009
ADOPTING REGULATIONS FOR BOOTING VEHICLES ON PRIVATE PROPERTY
THROUGH THE REPEAL AND REEACTMENT OF CHAPTER 5.12 OF THE AVON
MUNICIPAL CODE AND ADOPTING PENALTIES FOR VIOLATIONS
WHEREAS, private property owners within the Town desire to hire private parking
enforcement companies to enforce their parking regulations; and
WHEREAS, such enforcement methods include, but are not limited to, the placement of an
immobilizing device, commonly known as a "Denver Boot ", on the wheel of a vehicle
( "booting "); and
WHEREAS, the use of booting by private parking enforcement companies is not currently
regulated by the State of Colorado and the District Attorney for the Fifth Judicial District in the
State of Colorado has issued an advisory opinion that booting of a vehicle by a private party
without the consent of the vehicle owner constitutes Second Degree Criminal Tampering
pursuant to C.R.S. § 18 -4 -506 and criminal motor vehicle tampering pursuant to C.R:S. §42 -5 -03;
and
WHEREAS, pursuant to C.R.S. §31 -15 -103 and §31 -15 -104, and pursuant to the home rule
powers of the Town of Avon (the "Town"), the Town Council has the power to adopt ordinances
for promotion and preservation of public health, safety, and welfare, including the. authority to
regulate parking enforcement companies that immobilize and boot motor vehicles without the
consent of the owner of the motor vehicle within the municipal limits of the Town; and
WHEREAS, booting companies perform a function similar to that of commercial towing
companies and the Town desires to hold booting companies to standards similar to commercial
towing companies; and
WHEREAS, the Town Council finds that enactment of regulations that license and permit
parking enforcement companies and permit the limited use of immobilization and booting of
motor vehicles will enhance the ability of private property owners to enforce parking regulations
on their property, which will thereby improve the function of private parking areas and
compliance with parking requirements for developed properties as approved and regulated by the
Town under the Town's land use regulations, and therefore the Town Council finds that passage
of this Ordinance will promote and preserve the health, safety and welfare of the Avon
community;
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
SECTION 1. RECITALs INCORPORATED. The above and foregoing recitals are incorporated
herein by reference and adopted as findings and determinations of the Town Council.
SECTION 2. . ENACTED. Chapter 5.12 of the Town of Avon Municipal Code is hereby
repealed in its entirety and re- enacted to read as follows:
CHAPTER 5.12
Vehicle Impoundment
5.12.010 Definitions.
As used in this Chapter, the following words and terms shall be defined as
follows:
Boot or Booting means to place any immobilization device upon a motor vehicle
not registered to the person or company placing the immobilization device, for
purposes of parking violation enforcement.
Chief means the Chief of Police of the Town, or his or her designee or designees.
Operator means any person operating a towing vehicle or applying an
immobilization device.
Normal business hours means 8:00 AM to 5:00 PM, Monday through Friday,
excluding holidays recognized by the Town of Avon.
Parking enforcement company means any person, operator, property owner,
property manager or company who immobilizes or boots a vehicle for the purpose
of enforcing private property parking rules or otherwise protecting private
property from trespass by a vehicle.
Towing list means a list maintained by the Police Department containing the
names of those wreckers licensed by the Town who are to be requested by the
Police Department to respond to the scene of accidents or emergencies involving
vehicles.
Towing vehicle means any vehicle used by a wrecker for the towing or
transporting of other vehicles (or other property) in the course of his or her
business.
Town manager means the Town Manager of the Town of Avon and his or her
designee or designees.
Wrecker means a person or company engaged in the business of, or offering the
services of, a vehicle wrecker or towing service, whereby motor vehicles are or
may be towed or otherwise removed from one place to another by the use of a
motor vehicle adapted to and designed for that purpose.
5.12.020 License — application — fee.
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(a) No wrecker shall have his or her name included on the towing list of the
Town and be requested by the Police Department to respond to the scene of an
accident or emergency for the purpose of towing a vehicle without first having
obtained a license from the Town Clerk.
(b) No parking enforcement company desiring to boot vehicles within the Town
of Avon may engage in booting operations without first having obtained a license
from the Town Clerk.
(c) Any license application for a wrecker or parking enforcement company, other
than a renewal thereof, shall be accompanied by a nonrefundable application fee
in the amount of four hundred dollars ($400.00). All applications for licenses,
including renewal, shall be made upon forms provided by the Town Clerk. The
wrecker or private enforcement company license application fee shall also serve
as the business license fee for the Town of Avon. Any wrecker or parking
enforcement company that has paid a business license fee and that has been issued
a business license by the Town of Avon on or prior to May 1, 2009 which is in
good standing and has not expired, shall not be required to submit a license
application fee in order to obtain a license in accordance with the provisions of
this Chapter 5.12 but shall be subject to the renewal provision set forth herein.
(d) An applicant for a parking enforcement company license that is a corporation,
partnership, association, firm or other business entity shall include verification
that the person designated on the application is authorized to represent ' such
business entity and hold the wrecker or parking enforcement license on behalf of
the business entity.
5.12.030 License — application — investigation.
Upon receipt of a license application and application fee under Section 5.12.020,
the Town Clerk shall forward the application to the Chief, who shall conduct such
investigation and criminal background check as is necessary to determine:
(a) That the applicant is a fit and proper person to conduct or work in the
proposed business, and has not been convicted of theft or embezzlement, any
offense involving the unlawful use, taking or conversion of a vehicle belonging to
another person, or a felony, or if the applicant is a corporation, that its officers,
directors and principal stockholders are of good character and of good business
repute and have not been convicted of theft or embezzlement, any offense
involving the unlawful use, taking or conversion of a vehicle belonging to another
person, or a felony;
(b) That a wrecker applicant has received and has currently in force a permit to
operate as a towing carrier from the Colorado Public Utilities Commission. The
failure of a wrecker to maintain a valid permit from the Public Utilities
Commission shall be grounds for denial of a license, or, if a license is in effect at
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the time, shall be grounds for revocation or suspension of the license as provided
in Section 5.12.090;
(c) That the wrecker or parking enforcement company has adequate, safe
equipment and an adequate recordkeeping system and can otherwise comply with
the rules and regulations promulgated by the Chief as provided in Section
5.12.080; and
(d) That the wrecker has currently in force public liability and property damage
insurance or surety bond providing coverage sufficient to meet the requirements
of the rules and regulations of the Colorado Public Utilities Commission
governing towing carriers; that the parking enforcement company has public
liability and property damage insurance or surety bond providing coverage of at
least $1,000,000.00 per occurrence.
5.12.040 License — application — decision - appeal.
The Chief shall return the application form to the Town Clerk within fifteen (15)
days together with his or her recommendation for the grant or denial of the
license. The Chief shall state the reasons for a recommendation of denial. The
Town Clerk shall then grant or deny the license as the circumstances warrant.
The applicant for a wrecker or parking enforcement company license may appeal
a decision by the Town Clerk to deny a license to the Town Council. A request
for appeal shall be provided in writing to the Town Clerk within ten (10) days of
the date of denial of the license application. The Town Council shall consider an
appeal of the Town Clerk's decision to deny a wrecker or parking enforcement
company application within thirty five (35) days of receipt of a proper and timely
written request to appeal a denial decision. The decision of the Town Council
shall be final.
5.12.050 License — grounds for denial, suspension or revocation.
It shall be grounds for denial, suspension or revocation of a wrecker or parking
enforcement company license for any person to knowingly provide false
information to the Town Clerk or to the Chief in or in conjunction with an
application for a license.
5.12.060 License — annual renewal fee.
The annual license renewal fee for a wrecker or parking enforcement company
shall be one hundred fifty dollars ($150.00) due upon the anniversary of the date
of issuance of the business license for such wrecker or parking enforcement
company.
5.12.070 License may not be required — emergencies.
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The Chief may permit wreckers not licensed by the Town to be called by the
Police Department to the scene of disasters, accidents or other emergencies when,
in the opinion of the Chief, the public health, safety and welfare require that such
action be taken.
5.12.080 Rules and regulations.
The Chief shall, within seven (7) days after the enactment of the ordinance
codified in this Chapter, set forth in writing such rules and regulations governing
the conduct of wreckers or parking enforcement company as are deemed
necessary to ensure the inhabitants of and other persons within the Town safe,
efficient and dependable towing or parking enforcement service. These rules
shall include, but not be limited to, the following:
(a) Equipment. The Chief shall specify equipment at least the equivalent of that
required by the rules and regulations of the Colorado Public Utilities Commission
governing towing carriers for wreckers and such other necessary equipment as
determined by the Chief. Parking enforcement company vehicles are required to
be clearly marked with the business name and Avon license number and must
have a blinking amber light on the top of or above the vehicle when engaged in
booting operations and the operators are required to wear reflective traffic safety
vests.
(b) Records. The Chief shall require sufficient record keeping to ensure
compliance with the terms of this Chapter and the rules and regulations as
promulgated.
(c) Personnel. The rules shall specify such steps as are necessary to determine
that the operators and employees of the wrecker or parking enforcement company
are of good character and otherwise fit to participate in towing or booting
operations within the Town, which shall be determined according to the same
standards for applicants set forth in 5.12.030 above. Employees engaged in
parking enforcement shall display a picture identification card containing: the
employee's picture, the employee's name, the employer's name, and the Avon
business license number.
(d) Rates. Rates shall be determined by the following procedures and
requirements:
(1) A schedule of reasonable rates to be charged by wreckers operating on the
Town's towing list shall be established by the Town Manager and it is unlawful
for any wrecker to charge rates other than as set forth in said schedule whenever
such wrecker provides towing service in response to a call from the Police
Department. The schedule of rates shall be set forth as a part of the rules and
regulations governing wreckers provided that such rates shall not be less than the
permissible rates published by the Public Utilities Commission as may be
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amended from time to time. The Town Manager shall annually review the rate
schedule to determine its adequacy and appropriateness and shall make such
changes as he or she deems necessary. In setting or revising rates, the Town
Manager shall give consideration to the rates charged for similar services in the
County. The rate schedule as set forth in the rules and regulations shall not apply
to towing services conducted by a wrecker when his or her services are not
rendered as a result of a request by the Police Department.
(2) A wrecker shall not charge rates higher than what is allowed by the Colorado
Public Utilities Commission for non - consensual tows. A parking enforcement
company shall not charge a boot removal fee higher than seventy -five percent
(75 %) of the rate allowed by the Colorado Public Utilities Commission for the
non - consensual tow of a motor vehicle with a GV WR of less than 10,000 pounds
when requested to remove the boot.
(3) If the owner, authorized operator, or authorized agent of the owner of a motor
vehicle that is parked without the authorization of the property owner attempts to
retrieve the motor vehicle while the wrecker or booting operator is still with the
vehicle, a "drop charge" shall not be higher than what is established by the
Colorado Public Utilities Commission.
(4) There shall not be any boot removal fee assessed if the boot cannot be
removed within ninety (90) minutes from the time of the request for removal by
the vehicle owner or vehicle owner's designee. Any dispute regarding the time
frame proscribed herein may be refuted based on the phone records for the
parking enforcement company. A boot applied at the direction of a Town of
Avon police officer shall be released at the direction of a Town of Avon police
officer.
(e) Authority of Chief. The Chief shall from time to time formulate, publish and
promulgate such other rules and regulations as are reasonably necessary to
effectuate the purpose of this Chapter, including, but not limited to the type of
security required at the vehicle storage location, the hours during which the
vehicle storage location will be open for the redemption of vehicles by their
owners, the persons to whom towed vehicles may be released and the procedures
to be followed in connection with the release of towed vehicles and the payment
of fines, towing fees and storage charges. Any rules and regulations promulgated
by the Chief shall not conflict with or materially change any provision of this
Chapter 5.12. The Chief may initiate a request for proposal and select a
designated wrecker service or parking enforcement company to provide service
for police requested impounds. The Chief shall post notice of any proposed rules
in the official places of posting notices adopted by the Town, shall post notice on
the Town's website, and shall mail notice to all licensed wrecking and parking
enforcement companies at least twenty (20) days prior to adoption of such
proposed rule or regulation by the Chief and the Chief shall consider all
comments received on the proposed rules and regulations prior to taking any
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action to adopt the proposed rules and regulations. The Chief shall provide
written notice of adoption of any rules and regulations to all persons who provide
comments in writing along with a copy of the adopted rules or regulations and a
statement that persons with standing (defined as residents, property owners or
business owners in Avon) may appeal the decision to adopt the rule or regulation
to the Town Council. Any person with standing may appeal the decision of the
Chief to adopt a rule or regulation by providing a request to appeal the decision in
writing to the Town Clerk within ten (10) days of the date of adoption of the rule
or regulation by the Chief. Failure to provide a request (defined as received by
the Town) to appeal a rule or regulation adopted by the Chief within ten (10) days
shall be deemed a forfeiture and waiver of all rights to appeal such decision to the
Town Council. The Town Council shall consider all appeals of the decision of
the Chief to adopt a rule or regulation which are properly and timely provided to
the Town and Town Council's action shall be final. During the pendency of an
appeal, the proposed rule or regulation shall not take effect.
5.12.090 Suspension or revocation — procedure.
Upon a showing that a wrecker or parking enforcement company has violated the
provisions of this Chapter, a Hearing Officer's order or the rules and regulations
provided for in Section 5.12.080, the Town Council may suspend for a period of
up to six (6) months or revoke the license of any wrecker or parking enforcement
company. Prior to taking any action to suspend or revoke a wrecker or parking
enforcement company license, the Town shall provide at least ten (10) days prior
written notice to the licensee stating the grounds and allegations for any action to
suspend or revoke a license and the Town Council shall conduct a hearing
thereon. Service of the notice shall be by personal service upon the wrecker or
parking enforcement company or his or her agent or by registered mail, return
receipt requested, sent to the business address of the operator as shown on his or
her license. The decision of the Town Council shall be final.
5.12.100 Written authorization to tow /immobilize — required — exceptions.
No wrecker or parking enforcement company licensed by the Town and no
operator shall commence or originate the towing or immobilization of a vehicle
within the Town without the written consent of the registered owner, legal owner,
person in control, driver or the authorized agent of any of them, or other person
having a legal right to possession of the vehicle, or from a police officer, save and
except under the following circumstances:
(a) A tow which is otherwise lawful may be commenced or originated -by a
person engaged in the business of towing vehicles provided that such person
notifies the Police Department of the Town within thirty (30) minutes of the tow.
Such notification shall include a description of the vehicle to be towed, the license
plate and VIN number if legible, the time of the tow, the destination of the tow
and the reason for which the vehicle is being towed.
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(b) The owner or person in lawful possession of private property, or the agent or
employee of either of them, may give written consent to have a parked vehicle
towed from such property when the vehicle is parked or obstructing a private
driveway or is on private property, without the express or implied consent of the
owner or person in lawful control of such a vehicle and shall comply with the
requirements of Subsection (a) of this Section 5.12.100 relating to notification of
the Police Department when the vehicle is towed.
(c) The owner or person in lawful possession of private property, or the agent or
employee of either of them, shall give written consent to a parking enforcement
company to immobilize vehicles for the purpose of parking violation enforcement
without the express or implied consent of the owner or person in lawful control of
such vehicle. The consent shall list the specific enforcement that is required and
the procedure to determine that a violation has occurred. A copy of the written
consent shall be given to the police department. Parking enforcement companies
and owners or persons in lawful possession of private property shall not boot or
immobilize vehicles on the basis of expired license plates. The parking
enforcement company operator shall maintain a daily log of the cars that are
booted by license plate, VIN number if legible, location, date and time and
provide that log to the Avon Police Department before the end of the business day
following immobilization of a vehicle during normal business hours.
(d) Private parking lots which contain one (1) or more parking spaces and for
which the property owner or designee use booting or towing of vehicles for
parking enforcement shall post a conspicuous sign on the property. Such sign will
provide notice, with reflective background, that unauthorized vehicles will be
booted or towed, and shall comply with the adopted rules and regulations for
signage.
5.12.110 Written notice of tow /immobilize — rates and hours.
(a) Notwithstanding any other provision of this Chapter, a licensed wrecker shall
receive a written authorization from the person authorizing a tow, prior to the
commencement of a tow originating within the Town, which authorization shall
list the services offered and the rates and charges required therefore. A copy of
such authorization shall be furnished to the person authorizing the tow. Such
copy shall list the name, address and telephone number of the wrecker's business
and the days and hours the business is open for the release of vehicles. Such copy
shall also be signed by the towing vehicle operator performing the authorized
service.
(b) After a boot is placed on any vehicle, the parking enforcement company shall:
(1) Provide a notice affixed to the vehicle in a conspicuous and obvious manner
containing the name, address, telephone number, and license number of the
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parking enforcement company that placed the boot on the vehicle, the amount of
the boot removal fee, the right to have the boot removed within ninety. (90)
minutes of contacting the parking enforcement company, the name of the property
owner or manager authorizing the boot, the signature of the parking enforcement
company operator or designee, and a description of the right to request a post -
seizure hearing under this Chapter 5.12;
(2) Maintain personnel authorized to remove any boot and release any vehicle to
its owner or driver upon the payment of any boot removal fee during such times
as required in this Chapter; and,
(3) Provide a receipt upon payment to the individual making the payment for
removal of the boot or release of the vehicle, listing the fees and advisement of
the right to request a post - seizure hearing for vehicle immobilization per 5.12.120.
(c) A parking enforcement company or wrecker shall not charge fees in excess of
the fees as listed in the fee schedule for booting or towing a vehicle.
(d) A parking enforcement company or wrecker shall not charge any fee related to
the impoundment of a vehicle that is not listed in the fee schedule.
(e) Charges for damages to booting equipment shall not be governed by this
section and shall not prevent the vehicle's release if scheduled fees are satisfied.
Damages or loss to parking enforcement equipment will be investigated using
other municipal and state statutes related to theft or criminal injury to property.
(f) The Town is authorized to audit the fees charged by a parking enforcement
company or wrecker licensed to do business in the Town of Avon upon
reasonable notice and at reasonable times for the purpose of verifying compliance
with this Chapter 5.12.
5.12.120 Postseizure hearing.
(a) The owner of a vehicle that has been immobilized pursuant to this article has
a right to a "post- seizure" administrative hearing in accordance with this Section
5.12.120 to determine whether there was probable cause to impound the vehicle.
(1) The hearing shall be petitioned and conducted in the same manner as outlined
in Title 10 of the Avon Municipal Code.
(2) The parking enforcement company shall have the burden to establish that
there was probable cause to impound or immobilize the vehicle.
(3) The losing party shall be assessed a minimum hearing cost of one hundred
dollars ($100.00) and shall be required to pay for translation services, if used
during the hearing. The Hearing Officer has the discretion to waive court costs.
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(b) When a vehicle is immobilized by a parking enforcement company the
vehicle owner or driver shall be informed of their right to a post - seizure hearing
with the following written statement:
The vehicle was booted by the property owner for a private property parking
violation as outlined in Avon Municipal Code, Title 5. The Town of Avon was
not involved in the action. The owner or operator of the vehicle may request a
hearing by one of the following methods:
(1) by providing a written request to the Municipal Court Clerk for a post - seizure
hearing to contest the booting within ten (10) days of the date the vehicle was
booted; or
(2) by appearing in person at the Municipal Court within a ten (10) calendar day
period from the date on which the boot was placed on the vehicle and requesting
an initial appearance before a Hearing Officer.
5.12.130 Expired License Plate
It shall be unlawful for a parking enforcement company to boot or immobilize a
vehicle on the basis of an expired license plate.
5.12.140 Compliance required.
It shall be unlawful for any private property owner or designee to immobilize any
motor vehicle that is trespassing or infringing upon the real property rights of that
property owner without complying with this Chapter 5.12 and upon conviction
thereof shall be guilty of a misdemeanor and shall be punished in accordance with
the provisions of Section 1.08.010 of this Code.
SECTION 3. CODIFICATION AMENDMENTS. The codifier of the Town's Municipal Code,
Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes
as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal
Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any
typographical error in the enacted regulations provided that such correction shall not
substantively change any provision of the regulations adopted in this Ordinance, such corrections
may include spelling, reference, citation, enumeration, and grammatical errors.
SECTION 4. SEVERABILITY. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
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subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
SECTION S. EFFECTIVE DATE. This Ordinance shall take effect seven days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
SECTION 6. SAFETY CLAUSE. The Town Council hereby finds, determines and declares that
this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
SECTION 7. NO EXISTING VIOLATION AFFECTED. Nothing in this Ordinance shall be
construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability
or right or affect any audit, suit or proceeding pending in any court, or any rights acquired, or
liability incurred, or any cause or causes of action acquired or existing which may have been
incurred or obtained under any ordinance or . provision hereby repealed or amended by this
Ordinance. Any such ordinance or provision thereof so amended, repealed or superseded by this
Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and
all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty,
liability, or right and for the enforcement of such penalty, liability, or right and for the purpose of
sustaining any judgment, decree or order which can or may be rendered, entered or made in such
actions, suits or proceedings, or prosecutions imposing, inflicting or declaring such penalty or
liability or enforcing such right, and shall be treated and held as remaining in force for the
purpose of sustaining any and all proceedings, actions, hearings and appeals pending before any
court or administrative tribunal.
SECTION 8. PUBLICATION BY POSTING. The Town Clerk is ordered to publish this Ordinance
by posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[remainder of page intentional left blank — signature page follows]
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INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 p.m. on
the 23rd day of June, 2009, at the Council Chambers of the Avon Municipal Building, located at
400 Benchmark Road, Avon, Colorado, on the 9d' da of June, 2009.
C G
Ronald C. Wolfe, Mayor
Published by posting in
Clerk at least seven dal
......... .
.O
ATTEST: S
Pa`fty/Mcl�enny, T
public places in Town and posting at the office of the Town
I action by the Town Council.
APPROVED AS TO FORM:
)OC-O'n �j6—
Eric Heil, Town A orney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on the 23rd day of June, 2009.
l
I /
Ronald C. Wolfe, Mayor
Published by postin n at least three public places in Town and posting by title at the
office of the To le .W a1`
CT:
:�`jGC� AT �
Patt Kenny, T
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Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Brian N. Kozak, Chief of Police AV/(
Date: May 20, 2009
Re: Ordinance # 09 -10, Amendment to Chapter 5.12, Vehicle Impoundment
Summary: Private property owners within the Town desire to hire private parking enforcement
companies to enforce their parking regulations by placing an immobilizing device, commonly known
as a "boot" on the wheel of vehicle in violation. The practice is not regulated by the State of
Colorado, and the District Attorney for the Fifth Judicial District has issued an advisory opinion that
booting by a private party without the consent of the owner constitutes Second Degree Criminal
Tampering pursuant to CRS 18 -4 -506. Booting companies perform a function similar to that of
commercial towing companies, and the Town desires to hold booting companies to similar standards
as specified in the amendment to Chapter 5.12. The amendments provide oversight and due
process for parking enforcement companies, allowing the companies to engage in booting
operations.
Background: In the summer of 2008 the Avon Police Department was informed that the
employees of a local property management company were immobilizing vehicles and collecting
unrecorded fees for individual profit. The property management company terminated the employees
and properly addressed the issue. However, the situation revealed that there is a potential for abuse
with private party booting.
In November of 2008 APD received numerous complaints from residents who have been booted by
AAA Boot, which was an unlicensed private parking enforcement company that began operations in
Avon. The major complaint was that there was no method to dispute the seizure of their vehicle in
the following situations:
• Vehicle owners alleged that they were entitled to park and had the proper permit.
• Vehicle owners alleged that they received permission to park from the property manager.
• Vehicle owners alleged that their car was immobilized for having expired license plates, when
their registration was in fact valid.
• Realtors and business contractors alleged that they were invited onto the property to complete
business when their vehicles were immobilized.
• Vehicle owners complained that they were not given a receipt for payment of impound fees.
• Vehicle owners believed that the boot removal fees were excessive.
• Towing companies questioning the legality of booting.
• AAA Boot sign compliance, the town had never approved AAA Boot signs.
The Chief of Police sent a request to all law enforcement agencies to inquire if any other jurisdiction
has dealt with private company booting issues. The City Attorney of Colorado Springs concluded
that the practice was a violation of criminal tampering and the Police Department enforced the
statute against a company that was booting vehicles in a shopping mail, causing the company to
cancel booting operations.
The District Attorney for the Fifth Judicial District provided an informal opinion that the private booting
of a vehicle was a violation of criminal tampering or vehicle theft and asked that the Chief of Police
inform those involved of the possibility of prosecution before any cases are submitted to his office.
On January 21, 2009 the Chief hosted a meeting with the various property managers engaged in
booting operations and with AAA Boot. The legal concerns about private booting were discussed
and the attendees were warned that future cases would be sent to the District Attorney for review.
The Police Department offered to assist with other options, such as creating an ordinance that would
provide oversight and due process or assist in providing parking enforcement on the private
property. In addition, the Chief requested legal opinions that contradicted that of the District Attorney
so that he could evaluate other options. There were no follow up contacts as a result of this meeting
and the private company booting continued.
The Chief of Police conducted research and discovered the high potential for abuse as depicted in
the attached articles (attachment A). On January 22, 2009 he made an official request through the
District Attorney for the Colorado Attorney General to provide a legal opinion on the issue
(attachment B).
Deputy Attorney General Thomas Raynes authored an unofficial opinion on February 19, 2009
(attachment C) that private booting was a violation of criminal tampering since vehicle owners must
be afforded due process as in a towing situation. In addition, he said that it is appropriate that
booting companies be held to similar standards as towing companies. The District Attorney
forwarded the opinion to Kursten Canada, attorney for the homeowners of Sunridge, Liftview and
Westlake. The booting operations continued and the Chief -, requested the Town Attorney to
research and provide guidance (attachement D), which was completed on March 5, 2009. The
Town Council requested that an ordinance be drafted that meet the Attorney General guidelines to
allow private booting.
On March 10, 2009 the District Attorney provided written criminal filing guidelines (attachment E) to
Chief Kozak. On March 11, 2009 Chief Kozak sent a letter to the property managers and AAA Boot
describing how and when APD would enforce the criminal tampering statute (attachment F).
On March 17, 2009 Kursten Canada acknowledged receipt of the letter in her reply correspondence
(attachment G). The booting operations continued on a reduced frequency. However, APD has not
received any recent complaints; thus, no cases have been submitted to the District Attorney for
prosecution.
The Town completed a draft ordinance and distributed it to interested parties for feedback before the
first reading scheduled for April 28, 2009. Mrs. Canada requested that the matter be continued to
allow more input. The Chief distributed a letter to interested parties to advise them of the upcoming
roundtable and commitment to assist in their needs (attachment H).
On May 5, 2009 Chief Kozak and Eric Heil hosted a roundtable meeting to seek feedback on a
proposed ordinance draft. The meeting was very productive and the input was incorporated into the
ordinance. In addition, Eric Heil has had several individual meetings with interested parties
concerning the draft ordinance.
Discussion: Pursuant to CRS 31 -15 -103 and 31 -15 -104, and pursuant to the home rule powers of
the Town of Avon, the Town Council has the power to adopt ordinances for the promotion and
preservation of public health, safety, and welfare, including the authority to regulate parking
• Page 2
)
enforcement companies that immobilize and boot motor vehicles without the consent of the owner of
the motor vehicle. The District Attorney and the Attorney General have given the opinion that
criminal tampering has not occurred if a parking enforcement company is operating in compliance
with a municipal ordinance that provides oversight and due process; similar to what is required for a
tow company. The ordinance amendment meets this requirement in the following sections:
5.12.020 — The parking enforcement company shall be licensed in the same manner as a towing
company is licensed by the Town of Avon.
5.12.030 — Since parking enforcement companies are seizing property of another and collecting
a fee, the owners and operators should be of good character. Therefore, a background check is
required, as is for towing operators.
There is a risk that the parking enforcement company could be accused of causing damage
when applying or removing boots and should be required to have insurance as is required with
towing companies.
5.12.040 and 5.12.050 — A license may be denied for applicants who do not have good
character or have provided false information. A denial may be appealed to the Town Council,
who has the final decision.
5.12.060 — Annual license fee required due to the cost of PD oversight and management.
5.12.070 — License exception for emergencies.
5.12.080 — The Chief may set rules governing the conduct of wreckers or parking enforcement
companies as specified in the ordinance. The ordinance outlines several basic rules:
(a) Parking enforcement companies shall be required to have their vehicles marked with the
company name, have a blinking amber light and operators shall wear a traffic safety vest when
engaged in booting operations. This requirement should create a safer environment for booting
operators and the public while enforcement vehicles stop in parking aisles. In addition, visible
vehicles assist in prevention and enable citizens to recognize that the vehicle immobilization is
being conducted as a legal activity.
(b) The Chief shall require the keeping of records to ensure compliance with the ordinance. The
records required will be specified at the time of application, but will include receipts for each boot
fee received and a log as outlined later in the chapter.
(c) As with towing operators, employees shall pass a background check to assure they are of
good character before allowed to seize property of another. Employees engaged in parking
enforcement shall wear an ID card, which verifies the person is properly licensed.
(d) Rates for the non - consensual impoundment of a vehicle shall be governed as it is for tow
companies. The rates for booting are based upon the rates allowed for towing by the Public
Utilities Commission. Parking enforcement companies may increase its fees as the Commission
increases the fees allowed for towing. The current PUC and initially proposed booting fees are
reflected below:
• Page 3
11
Action
Mountain Region Impoundment
Drop charge
Over 90 Minute response
Towing Bootinq
$156.80 $156.80
$64 $64
Impound lot No charge
An informal survey of the Avon property managers who have engaged in booting revealed that
the average removal fee has been $100.00. The Avon Police had not received complaints about
this fee. The property managers agreed that the fee should be a minimum of $100.00 for
deterrent. AAA Boot initiated a fee of $150, which was the highest found during the research.
This fee also caused many complaints to the Police Department.
An informal national search found that most booting legislation limit fees between $15 and $60.
Many of the articles cite that fees are limited to encourage towing since booting abuses have
occurred due to the ease of which a boot is applied to a car. In addition, many believe it is
unreasonable to allow the same fee for booting as can be collected for towing due to the extra
work and liability associated with towing.
A proposed alternative would be to limit boot removal fees to 75% of what the PUC allows for
towing, which would be a maximum fee of $117.60 and within the reasonable fee schedule that
many property managers have used. The staff requests Council input and guidance in this
issue.
5.12.090 — Suspension of license procedures completed by Town Council action.
5.12.100 — Requires a property owner to authorize booting as it does for towing. Tow
companies are required to report each tow to the police department at the time of the tow;
however, booting companies will only be required to provide a log of vehicles impounded before
the end of the following day. This is an important requirement designed to prevent the potential
for unreported booting or extortion of vehicle owners. A police list of observed boots can be
compared with the logs to assure compliance.
In addition, Current booting signage has not been approved, causing a lack of consistency and
esthetics. Under the ordinance signs shall comply with the adopted rules and regulations.
5.12.110 — Parking enforcement companies shall place a notice on a car advising how the boot
may be removed and outlining a method to request a postseizure hearing. In addition, APD may
audit the records to assure notices and receipts have been given to vehicle owners.
5.12.120 — Outlines the authority of the hearing officer and requires the losing party to pay for
the hearing cost.
5.12.130 — Requires compliance with the chapter.
Other Considerations: Frequent visitors (such as realtors and contractors) to the properties have
requested consideration for them to complete their business without being booted. They have
suggested that the property managers designate visitor spaces or be required to issue a warning
before booting. The property managers have expressed a desire not to make such allowances;
therefore, it has not been addressed in the ordinance.
• Page 4
q'
Financial Implications: The ordinance will cause the Police Department develop a case
management and audit system, resulting in unknown financial implications.
Recommended Motion: I move to adopt Ordinance 09 -10, an ordinance amendment to Chapter
5.12 of the Avon Municipal Code, with the following recommendations (or, as written):
Town Manager Comments:
• Page 5
J
City Council bans car booting
Subhead:
Private businesses may no longer punish illegal parking by booting cars
Publish Date:
06/18/2008
Reporter:
Anna Ewart [I]
Jason Cooke was essentially put out of business by the
city of Minneapolis. Limited Space, Cooke's car -
booting business, operated near the University in
private parking lots. However, booting vehicles for
parking violations is now illegal. "They just awarded a
monopoly to the towing companies," Cooke said.
Towing cars is still legal in Minneapolis, but Cooke
said those businesses do the same thing as businesses
that immobilize, or boot, vehicles. "I thought
Minneapolis was a progressive city," he said. "I guess
it's not." The City Council unanimously voted to ban
the practice June 6 in connection with a 2008 city
report on booting practices. The ban went into effect on
Saturday.
The report names several "predatory practices."
Booting companies were observed booting without
adequate signage and without proper authorization.
Several companies also charged unauthorized fees,
used intimidating behavior and threatened to have cars
towed if booting fees were not paid immediately,
according to the report. Richard Tuffs, a license
inspector for the city , said he has given 52 citations to
booting companies over the past three years, with fines
totaling about $25,000. Limited Space has gotten three
citations since 2006. Cooke said he paid the fees, but
called them "questionable."
Safety was also mentioned in the report because of the
confrontational nature of the business.
Booting had been a legal and licensed private industry
in Minneapolis from 1994 until now.
Booting will still be allowed in parking lots that aren't
large enough to allow tow trucks to maneuver. Ward 9
City Councilman Gary Schiff said Minneapolis was
one of few cities that allowed booting, and it had a
higher -than- average cap on booting fees - $103.50.
ATTACHMENT A
"We allowed just a huge industry to pop up," Schiff
said, noting that the University area had an especially
high number of complaints. Booting is legal, but
uncommon, in St. Paul, the report said. Schiff, a
University graduate, said he also plans to introduce a
resolution that would cap towing fees. Although
booting fees were lower than towing fees, he said the
city had more problems with booting companies.
"Towing is not as lucrative as booting because you
can't do it as fast," Schiff said. Both booting and
towing are private industries in Minneapolis, which
means the city itself doesn't boot cars.
Gene Buell, owner of Gopher Towing, said he was one
of the first people to get a booting license when the city
began allowing the practice. Gopher Towing never
received a citation, but Buell said he stopped booting
several years ago after unethical practices became
common. Often, businesses would boot too
aggressively and even pay off lot owners for calling in
vehicles that could be booted, he said. This type of
kickback has been illegal in Minneapolis since 2005,
but the practice might have continued anyway,
according to the city's report. Buell said he thinks
booting was probably better for motorists than towing,
but the industry was impossible to regulate.
Gabriel Hicks, who recently got his master's degree
from the University, had his car booted in 2006. Hicks
was parked illegally near campus for about an hour, but
he said the signs near the lot were unclear. The man
who booted him had an aggressive guard dog and
threatened to have him towed if he didn't pay the $100
fee. "It seems like it was unregulated," Hicks said of
the booting industry.
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http : / /seattlepi.nwsource.com /local /2203 85_clampingl 6.html
Car clamp firms getting the boot
One goes south as Legislature passes bill
Saturday, April 16, 2005
By CANDACE HECKMAN
SEATTLE POST- ]NTELLIGENCER REPORTER
A company that was ordered last month by the state to
stop clamping vehicles on Capitol Hill has moved its
operations to San Diego, in a state where officials have
also deemed the practice illegal. Total Parking
Solutions, a Seattle -area company, has been operating
without a city business permit, according to officials with
the Treasurer's Office in San Diego. Lot attendants have
been demanding that vehicle owners pay $280 to remove
boots from cars parked in business parking lots. The
company, owned by Josh Moultray, a 23- year -old
Mercer Island man, had been charging $195 to release
booted cars parked in private parking lots in Seattle.
Private parking lots are the ones outside of businesses
where spaces are generally reserved for customers of
those businesses.
Moultray, who apparently also runs a company called
Seattle Bread Service, did not return calls for comment.
State licensing officials, with help from the Seattle Police
Department, investigated Total Parking Solutions earlier
this year and issued a temporary cease - and - desist order
against the company. Attorneys for the state Department
of Licensing argued that immobilizing a vehicle with a
clamp device was impounding -- an "impound in place."
Only registered tow -truck operators are allowed to
impound vehicles in Washington. Because none of the
clamping firms under investigation by state regulators
has a tow -truck operator's license, none was allowed to
use a boot. Furthermore, attorneys said, tow -truck
operators are not allowed to perform impounds "in
place."
Last week, officials won a permanent injunction against
another booting business, Clampdown Washington,
which had originated clamping services in the Capitol
Hill neighborhood two years ago. Seattle police have not
been called to booting incidents since the orders were
issued, said department spokesman Sean Whitcomb. If it
happens again, officers will order the boot removed and
make a report.
Police were called to respond to the incidents several
times, and at least twice ordered the attendants to remove
the clamps, according to administrative court documents.
Also last week, state lawmakers passed a bill that would
specifically prohibit booting. The law, which would go
into effect in July, makes immobilizing a vehicle with
clamps a misdemeanor that could lead to a year in jail
and a $5,000 fine.
Clampdown had been planning to sue the state for the
right to boot vehicles on private property until the bill
was passed. "If clamping were illegal, then why did they
have to pass a bill to make it illegal ?" said Jason
Rassaian, owner of Clampdown Washington. "They
knew we were going to win our case. That's why they
moved so quick to pass a law."
The bill was introduced in February and moved quickly
through the state House and Senate. It was delivered to
the governor's office this week, and Gov. Christine
Gregoire is expected to sign the bi(j on Monday.
Regardless of Washington law, however, California
Attorney General Bill Lockyer decided last August that
clamping on private property is prohibited by state
vehicle - tampering laws.
Lockyer's opinion was issued in response to a company
that had begun booting cars in a Ventura County parking
lot near a hospital and discount store, said Jeff Bennett,
chief deputy district attorney in the county. He said the
parking attendants charged $85 to remove the clamps, a
small amount compared with recent charges in San
Diego, but high for his local area. "If you're shopping at
the 99 -cent store, it's like extortion," Bennett said.
Tisha McMurry, whose BMW X5 was booted at a
restaurant parking lot near the beach on Sunday, reported
the same to San Diego police. And like vehicle owners
in Seattle a couple of months ago, she was told by the
parking attendants to sign a contract waiving her right to
dispute the charge with her credit -card company. "I
didn't sign it. I wrote a bad word on the line," she said.
"I'm kind of embarrassed now, but I was just so mad."
She said that she is a regular user of the parking lot,
which charges $5 an hour and posts an honor box with
numbered slots. She paid $5, but came back more than
an hour later.
An employee of the restaurant, Sam's By The Sea, said
that Total Parking Solutions had a previous relationship
with the property owner, but "something happened" and
that the company hasn't been booting since Wednesday.
Connecticut Attorney General's Office
Press Release
Regulations Proposed For Booting Vehicles
March 1, 1999
Attorney General Richard Blumenthal today proposed legislation that would impose
regulations on booting of motor vehicles to prevent abuses by private companies.
The legislation is in response to complaints received by the Attorney General's Office
about private property owners hiring companies to boot vehicles. One company, Quality
Towing in Norwalk, booted vehicles in a shopping center parking lot and then demanded
$125 to release the vehicle.
"It operated as a law unto itself -- a modern day horse thief, holding citizens hostage and
shaking them down for cash," Blumenthal testified before the Legislature's
Transportation Committee. "To call this company Quality Towing was wrong on both
counts."
The state has sued Quality Towing -under the Connecticut Unfair Trade Practices Act for
numerous violations. The company was not registered as a tow company by the state and
booted more than 200 cars in a shopping plaza parking lot.
"To give you a sample of how Quality Towing worked, when one individual car owner
returned to her car and found it booted, she was quickly approached by two men in a car
with New York state license plate. They demanded that she pay $125 by cash or Discover
card to release her vehicle and that she sign a paper waiving all rights to challenge or
contest the legality of the booting or the exorbitant amount of the fee," Blumenthal
testified. "In short, this scheme had all the elements of a classic shakedown."
The proposed legislation would require the company to notify police when booting;
prohibit the charging of a consumer for storage for any time prior to the notification of
the police; regulate rates by the state Department of Motor Vehicles and allow reasonable
access to recover the motor vehicle.
to
HEART of the VALLEY
January 22, 2009
Mark D. Hurlbert
District Attorney for the Fifth Judicial District
P.O. Box 488
Eagle, Colorado 81630
ATTACHMENT B
Police Department
Post Office Box 975
0001 Lake Street
Avon, Colorado 81620
iv Inv avonpolice. org
Subject: Request of the Attorney General's Opinion for Private Company Booting.
Dear Mr. Hurlbert,
main 970.748.4040
fax 970.845.7098
A private property vehicle booting company began operation in Avon several weeks ago.
Various property managers have contracted the booting company to patrol their lots and
look for violations of the posted parking restrictions or violations of the association rules
(such as a requirement to have currently registered license plates on a vehicle). If
violations are observed the company will immobilize (boot) the vehicle, preventing its
movement until a fee of one - hundred and fifty to two - hundred dollars ($150 -200) is paid
directly to the booting company.
The Avon Police Department has received numerous complaints from citizens who have
had their cars booted. They have inquired into the legality of the seizure of their vehicles
by a private company. Many of the vehicle owners claim that they were not in violation
of the private rules or did not have knowledge of them. However, it is alleged that the
booting company demanded full payment before the vehicle was released to the owner.
At times the owner was unable to pay the fee and the vehicle remained seized by the
private company until the payment was made, restricting the vehicle owner from going to
work. Vehicle owners have questioned if the booting company has committed extortion
or theft by seizing their property without any opportunity of due process and by
demanding payment without any oversight.
On the other hand, the property managers argue that they have the right to regulate traffic
on their property. In fact, the Avon Municipal Code allows the property owners to post
parking restrictions and permit the police to issue parking citations for those violations.
They assert a right to control their property and the vehicles on their property, especially
when the vehicles have trespassed. In deed, the use of the booting service has greatly
assisted the property owners in controlling traffic. They compare the use of the boot to
towing with it being less onerous.
In truth, booting should not be compared to towing for the following reasons. Tow
companies are strictly regulated by the Public Utilities Commission. They are required to
Page 1
t%
be licensed, inspected and audited. Their fees are regulated so they are not allowed to
charge unreasonable costs. Disputes about the legality of tows are reviewed by the
commission and an independent judge. In addition, the regulations state that they shall
release a vehicle to the owner upon demand during normal business hours for a non-
consensual tow. In fact, several of the local tow company owners have asked how it is
permissible for a booting company to demand payment for a non - consensual impound
when they are not permitted to do so.
The tow companies are regulated for very valid reasons. They are impounding property
of another, and the government must assure that people's rights are protected in the
process. However, there are no regulations or oversight for private booting companies
the following questions are left unanswered: At what point is it considered unfair or
unreasonable debt collecting by the booting company? Is the person collecting the debt
of good moral character? If a person believes their property was unlawfully seized, how
do they have independent review?
As an example, it was discovered that last year the employees of a local apartment
complex were charging an increased fee of two - hundred dollars ($100) to remove the
boots applied to the cars belonging to residents of a certain cultural background, who
were believed to be apprehensive to alert authorities. The apartment management
investigated the allegations and terminated those employees. My fear is that unrestricted
booting practices may lead to violations of civil rights.
There are not any laws in Colorado that deal with private company vehicle
immobilization. Research revealed that those states that allow private property booting
also require oversight. Several states have deemed private property booting to be illegal
due to a lack of due process, which is required when seizing property. Washington's
state law (46.55.300) states that a property owner shall not immobilize any vehicle.
On the other hand, several municipalities in Colorado, such as Avon, permit the booting
on private property by the Police Department after the vehicle owner failed to respond to
parking citations and warning letters sent to the registered owner. The vehicle owner also
has a right to a probable cause hearing before the Municipal Judge. The Avon Police
Department has offered this service, which involves due process, to the property
managers. However, the property managers want to continue their current practice of
authorizing the private company to boot alleged violators.
Colorado Revised Statute 18 -4 -401 specifies that a person commits theft when he
knowingly obtains or exercises control over anything of value of another without
authorization and demands any consideration to which he is not legally entitled as a
condition of restoring the thing of value to the other person. The question at hand is what
gives the private booting company "authorization" to control property. The property
managers assert that they give the authorization, while the vehicles owners believe that
they can only give the authorization in absence of due process.
Page 2
2.2_
California has a law that is very similar to Colorado's theft statute. California's Attorney
General Bill Lockyer concluded in 2004 that a private company, acting pursuant to a
contract with a property owner, may not immobilize a vehicle that is impermissibly
parked in a private parking lot by affixing a boot device to the vehicle. The published
opinion is attached.
Since this is an issue that affects all citizens in Colorado, I request that you seek a written
opinion from Attorney General Suthers. I would request that we receive a response in a
timely fashion since our officers are being forced to deal with this unresolved issue of the
law on a daily basis, and are tasked with protecting the rights of all those involved.
In the meantime, it will be the policy of the Avon Police Department to respond to these
calls and treat them as a civil matter by keeping the peace. Officers will generate a report
and forward them to your office if either party desires prosecution for an alleged offense.
Sincerely,
Brian N. Kozak
Chief of Police
Page 3 23
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
OPINION : No. 03 -1204
of August 12, 2004
BILL LOCKYER
Attorney General
SUSAN DUNCAN LEE
Deputy Attorney General
THE HONORABLE GREGORY D. TOTTEN, DISTRICT ATTORNEY,
COUNTY OF VENTURA, has requested an opinion on the following question:
May a private security firm, pursuant to a contract with a property owner,
immobilize a vehicle that is impermissibly parked in a private parking lot by affixing a
"boot" device to the vehicle?
CONCLUSION
A private security firm, acting pursuant to a contract with a property owner,
may not immobilize a vehicle that is impermissibly parked in a private parking lot by
affixing a "boot" device to the vehicle.
1
03 -1204
L�-
ANALYSIS
Scarcity of convenient parking spaces is a familiar source of frustration for
many drivers and property owners in cities and towns throughout California. The frustration
may become particularly acute in the case of a business that maintains free off - street parking
spaces for the use of its customers and clients, such as a medical facility, restaurant, or
theatre, or for an apartment complex or condominium development that maintains free
parking spaces for the use of its residents and their visitors. When available parking spaces
in an area are limited in number, drivers sometimes use these "free" parking spaces on
private property even when they are not patronizing the business in question or visiting a
resident in the development. Unauthorized parking imposes a burden both on the owners
of the parking lots and on their customers and visitors.
The question presented for resolution is whether a private security firm,
pursuant to a contract with a property owner, may immobilize a vehicle that is impermissibly
parked in a private parking lot by affixing a "boot" device' to the vehicle. We conclude that
a private security firm may not do so.
Vehicle Code section 108522 provides:
"No person shall either individually or in association with one or more
other persons, wilfully injure or tamper with any vehicle or the contents
thereof or break or remove any part of a vehicle without the consent of the
owner."
We believe that placing a "boot" on a vehicle's wheel in order to immobilize the vehicle
would constitute "tampering" for purposes of section 10852. In People v. Anderson (1975)
15 Cal.3d 806, 810, the Supreme Court interpreted the scope of section 10852 as follows:
An accepted definition of `tamper' is to `interfere with.'
(Webster's New World Diet. (2d College ed. 1974).) Interference includes
conduct which is broader in scope than merely damaging a vehicle, for it
encompasses any act inconsistent with the ownership thereof...."
` A "boot," or "Denver boot," is a large metal clamp that attaches to a vehicle's wheel, preventing
the vehicle from being driven. (See Saukstelts v. City of Chicago (7th Cir. 1991) 932 F.2d 1171, 1172.)
Z All references hereafter to the Vehicle Code are by section number only.
2
03 -1204
,Z ) —
Immobilizing a vehicle with a "boot" would be inconsistent with the vehicle owner's use and
enjoyment of the vehicle; thus, it would be prohibited under the general terms of section
10852.3
Significantly, the Legislature has enacted several statutes to provide a legal
means for preventing the impermissible parking of vehicles on private property. (See People
v. PKS, Inc., supra, 26 Cal.App.4th at pp. 406 -407; People v. James (1981) 122 Cal.App.3d
25,36-38; United Stanford Employees v. Board ofTrustees (1977) 67 Cal.App.3d 319, 323.)
Section 22658, subdivision (a), states:
"Except as provided in Section 22658.2, the owner or person in lawful
possession of any private property, within one hour of notifying, by telephone
or, if impractical, by the most expeditious means available, the local traffic
law enforcement agency, may cause the removal of a vehicle parked on the
property to the nearest public garage under any of the following
circumstances:
"(1) There is displayed, in plain view at all entrances to the property,
a sign not less than 17 by 22 inches in size, with lettering not less than one
inch in height, prohibiting public parking and indicating that vehicles will be
removed at the owner's expense, and containing the telephone number of the
local traffic law enforcement agency. The sign may also indicate that a
citation may also be issued for the violation.
"(2) The vehicle has been issued a notice of parking violation, and 96
hours have elapsed since the issuance of that notice.
"(3) The vehicle is on private property and lacks an engine,
' Although "the consent of the owner" prevents the application of section 10852's prohibition, we
do not believe that a sign placed at the entrance to a parking lot describing the consequences of placing a
"boot" on an impermissibly parked vehicle would constitute a vehicle owner's "consent" to immobilizing his
or her vehicle as described on the sign. (See Wright v. County of Sonoma (1909) 156 Cal. 475, 477 -478
[taking water from well did not establish "acceptance" or "consent" to payment for the water as specified on
posted sign]; Sorg v. Fred Weisz & Associates (1970) 14 Cal.App.3d 78, 81 -82 [use of property "did not
constitute acceptance ofthe price named by the owners" for such use specified in letter]; Russell v. Union Oil
Co. (1970) 7 Ca1.App.3d 110, 114 -115 [use of property did not constitute "assent or consent" to payment
terms for such use contained in letter]; Sherman v. Associated Telephone Co. (1950) 100 Cal.App.2d 806,
807 -808 [use of property for telephone lines did not establish agreement to pay sum for such use specified
in letter]; Pacific States Corporation v. Arnold (1914) 23 Cal.App. 672, 674 -675 [use of property did not
establish "assent" to terms of rent for such use specified in letter].)
3 03 -1204
-�6
transmission, wheels, tires, doors, windshield, or any other major part or
equipment necessary to operate safely on the highways, the owner or person
in lawful possession of the private property has notified the local traffic law
enforcement agency, and 24 hours have elapsed since that notification.
"(4) The lot or parcel upon which the vehicle is parked is improved
with a single - family dwelling."
Section 22658.2 provides:
"(a) Except as provided in subdivision (b), an `association,' as defined
in subdivision (a) of Section 1351 of the Civil Code, of a common interest
development, as defined in subdivision (c) of Section 1351 of the Civil Code,
may cause the removal of a vehicle parked on that property to the nearest
public garage if all of the following requirements are satisfied:
"(1) A sign not less than 17 by 22 inches in size with lettering not less
than one inch in height appears at each entrance to the common interest
development and contains both of the following:
"(A) A statement that public parking is prohibited and all vehicles not
authorized to park on the common interest development will be removed at the
owner's expense.
"(B) The telephone number of the local traffic law enforcement agency.
The sign may also indicate that a citation may be issued for the violation.
"(2) If the identity of the registered owner of the vehicle is known or
readily ascertainable, the president of the association or his or her designee
shall, within a reasonable time, notify the owner of the removal by first -class
mail. If the identity of the owner of the vehicle is not known or ascertainable,
the president of the association or his or her designee shall comply with
subdivision (c) of Section 22853.
"(3) The president of the association or his or her designee, gives or
causes to be given, notice of the removal to the local traffic law enforcement
agency immediately after the vehicle has been removed. The notice shall
include a description of the vehicle, the license plate number, and the address
from where the vehicle was removed.
4
03 -1204
L7
"(b) The association may cause the removal without notice of any
vehicle parked in a marked fire lane, within 15 feet of a fire hydrant, in a
parking space designated for handicapped without proper authority, or in a
manner which interferes with any entrance to, or exit from, the common
interest development or any separate interest contained therein.
........................ ...............................
Section 22952 additionally provides:
"Every person engaged in the operation of off - street parking facilities
is guilty of a violation, who:
"(a) Tows or removes or authorizes the towing and removal of any
vehicle within 24 hours of the expiration of the period for which a particular
fee is charged. This subdivision shall not affect or limit any parking lot
operator from charging parking fees in accordance with his posted schedule
for the additional time such vehicle is parked.
"(b) Tows or removes or authorizes the towing and removal of any
vehicle when such parking facilities are held open for public use and there was
no attendant on duty or other facilities permitting the patron to pay or remit the
parking charges at the time such vehicle was first parked. This subdivision
shall not affect or limit any parking lot operator from charging parking fees in
accordance with his posted schedule for the time such vehicle is parked."
Finally, section 22953 states:
"(a) Every owner or person in lawful possession of any private property
which is held open to the public, or a discernible portion thereof, for parking
of vehicles at no fee, shall not tow or remove, or cause the towing or removal,
of any vehicle within one hour of the vehicle being parked.
"(b) Notwithstanding subdivision (a), a vehicle may be removed
immediately after being illegally parked within 15 feet of a fire hydrant, in a
fire lane, or in a parking space or stall legally designated for disabled persons.
"(c) Subdivision (a) does not apply to property designated for parking
5
03 -1204
at an apartment complex, or to property designated for parking at a hotel or
motel where the parking stalls or spaces are clearly marked for a specific
room."
Accordingly, the Legislature has expressly authorized the towing of a vehicle that is
impermissibly parked on private property.
In only one instance has the Legislature authorized immobilizing an
impermissibly parked vehicle. Section 22651.7 provides:
"In addition to, or as an alternative to, removal, any peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of
the Penal Code, or any regularly employed and salaried employee who is
engaged in directing traffic or enforcing parking laws and regulations, of a
jurisdiction in which a vehicle is located may immobilize the vehicle with a
device designed and manufactured for the immobilization of vehicles, on a
highway or any public lands located within the territorial limits in which the
officer or employee may act if the vehicle is found upon a highway or any
public lands and it is known to have been issued five or more notices of
parking violations which are delinquent, because the owner or person in
control of the vehicle has not responded to the agency responsible for
processing notices of parking violation within 21 calendar days of notice of
citation issuance or citation issuance or 14 calendar days of the mailing of a
notice of delinquent parking violation, or the registered owner of the vehicle
is known to have been issued five or more notices for failure to pay or failure
to appear in court for traffic violations for which no certificate has been issued
by the magistrate or clerk of the court hearing the case showing that the case
has been adjudicated or concerning which the registered owner's record has
not been cleared pursuant to Chapter 6 (commencing with Section 41500) of
Division 17. The vehicle may be immobilized until that person furnishes to
the immobilizing law enforcement agency all of the following:
"(a) Evidence of his or her identity.
"(b) An address within this state at which he or she can be located.
"(c) Satisfactory evidence that the full amount of parking penalties has
been deposited for all notices of parking violation issued for the vehicle and
any vehicles registered to the registered owner of the immobilized vehicle and
that bail has been deposited for all traffic violations of the registered owner
T
03 -1204
?-II
that have not been cleared. The requirements in subdivision (c) shall be fully
enforced by the immobilizing law enforcement agency on and after the time
that the Department of Motor Vehicles is able to provide access to the
necessary records. A notice ofparking violation issued to the vehicle shall be
accompanied by a warning that repeated violations may result in the
impounding or immobilization ofthe vehicle. In lieu of furnishing satisfactory
evidence that the full amount of parking penalties or bail, or both, have been
deposited that person may demand to be taken without unnecessary delay
before a magistrate, for traffic offenses, or a hearing examiner, for parking
offenses, within the county in which the offenses charged are alleged to have
been committed and who has jurisdiction ofthe offenses and is nearest or most
accessible with reference to the place where the vehicle is immobilized.
Evidence of current registration shall be produced after a vehicle has been
immobilized or, at the discretion ofthe immobilizing law enforcement agency,
a notice to appear for violation of subdivision (a) of Section 4000 shall be
issued to that person."
It is readily apparent that a private security firm, pursuant to a contract with a property
owner, is not allowed under the terms of section 22651.7 to immobilize a vehicle
impermissibly parked in a private parking lot. The statute requires, among other conditions,
that a "peace officer" immobilize the vehicle parked "on a highway or any public lands. "
The Legislature's authorizations for towing and immobilizing parked vehicles
constitute "exceptions" to the more general "tampering" prohibition of section 10852. (See
Code Civ. Proc., § 1859 ["where a general and particular provision are inconsistent, the latter
is paramount to the former"]; Woods v. Young (1991) 53 Ca1.3d 315, 325 [" `specific
provision relating to a particular subject will govern a general provision' "].) Since the
Vehicle Code does not authorize the placement of a "boot" on a vehicle parked in a private
parking lot, the general prohibition of section 10852 would be applicable to such
tampering.
We conclude that a private security fnm, pursuant to a contract with a property
owner, may not immobilize a vehicle that is impermissibly parked in a private parking lot
4 " ` "In the grants [of powers] and in the regulation of the mode of exercise, there is an implied
negative; an implication that no other than the expressly granted power passes by the grant; that is to be
recognized only in the prescribed mode ...." ' " (Wildlife Alive v. Chickering (1976) 18 Cal.3 d 190, 196;
see People v. Zamora (1980) 28 Cal.3d 88, 98; In re Fain (1983) 145 Cal.App.3d 540, 550; 85
Ops.Cal.Atty.Gen. 181, 185 (2002); 57 Ops.Cal.Atty.Gen. 307, 310 (1974).)
7 03 -1204
w
by affixing a "boot" device to the vehicle.'
' Because of the conclusion reached, we need not address an additional question concerning the
collection of a fee by the private security firm to remove the "boot."
8
03 -1204
.j j
JOHN W. SUTnpS
Attorney General
CYN'MIA H. COPT; MAN
Chief Deputy Attorney General
DANIEL D. DONXNICO
Solicitor General
Mark Hurlbert
District Attorney
Fifth Judicial District
P.O. Box 488
Breckenridge. CO 80424
Orr. "ItiL rAUti6UUT1UR
STATE OF COLORADO
DEPARTMENT OF LAW
OFFICE OF TRk, ATTORNEY GENERAL
February 19, 2009
RE: Private entities "booting" cars on private property
Dear Mark:
3038663955 P.002
ATTACHMENT C
STATE SERVICES BUILDING
1525 Sherman Street - 71h floor
Denver Colorado 80203
Phone 303) 866 -4500
We have reviewed the materials you sent on this issue and agree with the analyses
provided in the opinions from California and Colorado Springs. Vehicle owners must be
afforded due process if their vehicles arc to be immobilized or towed. As such, private
property owners arc entitled to call the police to have improperly parked vehicles ticketed
and/or booted or towed. Since private "booting" companies perform a function similar to
that of tow truck drivers, it is appropriate that they be held to similar standards; private
property owners should therefore follow similar procedures before immobilizing vehicles
that are allegedly parked illegally on private property.
Sincerely,
FOR THE ATTORNEY GENERAL
THOMAS RAYNES
Deputy Attorney General
Criminal Justice Section
303 -866 -2375
S?
2 ATTACHMENT
WIDNER MiCHQw & COX;,-
ATTORNEYS AT LAW
MEMORANDUM
TO: Honorable Mayor Wolfe and Town Council Members
CC: Larry Brooks, Town Manager; Chief Brian N. Kozak, Avon Police
Department
FROM: Mary Conboy, Associate Attorney
THROUGH: Eric Heil, Town Attorney
DATE: March 5, 2009
SUBJECT: Private Booting of Vehicles
SUMMARY: This memorandum discusses the legality of booting vehicles parked on private
property, applicable state statutes, and vehicle booting laws from other jurisdictions. To date,
,.neither the Colorado courts nor the Attorney General have addressed the legality of booting
vehicles on private property. Unlike towing companies, private booting companies are not
regulated by the Public Utilities Commission.
Other jurisdictions are split on whether private booting constitutes illegal tampering of a motor
vehicle or justified self -help for the protection of private property from trespass. The states of
Utah, New York and North Carolina have examined the issue of private booting and have issued
decisions that the booting of private vehicles on private property constitutes justified protection
of private property. The California Attorney General has issued a formal opinion that booting
vehicles on private property constitutes criminal vehicle tampering. Some states, such as
Washington, have enacted legislation that specifically prohibits and criminalizes booting of
vehicles on private property by private companies.
PROTECTION OF PRIVATE PROPERTY: Several states have held that vehicle booting on
private property is justified and reasonable protection of property rights.
North Carolina: The North Carolina Supreme Court recently ruled on whether private booting
of vehicles constitutes justified protection of private property in the case of Kirschbaum v.
McLaurin Parking Co., 656 S.E. 2d 683, (North Carolina 2008). In Kirschbaum, the Plaintiff had
a boot affixed to his vehicle after he illegally parked it in a private lot. The Plaintiff raised a claim
that the Defendants committed "trespass to chattel" by placing a boot on his vehicle. The Court
in Kirschbaum considered the application the two state statutes, the first stating that it is
unlawful for an unauthorized person to park in a private parking space provided that the private
parking lot contains certain signage (N.C. Gen.Stat. §20 -219.2 (2005)) and the second stating
that tampering with a vehicle without the owner's consent is a Class 2 misdemeanor (N.C.
Gen.Stat. §20 -107 (2005)). The Court reconciled these statutes by recognizing the principle
that:
S3
Legality of Private Vehicle Booting
March 5, 2009
Page 2 of 5
"[O]ne is privileged to commit an act which would otherwise be a trespass to a
chattel or a conversion if the act is, or is reasonably believed to be, necessary to
protect the actor's land or chattels or his possession of them, and the harm
inflicted is not unreasonable as compared with the harm threatened."
Restatement (Second) of Torts § 260(1) (1965)
The Court in Kirschbaum dismissed the vehicle owner's claims holding that the application of a
boot may be an interference with the property of a trespasser; however, the owner of the real
property is privileged to protect their right to exclusive possession of their property by such
application.' Interestingly, Kirschbaum went on to recognize limits to a property owner's rights
to protect their property, stating that rightful possession to property cannot be vindicated by a
bludgeon, but must be determined by a resort to legal proceedings. The Court in Kirschbaum
noted that the private towing company provided a telephone number for removal of the boot as
well as an appeals process for improper booting.
Utah: The Utah Attorney General's Office issued an opinion on August 26, 2008, stating that
local regulations enacted by Logan City which authorized private booting with limitations were
legally permissible. In Logan City, Utah individuals who did not have a proper permit and
improperly parked on private property within the City limits were subject to having their vehicles
booted by a private parking enforcement company contracted by the property owner. The
individual was required to pay a fee to the booting company to have the boot removed.
Logan City adopted an ordinance to regulate the booting practices of private property owners
within the City's limits. The legality of the ordinance was questioned as citizens were concerned
that the private vehicle booting violated Utah law. The Attorney General took the position that
Logan City's regulation of the practice of booting did not expand a property owner's right to
enforce parking, but limited the owner's existing right to contract with a private company to
immobilize vehicles which trespass on a private parking lot. The opinion recognized that Utah
law allows the owner of real property to regulate the use of their property when the owner allows
use by the public for motor vehicle travel. §41 -6a -215. The Attorney General indicated that this
statute "would include the action of private owners, upon proper notice to the public, assuring
compliance with its rules prohibiting unauthorized parking by "non- residents" by vigorous use of
traditional common law remedies," such as private vehicle booting.
In its discussion of the issue the Attorney General cited the holding in the New York case of
Forest Hills Gardens Corp. v. Baroth, 147 Misc. 2d 404 and to the holding in Kirschbaum. In
Forest Hills the New York court evaluated the issue of whether a corporate owner of a private
residential development area had the legal right to apply an immobilizing boot on unauthorized
vehicles parked on its property. The Court held that there was little difference between booting
a vehicle versus towing and impoundment and that booting, compared to towing, was a
preferable option.
The Utah Attorney General's opinion concludes by stating Logan City's ordinance neither
conflicted with nor violated any provision of Utah law.
' The North Carolina General Assembly has specifically authorized private parking lot owners in certain
counties to boot unauthorized vehicles.
3y-
Legality of Private Vehicle Booting
March 5, 2009
Page 3 of 5
ILLEGAL VEHICLE TAMPERING: The California Attorney General's Office issued an official
opinion regarding the legality of private vehicle booting that was contrary to the opinion of the
Utah Attorney General. The California Attorney General concluded that placing a boot on a
vehicle's wheel in order to immobilize the vehicle would constitute tampering in violation of the
California Vehicle Code and in violation of state law. The California Vehicle Code provides that,
"no person shall either individually or in association with one or more other persons, willfully
injure or tamper with any vehicle or the contents thereof or break or remove any part of a
vehicle without the consent of the owner." The Attorney General opined that since the state had
enacted several statutes to provide a legal means for preventing the impermissible parking of
vehicles on private property, the booting of vehicles parked on private lots by private companies
violated California law.
STATE AND MUNICIPAL REGULATION OF BOOTING: The unregulated nature of private
booting companies has led to abusive practices and some states have passed legislation to
prohibit booting. The Attorney General for the State of Connecticut proposed regulations that
would require a booting company to notify the police when booting, prohibit the charging of a
customer for storage for any time prior to the notification of the police, delegate rate regulation
to the Connecticut Department of Motor Vehicles and allow reasonable access to recover the
vehicle.
The State of Washington passed a bill specifically prohibiting booting. The law makes
immobilizing a vehicle with a boot a misdemeanor that could lead to a year in jail. This
legislation was passed after attorneys for the Washington Department of Licensing argued that
immobilizing a vehicle with a boot was an illegal impoundment and officials won a permanent
injunction against a booting company for such illegal practices.
The City Council of the City of Minneapolis, Minnesota unanimously voted to ban the practice of
booting last June in connection with a City report on abusive and predatory booting practices.
Booting companies were observed booting without adequate signage and without proper
authorization. Several companies also charged unauthorized fees, used intimidating behavior
and threatened to have cars towed if booting fees were not paid immediately.
The City of Logan Utah, as discussed above, adopted an ordinance to regulate private vehicle
booting on private property within the City's limits.
COLORADO STATUTES APPLICABLE TO BOOTING: Like California, Colorado also has a
motor vehicle tampering provision in addition to a criminal tampering provision. The language of
Colorado's tampering provision is slightly different from that of California. Colorado Revised
Statutes §42- 5- 103(1)(a) provides that any person who with criminal intent, "Tightens or loosens
any bolt, bracket, wire, screw, or other fastening contained in, on, or forming a part of such
motor vehicle," or takes these actions against, "any part, equipment, attachment, accessory, or
appurtenance contained in or forming a part [of the motor vehicle] without the knowledge and
consent of the owner of such motor vehicle commits tampering with a motor vehicle."
Colorado's criminal tampering provision contained in §18 -4 -506, C.R.S., provides that a person
commits the crime of second degree criminal tampering if he tampers with property of another
with intent to cause injury, inconvenience or annoyance to that person or to another.
Legality of Private Vehicle Booting
March 5, 2009
Page 4 of 5
The action enumerated in both the tampering and criminal tampering statutes clearly applies to
the act of placing a boot on a vehicle's wheel. Moreover, it is arguable that the criminal intent
element of the statutes is also met based on the details of the complaints received by the Avon
Police Department.
The Office of the Colorado Attorney General recently provided an unofficial opinion to the Eagle
County District Attorney which stated that the owners of vehicles that are booted on private
property should be afforded due process, such as a post deprivation hearing and ability to
appeal the private booting action and protest the boot removal charges.
PUC REGULATION OF TOWING COMPANIES: Towing companies in Colorado are strictly
regulated by the Colorado Public Utilities Commission ( "PUC ") as provided by §40-13 -
01(3)(a)(b), C.R.S. They are required to be licensed, inspected and audited. Pursuant to §40-
13- 107(1)(d), C.R.S., the PUC has the duty to prescribe rules and regulations covering the
operations of towing carriers which includes, but is not limited to, the circumstances under which
a towing carrier may tow a motor vehicle without the express consent of the owner. The
regulations specifically state that the towing company shall release a vehicle upon demand by
the vehicle's owner, during normal business hours, for a non - consensual tow.
Towing carrier's fees are regulated by the PUC so that they are not, allowed ..to charge
unreasonable amounts for towing. §40 -13- 107(2), C.R.S., provides that the PUC may set
maximum towing rates to be collected for the towing of motor vehicles and for storage of the
same. Disputes about the legality of tows are reviewed by the commission and an independent
judge. If a filed complaint proves valid, the PUC has the authority to suspend or revoke a
towing carrier's permit and assess civil penalties pursuant to §40 -13 -109, C.R.S.
Private booting companies, unlike towing companies, are not regulated in the State of Colorado.
Therefore, private booting companies are not subject to oversight or regulation governing the
circumstances when a boot may be placed on a vehicle and the maximum fees that may be
charged for such booting. Moreover, there is neither a mechanism for the filing of grievances
nor any legal remedy for those aggrieved by the industry's practices.
AVON'S AUTHORITY TO REGULATE PRIVATE VEHICLE BOOTING: Since Colorado has
not regulated the industry of private vehicle booting, the Town is not restricted from regulating
private vehicle booting under its general police powers and home rule authority. The Town may
consider adopting regulations to govern the operation of private booting companies, which could
include the following elements:
1) require booting companies to obtain a license to conduct booting within the Town;
2) limit the circumstances under which a company may boot a motor vehicle without the
owner's consent;
3) require police notification prior to booting;
4) provide remedies for parties who have their cars illegally booted (i.e. by requiring
immediate removal of the boot);
5) impose liability such as revocation or suspension of the company's license and impose
fines for failure to comply with the Town's regulations;
34
Legality of Private Vehicle Booting
March 5, 2009
Page 5 of 5
6) impose specific signage requirements to notify the public when booting may occur;
7) impose maximum fees that may be charged for booting;
8) require notice be affixed to the vehicle stating who to contact to remove the boot and the
cost;
9) require the booting company to maintain personnel at all times who are available to
remove the boot; and,
10) require private booting companies to provide an appeals process for alleged improper
booting.
The Town could also decide to prohibit (i.e. criminalize) private booting activities altogether.
The Town's obligation is to enforce the Town's municipal code and if the Town chooses to
regulate the practice of booting then it will become the Town's duty to advise private property
owners and private businesses under which circumstances the practice of booting is legally
permissible and to prosecute any violations. Alternatively, the Town could choose not to act on
the issue locally and leave the matter to the vehicle owners, private property owners, and the
District Attorney. If the Town chooses this option, then an opinion should be obtained from the
District Attorney regarding whether booting is a violation of a state criminal statute(s). Once a
determination is made, the District's Attorney's Office would be responsible for prosecuting
booting offenses. If the District Attorney determines that booting is a violation of a criminal
statute it is not the Town's duty to advise private property owners and private businesses that
private booting is illegal.
CONCLUSION: The State of Colorado does not regulate the industry or the practice of vehicle
booting by private companies and Colorado courts have not ruled on whether private vehicle
booting constitutes unlawful trespass to chattel or illegal vehicle tamper or if such activities are
authorized and reasonable means for protection of private property. The Town has the authority
to regulate private booting companies pursuant to its general police powers and home rule
authority. We are not aware of any municipalities in Colorado that have adopted local
regulations concerning vehicle booting by private companies.
37
.ar
Chief Brian Kozak
Avon Police Department
RE: Private Booting of Cars
Chief Kozak:
ATTACHMENT E
Office of the District Attorney
Fifth Judicial District
Serving Summit, Lake, Clear Creek and Eagle Counties
Mark D. Hurlbert, District Attorney
March 10, 2009
Thank you for writing to me about this. After careful consideration, including
consultation with the Attorney General's Office and reading the memorandum from
Avon Town Attorneys Eric Heil and Mary Conboy, I have come to the conclusion that at
this time it is potentially criminal for private entities to boot illegally parked cars. ..
Under C.R.S. 18 -4 -506, Second Degree Criminal Tampering, a person commits
such a crime "if he tampers with property of another with intent to cause injury,
inconvenience, or annoyance to that person." Second Degree Criminal Tampering is a
class two misdemeanor. C.R.S. 42 -5 -03, Tampering with a motor vehicle is when a
"person who with criminal intent does any of the following to a motor vehicle or to any
part, equipment, attachment, accessory, or appurtenance contained in or forming a part
therof without the knowledge and consent of the owner of such a motor vehicle commits
tampering with a motor vehicle: (a) Tightens or loosens any bolt bracket, wire, screw, or
other fastening contained in, contained on, or forming a part of such motor vehicle."
Either of these charges could potentially apply to the situation regarding private
booting of cars in Avon. Should you file such a case we will review it and should we be
able to prove the case beyond a reasonable, doubt, we will prosecute. Should ordinances
in Avon change, I can re- evaluate my position.
Again, thank you for your consideration. If you or anyone else has any questions
about this, you can call or e -mail me.
Sic ely,
Mark Hurlbert
District Attorney
Fifth Judicial District
P.O. Box 488 • Breckenridge, CO 80424 • (970) 453 -2327 • Fax (970) 453 -7524 • www.da5.us 0 recycled paper
f _# IT
Police Department
Post Office Box 975
400 Benchmark Road
ATTACHMENT F Avon, Colorado 81620
HEART of the VALLEY www. u vonpolzce. org
main 970.748.4040
fax 970.845.7098
March 11, 2009
RE: Private Booting of Vehicles
Avon Property Managers:
On March 10, 2009 I received a letter from Mark Hurlbert, District Attorney of the Fifth
Judicial District, advising that the private immobilization or booting of an illegally
parked vehicle is potentially a violation of state law. Colorado Revised Statute (C.R.S.)
18 -4 -506, Second Degree Criminal Tampering, prevents the tampering of another
person's property with the intent to cause injury, inconvenience, or annoyance to that
person. The District Attorney advised that he would review cases alleging violations of
this statute and prosecute them if he believed the elements could be proved beyond a
reasonable doubt.
As a result of the District Attorney's filing standards involving the private immobilization
of vehicles, the Avon Police Department will investigate complaints of private booting to
determine if there is probable cause that a violation of C.R.S. 18 -4 -506 occurred. If
probable cause has been established the case will be submitted to the District Attorney for
review for charging and prosecution.
The Avon Town Council has requested that the Avon Town Attorney and I draft possible
legislation that would provide regulation and a system of due process for those who have
had their vehicles seized by a private booting company. Once we have completed the
first draft of a possible ordinance, I would like to meet with those interested in the
process to receive feedback for possible revisions before presenting the ordinance to the
Town Council. If you are interested in assisting with this process, please contact our
Police Service Officer, Matt Jamison, at 748 -4040 or by email at mjamison(&.avon.org.
Officer Jamison will then contact you at the appropriate time.
I am committed to assisting you with your parking needs and believe that a collaborative
effort will result in a process that is fair for your needs and protect the rights of our
citizens.
Sincerely,
Brian Kozak
Chief of Police
3,r�,
ASPEN OFFICE
601 East Hyman Avenue
Aspen, Colorado 81611
Telephone (970) 925 -1936
Facsimile (970) 925 -3008
GLENWOOD SPRINGS OFFICE
The Denver Centre
420 Seventh Street, Suite 100
Glenwood Springs, Colorado 81601
Telephone (970) 947 -1936
Facsimile (970) 947 -1937
VIA HAND DELIVERY
ATTACHMENT G
AVON OFFICE
GARF ELD & HECHT, P.C. 0070ca
Avon Police Department
Attn:. Brian Kozak, Chief of Police
400 Benchmark Rd.
Avon, CO 81620
Post Office Box 5450
ATTORNEYS AT LAW Avon, Colorado 81620
Since 1975 Telephone (970) 949 -0707
Facsimile (970) 949 -1810
www,garfleldhecht,com BASALT OFFICE
River View Plaza
100 Elk Run Drive, Suite 220
Basalt, Colorado 8162I
Telephone (970) 927 -1936
Facsimile (970) 927 -1939
March 17, 2009
RE. Booting of Vehicles on Private Property
Dear Chief Kozak and Mr. Heil:
Kursten L. Canada, Esq.
Avon Office
kcanae1ara),garfieldhecht. conz
VIA E -MAIL TRANSMITTAL
Widner, Michow & Cox LLP
Attn: Eric Heil, Esq., A.I.C.P.
13 13 3 E. Arapahoe Rd., Ste. 100
Centennial, CO 80112
As you may be aware, this Firm represents nearly five hundred homeowners in the Town of Avon, by
and through their homeowners associations (Sunridge at Avon Phase II Condominium Association, Beaver
Bench Condominium Association, Liftview Condominium Association, and Westlake Association). We are now
in receipt of your letter dated March 11, 2009, the District Attorney's letter dated March 10, 2009, and certain
prior correspondence issued by the Town of Avon.
First and foremost, with respect to your letter dated March 11, 2009, and in conjunction with telephone
calls I had with Mark Hurlbert, District Attorney, and Eric Heil, Town Attorney, it is my understanding that Mr.
Heil is in the process of drafting proposed Ordinance language whereby the Town of Avon acknowledges
booting on private property as a property owner perogative, subject to certain regulation and due process
standards. Given the amount of time it has taken to get to this juncture, my clients and I absolutely want to meet
with you and give feedback on the proposed Ordinance. We note that your letter advises you are committed to
assisting with our parking needs and believe [now] that a collaborative effort will result in a process that is fair
for our needs and "protect the rights of our citizens." We note that the aforementioned clients are the citizens to
whom you vow protection. Ironically, a majority of the people booted within the private property boundaries of
my clients are not Town of Avon residents. With all due respect, this makes it confusing to us as to whom you
think you are protecting; it appears to be visitors and ski guests.
To date we have been and remain frustrated with the inconsistencies circulated by Town of Avon
authorities. These inconsistencies lie between the Police and Planning Departments. Accordingly, the signage
and assurance by the Town that the signage requirements will meet with both due process AND planning
department requirements would seem to be prudent, at a minimum.
While we deem the District Attorney's position on the Attorney General memorandum a waste of
taxpayer dollars and find his position to be a taking of private property rights, we now recognize, after two
months of circulating correspondence back and forth to the Town Attorney, Attorney General, and District
Attorney, that your office was looking to each of these other parties for direction. In turn, they were.looking to
the Town of Avon to take initiative and advise private property owners, as well as the municipalities referenced
herein, what is or is not "legal" by regulation (which equates to an Ordinance adopted by Towrt,�Council). My
tt�� Printed on recycled paper
L'6
GARFIELD & HECHT, P.C.
Avon Police Department
Attn: Brian Kozak, Chief of Police
Widner, Michow & Cox LLP
Attn: Eric Heil
March 17, 2409
Page 2 of 2
clients have been accused of participating in felony theft (subsequently redacted by you), false imprisonment and
impersonating a police officer, and we are now apprised that booting could "possibly" equate to second degree
tampering. We are pleased that the theory upon which to generate public harassment by your office has been
decided. Definitely, maybe, or maybe not, second degree tampering. And depending upon whether or not the
District Attorney can figure out the elements required to prove criminal intent, but absolutely (maybe) worth
spending taxpayer dollars to pursue.
As we have requested consistently throughout the past two months, via your office and /or Mr. Heil`s
office, please confirm your position is to investigate complaints of private booting to determine if there is
probable cause for second degree tampering charges while the proposed Ordinance language is drafted and
presented to Town Council. In speaking with Mark Hurlbert, he advised that his office is "not looking to
prosecute" these claims and simply wants an Ordinance adopted so that it is on the books, despite what his
correspondence indicates. Please simply advise in writing if booting in Avon unless and until an Ordinance is
adopted by Town Council is "legal."
As requested in your letter, we will contact Matt Jamison to advise him that we would like to participate
in helping formulate an Ordinance which will give direction to all applicable parties. Your prompt attention to
clarification on whether or not booting is permitted during the interim is greatly appreciated, Please feel free to
call me at 949 -1566 with any questions and we look forward to hearing from you to coordinate Ordinance
comments.
Thank you,
GARFIELD & HECHT, P.C.
C
urst Canada, Esq.
cc: Sunridge at Avon Phase II Condominium Assoc. /Attn: Steve Lay, President (via e-mail)
Beaver Bench Condominium Association /Attn: Steve Wood, President (via e -mail)
Liftview Condominium Association/Attn: Jeremy Fishinger, President (via e -mail)
Westlake Village Condominium Association /Attn: Paul Sigmonsma, President (via e-mail)
Honorable Mayor Ron Wolfe (via e -mail)
389456vi L
® Printed on recycled paper
April 21, 2009
RE: Private Booting of Vehicles
Avon Property Managers:
Police Department
Post Of Box 975
0001 Lake Street
Avon, Colorado 81620
")wavonpolic
main 970.748.4040
fax 970.845.7098
As you know, on February 19, 2009 the Attorney General's Office issued an unofficial opinion
that the private immobilization or "booting" of a vehicle constituted a violation of criminal
tampering, unless vehicle owners are afforded due process similar to what is done for towing. In
addition, the Attorney General concluded that it would be appropriate that booting operators be
held to similar standards that govern towing companies.
On March 10, 2009 the District Attorney of the Fifth Judicial District provided me the attached
written opinion, which stated that it is potentially criminal for private entities to boot illegally
parked cars. As a result, on March 11, 2009 I immediately notified you that it would be the
policy of the Avon Police Department to investigate complaints involving the private booting of
vehicles and forward those cases to the District Attorney.
The Town of Av6n then began an initiative to revise our towing ordinance to incorporate private
booting and hold operators to similar standards. I have attached a draft copy of the proposed
ordinance amendment to Chapter 5.12, vehicle impoundment, of the Avon Municipal Code for
you to review. Please review the ordinance and provide me your input no later than May 15,
2009. The ordinance makes reference to the Public Utilities Commission Regulations, which can
be located on their website.
The Town Attorney, Eric Heil, and I will host a roundtable meeting at the Avon Municipal
Building on May 5h, 2009 at 9:00 AM. You may share your concerns and feedback with us at
that time. I will then prepare a revised draft for your consideration before presenting it to the
Avon Town Council for the first reading on May 26, 2009.
In the meantime, the Avon Police Department will follow the same policy with regard to booting
complaints as I explained in my letter, dated March 11, 2009. I cannot make a commitment that
APD will not enforce the criminal tampering statute in relation to private booting after the
Attorney General and District Attorney have concluded that it is an offense in the absence of
regulation and due process.
The Town of Avon is committed to assisting you with your parking requirements and believes
that a collaborative effort will result in a process that is fair for your needs and protect the rights
of our citizens.
Sincerely,
Brian Kozak
Chief of Police
4,z-
A.SPEN OFFICE
601 EAST HYMAN AVENUE
ASPEN, COLORADO 81611.
Telephone (970) 925 -1936
Facsimile (970) 925 -3008
GLENWOOD SPRINGS OFFICE
THE DENVER CENTRE
420 SEVENTH STREET; SUIT£ 100
GLENWOOD SPRINGS, CO 81601
Telephone (970) 947 -1936
Facsimile (970) 947 -1937
May 24, 2009
VIA. E -MAIL TRANSMITTAL
Eric J. Heil, Esq.
Widner Michow & Cox LLP
1313' ) E. Arapahoe Road, Suite 100
Centennial, CO 80112
ATTORNEYS AT LAW
Since 1975
Website:
www.garfieldhecht.com
RE: Attached Revised Proposed Ordinance
Dear Eric:
AVON OFFICE
AVON TOWN SQUARE, UNIT 1.04
0070 BENCHMARK ROAD
POST OFFICE BOX 5450
AVON, COLORADO 81620
Telephone (970) 949 -0707
Facsimile (970) 949 -1830
BASALT OFFICE
110 MIDLAND AVENUE
SUITE 201
BASALT; COLORADO 81621
Telephone (970) 927 -1936
Facsimile (970) 927 -1783
As you know, we represent Sunridge Phase LL Westlake, Beaver Bench and Liftview Homeowner
Associations. Attached hereto please find our further proposed revisions to your latest draft Ordinance.
Please consider the attached our proposed changes to Town Council on first read scheduled for Tuesday, May
26, 2009. The redline attached is a compilation of comments and concerns voiced by association boards who
represent more than 450 homeowners within the Town of Avon, as well as requested revisions from Mr.
Glenn with whom you have also been working.
Please also voice to Town. Council our concerns with signage requirements. While we recognize that there
will be signage requirements, we propose they be consistent and uniformly applied and regulated in one
document rather than the conflicting signage requirements applied to date. Further; we would like to see the
proposed Rules and Regulations once drafted.
Thank you in advance for providing the attached to Town Council for consideration at first read.
Respectfully,
GARFIE D & HECHT, P.C.
By:
Ku ten Canada
TOWN OF AVON, COLORADO
ORDINANCE NO. 09 -10
SERIES OF 2009
ADOPTING REGULATIONS FOR BOOTING VEHICLES ON PRIVATE PROPERTY
THROUGH THE REPEAL AND REEACTMENT OF CHAPTER 5.12 OF THE AVON
MUNICIPAL CODE AND ADOPTING PENALTIES FOR VIOLATIONS
WHEREAS, private property owners within the Town desire to hire private parking
enforcement companies to enforce their parking regulations; and
WHEREAS, such enforcement methods include, but isare not limited to, the emplacement
of an immobilizing device, commonly known as a "Denver Boot ", on the wheel of a vehicle
( "booting "); and
WHEREAS, the use of booting by private parking enforcement companies is not currently
regulated by the State of Colorado and the District Attorney for the Fifth Judicial District in the
State of Colorado has issued an advisory opinion that booting of a vehicle by a private party
without the consent of the vehicle owner constitutes Second Degree Criminal Tampering
pursuant to C.R.S. § 18 -4 -506 and criminal motor vehicle tampering pursuant to C.R.S. §42 -5 -03;
and
WHEREAS, pursuant to C.R.S. §31 -15 -103 and §31 -15 -104, and pursuant to the home rule
powers of the Town of Avon (the "Town "), the Town Council has the power to adopt ordinances
for promotion and preservation of public health, safety, and welfare, including the authority to
regulate parking enforcement companies that immobilize and boot motor vehicles without the
consent of the owner of the motor vehicle within the municipal limits of the Town; and
WHEREAS, booting companies perform a function similar to that of commercial towing
companies and the Town desires to hold booting companies to standards similar to commercial
towing companies; and
WHEREAS, the Town Council finds that enactment of regulations that license and permit
parking enforcement companies and permit the limited use of immobilization and booting of
motor vehicles will enhance the ability of private property owners to enforce parking regulations
on their property, which will thereby improve the function of private parking areas and
compliance with parking requirements for developed properties as approved and regulated by the
Town under the Town's land use regulations, and therefore the Town Council finds that passage
of this Ordinance will promote and preserve the health, safety and welfare of the Avon
community;
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
SECTION 1. RECITALS INCORPORATED. The above and foregoing recitals are incorporated
herein by reference and adopted as findings and determinations of the Town Council.
SECTION 2. ENACTED. Chapter 5.12 of the Town of Avon Municipal Code is hereby
repealed in its entirety and re- enacted to read as follows:
CHAPTER 5.12
Vehicle Impoundment
5.12.010 Definitions.
As used in this Chapter, the following words and terms shall be defined as
follows:
Boot or Booting means to place any immobilization device upon a motor vehicle
not registered to the person or company placing the immobilization device, for
purposes of parking violation enforcement.
Chief means the Chief of Police of the Town, or his or her designee or designees.
Operator means any person operating a towing vehicle or applying an
immobilization device.
Normal business hours means 8:00 AM to 5:00 PM, Monday through Friday,
excluding holidays recognized by the Town of Avon.
Parking enforcement company means any person, operator, property owner,
property manager or company who immobilizes or boots a vehicle for the purpose
of enforcing private property parking rules or otherwise protecting private
property from trespass by a vehicle.
Towing list means a list maintained by the Police Department containing the
names of those wreckers licensed by the Town who are to be requested by the
Police Department to respond to the scene of accidents or emergencies involving
vehicles.
Towing vehicle means any vehicle used by a wrecker for the towing or
transporting of other vehicles (or other property) in the course of his or her
business.
Town manager means the Town Manager of the Town of Avon and his or her
designee or designees.
Wrecker means a person or company engaged in the business of, or offering the
services of, a vehicle wrecker or towing service, whereby motor vehicles are or
may be towed or otherwise removed from one place to another by the use of a
motor vehicle adapted to and designed for that purpose.
5.12.020 License — application — fee.
Page 2 of 12
Booting Regulations 5- ?824 -09
(a) No wrecker shall have his or her name included on the towing list of the
Town and be requested by the Police Department to respond to the scene of an
accident or emergency for the purpose of towing a vehicle without first having
obtained a license from the Town Clerk.
(b) No parking enforcement company desiring to boot vehicles within the Town
of Avon may engage in booting operations without first having obtained a license
from the Town Clerk.
(c) Any license application for a wrecker or parking enforcement company, other
than a renewal thereof, shall be accompanied by a nonrefundable application fee
in the amount of one hundred fifty dollars ($150.00). All applications for
licenses, including renewal, shall be made upon forms provided by the Town
Clerk. The wrecker or private enforcement company license application fee shall
also serve as the business license fee for the Town of Avon. Any wrecker or
parking enforcement company that has paid a business license fee and that has
been issued a business license by the Town of Avon on or prior to May 1, 2009
which is in good standing and has not expired, shall not be required to submit a
license application fee in order to obtain a license in accordance with the
provisions of this Chapter 5.12.. but shall be subject to the renewal provision set
forth herein.
(d) An applicant for a parking enforcement company license that is a corporation,
partnership, association, firm or other business entity shall include verification
that the person designated on the application is authorized to represent such
business entity and hold the wrecker or parking enforcement license on behalf of
the business entity.
5.12.030 License — application — investigation.
Upon receipt of a license application and application fee under Section 5.12.020,
the Town Clerk shall forward the application to the Chief, who shall conduct such
investigation and criminal background check as is necessary to determine:
(a) That the applicant is a fit and proper person to conduct or work in the
proposed business, and has not been convicted of theft or embezzlement, or any
offense involving the unlawful use, taking or conversion of a vehicle belonging to
another person, or if the applicant is a corporation, that its officers, directors and
principal stockholders are of good character and of good business repute and have
not been convicted of theft or embezzlement, or any offense involving the
unlawful use, taking or conversion of a vehicle belonging to another person;
(b) That a wrecker applicant has received and has currently in force a permit to
operate as a towing carrier from the Colorado Public Utilities Commission. The
failure of a wrecker to maintain a valid permit from the Public Utilities
Commission shall be grounds for denial of a license, or, if a license is in effect at
Page 3 of 12
Booting Regulations 5- 3024-09
the time, shall be grounds for revocation or suspension of the license as provided
in Section 5.12.090;
(c) That the wrecker or parking enforcement company has adequate, safe
equipment and an adequate recordkeeping system and can otherwise comply with
the rules and regulations promulgated by the Chief as provided in Section
5.12.080; and
(d) That the wrecker has currently in force public liability and property damage
insurance or surety bond providing coverage sufficient to meet the requirements
of the rules and regulations of the Colorado Public Utilities Commission
governing towing carriers; that the parking enforcement company has public
liability and property damage insurance or surety bond providing coverage of at
least $1,000,000.00 per occurrence.
5.12.040 License — application — decision - appeal.
The Chief shall return the application form to the Town Clerk within fifteen (15)
days together with his or her recommendation for the grant or denial of the
license. The Chief shall state the reasons for a recommendation of denial. The
Town Clerk shall then grant or deny the license as the circumstances warrant.
The applicant for a wrecker or parking enforcement company license may appeal
a decision by the Town Clerk to deny a license to the Town Council. A request
for appeal shall be provided in writing to the Town Clerk within ten (10) days of
the date of denial of the license application. The Town Council shall consider an
appeal of the Town Clerk's decision to deny a wrecker or parking enforcement
company application within thirty five (35) days of receipt of a proper and timely
written request to appeal a denial decision. The decision of the Town Council
shall be final.
5.12.050 License — grounds for denial, suspension or revocation.
It shall be grounds for denial, suspension or revocation of a wrecker or parking
enforcement company license for any person to knowingly provide false
information to the Town Clerk or to the Chief in or in conjunction with an
application for a license.
5.12.060 License — annual renewal fee.
The annual license renewal fee for a wrecker or parking enforcement company
shall be one hundred fifty dollars ($150.00)-.) due upon the anniversary of the date
of issuance of the business license for such wrecker or parking enforcement
company.
5.12.070 License may not be required — emergencies.
Page 4 of 12
Booting Regulations 5- 2-0224 -09
The Chief may permit wreckers or a parking enforcement company not licensed
by the Town to be called by the Police Department to the scene of disasters,
accidents or other emergencies when, in the opinion of the Chief, the public
health, safety and welfare require that such action be taken.
5.12.080 Rules and regulations.
The Chief shall, within thirty (30) days after the enactment of the ordinance
codified in this Chapter, set forth in writing such rules and regulations governing
the conduct of wreckers or parking enforcement company as are deemed
necessary to ensure the inhabitants of and other persons within the Town safe,
efficient and dependable towing or parking enforcement service. These rules
shall include, but not be limited to, the following:
(a) Equipment. The Chief shall specify equipment at least the equivalent of that
required by the rules and regulations of the Colorado Public Utilities Commission
governing towing carriers for wreckers and such other necessary equipment as
determined by the Chief. Parking enforcement company vehicles are required to
be clearly marked with the business name and Avon license number and must
have a blinking amber light on the top of or above the vehicle when engaged in
booting operations and the operators are required to wear reflective traffic safety
vests.
(b) Records. The Chief shall require sufficient record keeping to ensure
compliance with the terms of this Chapter and the rules and regulations as
promulgated.
(c) Personnel. The rules shall specify such steps as are necessary to determine
that the operators and employees of the wrecker or parking enforcement company
are of good character and otherwise fit to participate in towing or booting
operations within the Town. Employees engaged in parking enforcement shall
display a picture identification card containing: the employee's picture, the
employee's name, the employer's name, and the Avon business license number.
(d) Rates. Rates shall be determined by the following procedures and
requirements:
(1) A schedule of reasonable rates to be charged by wreckers operating on the
Town's towing list shall be established by the Town Manager and it is unlawful
for any wrecker to charge rates other than as set forth in said schedule whenever
such wrecker provides towing service in response to a call from the Police
Department. The schedule of rates shall be set forth as a part of the rules and
regulations governing wreckers provided that such rates shall not be less than the
permissible rates published by the Public Utilities Commission as may be
amended from time to time. The Town Manager shall annually review the rate
schedule to determine its adequacy and appropriateness and shall make such
Page 5 of 12
Booting Regulations 5- 2824 -09
changes as he or she deems necessary. In setting or revising rates, the Town
Manager shall give consideration to the rates charged for similar services in the
County. The rate schedule as set forth in the rules and regulations shall not apply
to towing services conducted by a wrecker when his or her services are not
rendered as a result of a request by the Police Department.
(2) A wrecker shall not charge rates higher than what is allowed by the Colorado
Public Utilities Commission for non - consensual tows. A parking enforcement
company shall not charge a boot removal fee higher than the rate allowed by the
Colorado Public Utilities Commission for the non - consensual tow of a motor
vehicle with a GVWR of less than 10,000 pounds when requested to remove the
boot.
(3) If the owner, authorized operator, or authorized agent of the owner of a motor
vehicle that is parked without the authorization of the property owner attempts to
retrieve the motor vehicle while the wrecker or booting operator is still with the
vehicle, a "drop charge" shall not be higher than what is established by the
Colorado Public Utilities Commission.
(4) There shall not be aii assessedany boot removal fee assessed if the boot cannot
be removed within ninety (90) minutes from the time of the request for removal
by the vehicle owner or vehicle owner's designee. Any dispute regarding the time
frame proscribed herein may be refuted based on the phone records for the
parking enforcement company. A boot applied at the direction of a Town of
Avon police officer shall be released at the direction of a Town of Avon police
officer.
(e) Authority of Chief. The Chief shall from time to time formulate, publish and
promulgate such other rules and regulations as are reasonably necessary to
effectuate the purpose of this Chapter, including, but not limited to the type of
security required at the vehicle storage location, the hours during which the
vehicle storage location will be open for the redemption of vehicles by their
owners, the persons to whom towed vehicles may be released and the procedures
to be followed in connection with the release of towed vehicles and the payment
of fines, towing fees and storage charges. Any rules and regulations promulgated
by the Chief shall not conflict with or materially change anyprovision of this
Chapter 5.12. The Chief may initiate a request for proposal and select a
designated wrecker service or parking enforcement company to provide service
for police requested impounds. The Chief shall post notice of any proposed rules
in the official places of posting notices adopted by the Town, shall publish a
notice in a newspaper of general circulation in the Avon community, and shall
mail notice to all licensed wrecking and parking enforcement companies at least
twenty (20) days prior to adoption of such proposed rule or regulation by the
Chief and the Chief shall consider all comments received on the proposed rules
and regulations prior to taking any action to adopt the proposed rules and
regulations. The Chief shall provide written notice of adoption of any rules and
Page 6 of 12
Booting Regulations 5- 3824 -09
regulations to all persons who provide comments in writing along with a copy of
the adopted rules or regulations and a statement that persons with standing
(defined as residents, property owners or business owners in Avon) may appeal
the decision to adopt the rule or regulation to the Town Council. Any person with
standing may appeal the decision of the Chief to adopt a rule or regulation by
providing a request to appeal the decision in writing to the Town Clerk within ten
(10) days of the date of adoption of the rule or regulation by the Chief. Failure to
provide a request (defined as received by the Town) to appeal a rule or regulation
adopted by the Chief within ten (10) days shall be deemed a forfeiture and waiver
of all rights to appeal such decision to the Town Council. The Town Council
shall consider all appeals of the decision of the Chief to adopt a rule or regulation
which are properly and timely provided to the Town and Town Council's action
shall be final. During the pendency of an appeal, the proposed rule or regulation
shall not take effect.
5.12.090 Suspension or revocation — procedure.
Upon a showing that a wrecker or parking enforcement company has violated the
provisions of this Chapter, a Hearing Officer's order or the rules and regulations
provided for in Section 5.12.080, the Town Council may suspend for a period of
up to six (6) months or revoke the license of any wrecker or parking enforcement
company. Prior to taking any action to suspend or revoke a wrecker or parking
enforcement company license, the Town shall provide at least ten (10) days prior
written notice to the licensee stating the grounds and allegations for any action to
suspend or revoke a license and shall conduct a hearing thereon. Service of the
notice shall be by personal service upon the wrecker or parking enforcement
company or his or her agent or by registered mail, return receipt requested, sent to
the business address of the operator as shown on his or her license. The decision
of the Town Council shall be final.
5.12.100 Written authorization to tow /immobilize — required — exceptions.
No wrecker or parking enforcement company licensed by the Town and no
operator shall commence or originate the towing or immobilization of a vehicle
within the Town without the written consent of the registered owner, legal owner,
person in control, driver or the authorized agent of any of them, or other person
having a legal right to possession of the vehicle, or from a police officer, save and
except under the following circumstances:
(a) A tow which is otherwise lawful may be commenced or originated by a
person engaged in the business of towing vehicles if such person notifies the
Police Department of the Town within thirty (30) minutes of the tow. Such
notification shall include a description of the vehicle to be towed, the license plate
and VIN number if legible, the time of the tow, the destination of the tow and the
reason for which the vehicle is being towed.
Page 7 of 12
Booting Regulations 5- 2-024 -09
(b) The owner or person in lawful possession of private property, or the agent or
employee of either of them, may give written consent to have a parked vehicle
towed from such property when the vehicle is parked or obstructing a private
driveway or is on private property, without the express or implied consent of the
owner or person in lawful control of such a vehicle and shall comply with the
requirements of Subsection (a) of this Section 5.12.100 relating to notification of
the Police Department when the vehicle is towed.
(c) The owner or person in lawful possession of private property, or the agent or
employee of either of them, may give written consent to a parking enforcement
company to immobilize vehicles for the purpose of parking violation
enforcement.. without the express or implied consent of the owner or person in
lawful control of such vehicle. The parking enforcement company operator shall
maintain a daily log of the cars that are booted by license plate, VIN number if
legible, location, date and time and provide that log to the Avon Police
Department before the end of the - fellewing business day following
immobilization of a vehicle during normal business hours.
(d) Private parking lots which contain one (1) or more parking spaces and for
which the property owner or designee use booting or towing of vehicles for
parking enforcement shall post a conspicuous sign on the property. Such sign will
provide notice, with reflective background, that unauthorized vehicles will be
booted or towed, and shall comply with the adopted rules and regulations for
signage.
5.12.110 Written notice of tow /immobilize — rates and hours.
(a) Notwithstanding any other provision of this Chapter, a licensed wrecker shall
receive a written authorization from the person authorizing a tow, prior to the
commencement of a tow originating within the Town, which authorization shall
list the services offered and the rates and charges required therefore. A copy of
such authorization shall be furnished to the person authorizing the tow. Such
copy shall list the name, address and telephone number of the wrecker's business
and the days and hours the business is open for the release of vehicles. Such copy
shall also be signed by the towing vehicle operator performing the authorized
service.
(b) After a boot is placed on any vehicle, the parking enforcement company shall:
(1) Provide a notice affixed to the vehicle in a conspicuous and obvious manner
containing the name, address, telephone number, and license number of the
parking enforcement company that placed the boot on the vehicle, the amount of
the boot removal fee, the right to have the boot removed within ninety (90)
minutes of contacting the parking enforcement company, the name of the property
owner or manager authorizing the boot, the signature of the parking enforcement
Page 8 of 12
Booting Regulations 5 -2- 024 -09
company operator or designee, and a description of the right to request a post -
seizure hearing; under this Chapter 5.12:
(2) Maintain personnel authorized to remove any boot and release any vehicle to
its owner or driver upon the payment of any boot removal fee during such times
as required in this Chapter; and,
(3) Provide a receipt upon payment to the individual making the payment for
removal of the boot or release of the vehicle, listing the fees and a
dew advisement of the right to request a post- seizure hearing for vehicle
immobilization per 5.12.120.
(c) A parking enforcement company or wrecker shall not charge fees in excess of
the fees as listed in the fee schedule for booting or towing a vehicle.
(d) A parking enforcement company or wrecker shall not charge any fee related to
the impoundment of a vehicle that is not listed in the fee schedule.
(e) Charges for damages to booting equipment shall not be governed by this
section and shall not prevent the vehicle's release if scheduled fees are satisfied.
Damages or loss to parking enforcement equipment will be investigated using
other municipal and state statutes related to theft or criminal injury to property.
(f) The Town is authorized to audit the fees charged by a parking enforcement
company or wrecker licensed to do business in the Town of Avon upon
reasonable notice and at reasonable times for the purpose of verif�ing compliance
with this Chapter 5.12.
5.12.120 Postseizure hearing.
(a) The owner of a vehicle that has been immobilized pursuant to this article has
a right to a "post- seizure" administrative hearing in accordance with this Section
5.12.120 to determine whether there was probable cause to impound the vehicle.
(1) The hearing shall be petitioned and conducted in the same manner as outlined
in Title 10 of the Avon Municipal Code.
(2) The parking enforcement company shall have the burden to establish that
there was probable cause to impound or immobilize the vehicle.
(3) The losing party shall be assessed a minimum hearing cost of one hundred
dollars ($100.00) and shall be required to pay for translation services, if used
during the hearing. The Hearing Officer has the discretion to waive court costs.
Page 9 of 12
Booting Regulations 5- 20224 -09
(b) When a vehicle is immobilized by a parking enforcement company the
vehicle owner or driver shall be informed of their right to a post- seizure hearing
with the following written statement:
The vehicle was booted by the property owner for a private property parking
violation as outlined in Avon Municipal Code, Title 5. The Town of Avon was
not involved in the action. The owner or operator of the vehicle may request a
hearing by one of the following methods:
(1) B�=bv providing a written request to the Municipal Court Clerk for a post -
seizure hearing to contest the booting within ten (10) days of the date the vehicle
was booted; or
(2) tybv appearing in person at the Municipal Court within a ten (10) calendar
day period from the date on which the boot was placed on the vehicle and
requesting an initial appearance before a Hearing Officer.
5.12.130 Compliance required.
It shall be unlawful for any private property owner or designee to immobilize any
motor vehicle that is trespassing or infringing upon the real property rights of that
property owner without complying with this Chapter 5.12.
SECTION 3. CODIFICATION AMENDMENTS. The codifier of the Town's Municipal Code,
Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes
as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal
Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any
typographical error in the enacted regulations provided that such correction shall not
substantively change any provision of the regulations adopted in this Ordinance, such corrections
may include spelling, reference, citation, enumeration, and grammatical errors.
SECTION 4. SEVERABILITY. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect seven days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Page 10 of 12
Booting Regulations 5- 3824 -09
SECTION 6. SAFETY CLAUSE. The Town Council hereby finds, determines and declares that
this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
SECTION 7. NO EXISTING VIOLATION AFFECTED. Nothing in this Ordinance shall be
construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability
or right or affect any audit, suit or proceeding pending in any court, or any rights acquired, or
liability incurred, or any cause or causes of action acquired or existing which may have been
incurred or obtained under any ordinance or provision hereby repealed or amended by this
Ordinance. Any such ordinance or provision thereof so amended, repealed or superseded by this
Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and
all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty,
liability, or right and for the enforcement of such penalty, liability, or right and for the purpose of
sustaining any judgment, decree or order which can or may be rendered, entered or made in such
actions, suits or proceedings, or prosecutions imposing, inflicting or declaring such penalty or
liability or enforcing such right, and shall be treated and held as remaining in force for the
purpose of sustaining any and all proceedings, actions, hearings and appeals pending before any
court or administrative tribunal.
SECTION S. PUBLICATION BY POSTING. The Town Clerk is ordered to publish this Ordinance
by posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[remainder of page intentional left blank — signature page follows]
Page it of 12
Booting Regulations 5- X024 -09
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 p.m. on
the 9th day of June, 2009, at the Council Chambers of the Avon Municipal Building, located at
400 Benchmark Road, Avon, Colorado, on the 26th day of May, 2009.
Ronald C. Wolfe, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to final action by the Town Council.
ATTEST:
Patty McKenny, Town Clerk
APPROVED AS TO FORM:
Eric Heil, Town Attorney
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on the 9th day of June, 2009.
Ronald C. Wolfe, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
ATTEST:
Patty McKenny, Town Clerk
Page 12 of 12
Booting Regulations 5 -2- 024 -09
Avon Center at Beaver Creek -I Homeowners Association
100 West Beaver Creek Blvd, Suite 230
P.O. Box 6130
Avon, Colorado 81620
May 4, 2009
Mayor Ron Wolfe
Town of Avon Council Members
Avon, Colorado 81620
Re: Proposed Ordinance Amendment to Avon Municipal Code Chapter 5.12, Vehicle
Impoundment, Related to Regulation of*Private Booting Companies
Dear Mayor and Council Members:
I am writing you on behalf of Avon Center at Beaver Creek -I Homeowners
Association to express the Association's concerns relative to the Town's proposed
amendment of its Municipal Code to begin regulation of private booting companies
within the Town.
The Association is unclear how enactment of the proposed Code amendment
"enhances" the ability of private property owners to enforce parking regulations on their
property as declared in the preamble to the amendment. It is not clear from either of the
letters received from the Office of the State Attorney General or the District Attorney for
the Fifth Judicial District that regulation of booting companies operating on private
property at the request of the property's owner is somehow legally required. To the
contrary, neither of these letters definitively state that enforcement of parking regulations
on private property is mandated by State law. At best, the letters express "potential"
concerns about "due process rights" but do not go so far as to require new parking
regulations.
The letter from the Office of the State Attorney General vaguely refers to case law
from California and Colorado Springs as grounds for suggesting that amended parking
regulations might be considered by the Town. We have not seen those cases, but
certainly hope that the Town would make those cases available for inspection by others.
On the other hand, we are aware of a Utah Court of Appeals case directly on point: Millet
v. Logan City, 147 P.3d 971 (Ct.App.Utah 2006).
In short, Millet confirmed the right of a landlord to boot one of his tenant's cars
based upon the tenant's failure to adhere to the parking regulations of the apartment
complex. Millet, combined with Colorado law generally, supports the position that (a)
private property owners have a right to enforce their private property rights, including
booting vehicles parked on their property without right or permission; (b) booting
illegally parked vehicles by private property owners does not violate due process; and (c)
booting illegally parked vehicles by private property owners likely does not constitute
Mayor Ron Wolfe
Town of Avon Council Members
May 4, 2009
Page 2
Second Degree Criminal Tampering pursuant to C.R.S. § 18 -4 -506.
As an initial matter, there seems to be a fundamental misunderstanding regarding
the nature of the Association's right to boot trespassing vehicles. Specifically, the Town
of Avon, the Avon Police Department and even the press fail to distinguish between
cases in which a private property owner boots a vehicle and cases in which the Town or
another governmental entity boots a vehicle. The difference between the two scenarios is
important for at least two reasons.
First, a private property owner has private property rights which it is legally
entitled to enforce. For example, in Colorado, a private property owner may protect its
private property by using "appropriate physical force" against a potential trespasser. See
C.R.S. §18 -1 -705. More directly on point, the Millet court specifically recognized an
inherent right of private property owners to boot cars illegally parked on their property.
See Millet at 178 -180.
Second, a private property owner does not violate due process requirements by
enforcing its own private property rights. Specifically, in order for the subject of due
process to even be triggered, either the government or someone acting on behalf of the
government must have undertaken the disputed action. There is no such "state action"
present when, as in this case, a rip vate property owner enforces its parking obligations
through a 12rivate third -party booting company. See Millet at 976 and 981. Accordingly,
the Association's booting of cars illegally parked on its property does not violate the due
process rights of the booted car's owner.
Finally, notwithstanding Mr. Kozak's suggestions to the contrary in his recent
letters, we do not believe that the Association's booting of an illegally- parked vehicle
would constitute Second Degree Criminal Tampering pursuant to C.R.S. §18 -4 -506. In
order to commit such a crime, a person must "... [tamper] with the property of another
with the intent to cause injury, inconvenience or annoyance to that person or to
another..." (emphasis added). C.R.S. § 18 -4 -506.
As part of the analysis, it is instructive to note that a person commits the separate
crime of Third Degree Criminal Trespass when that person "unlawfully enters or remains
in or upon [the] premises of another." C.R.S. § 18 -4 -504. A person who parks his or her
car on private property without right or permission has arguably committed the crime of
Third Degree Criminal Trespass. Therefore, there is a strong argument that when the
Association boots an illegally parked vehicle on the Association's own property, its intent
is not to "cause injury, inconvenience or annoyance ", but rather to enforce, against an
illegal trespasser, the Association's own private property rights, specifically including the
right to boot an illegally parked vehicle in accordance with the Millet decision.
The Association has spent an inordinate amount of its own time and money
enforcing parking regulations on its own property because the Avon Police Department
previously elected to forego enforcement of private parking regulations. Now the Town
100096861 / I
Mayor Ron Wolfe
Town of Avon Council Members
May 4, 2009
Page 3
feels that it is necessary to enact a wide - reaching and onerous regulatory scheme to
prevent private property owners from enforcing their constitutionally protected rights
against trespassers. If the Avon Police Department would act in the best interests of its
citizens, it would enforce parking regulations on private property so this entire new layer
of government intervention would not be necessary.
The Avon Police Department makes much to do about protecting the "due
process" rights of trespassers. The Association finds it odd that despite these trumpeted
concerns, the Chief of Police has been given plenary authority in the proposed Code
amendment to not only make rules concerning the Ordinance amendment, but also the
power to interpret and enforce those rules against alleged violators. Establishing the
Chief of Police as the triumvirate of legislator, judge and enforcer hardly advances
principles of due process.
It seems to the Association that the Town has more important matters with which
to be concerned than protecting the rights of illegal trespassers. Perhaps the Town should
consider utilizing its resources to protect private property owners from lawbreaking
vehicle operators who have no regard for the rights of others. The Association has
serious concerns about the direction the Town is proposing to take this matter and
respectfully requests the opportunity to be meaningfully involved in further discussions if
the proposed Code amendment will proceed further.
Very truly yours,
Thomas B. Crosbie
President
00096861 / 1)
-11=0 k
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Brian N. Kozak, Chief of Police
Date: June 17'', 2009
Re: Ordinance # 09 -10, Amendment to Chapter 5.12, Vehicle Impoundment
Summary: Private property owners within the Town desire to hire private parking enforcement
companies to enforce their parking regulations by placing an immobilizing device, commonly known
as a "boot" on the wheel of vehicle in violation. The practice is not regulated by the State of
Colorado, and the District Attorney for the Fifth Judicial District has issued an advisory opinion that
booting by a private party without the consent of the owner constitutes Second Degree Criminal
Tampering pursuant to CRS 18 -4 -506. The amendments provide oversight and due process for
parking enforcement companies, allowing the companies to engage in booting operations.
Background: The Avon Town Council was presented with three options after the Colorado
Attorney General and District Attorney released their legal opinions concerning private company
booting, which were:
1. Criminalize private booting
a. This action would require private property managers to use licensed tow trucks or
the Avon Police Department for parking enforcement.
2. Not to act on the matter
a. This action would require the Police Department to act on the District Attorney's filing
guidelines and prosecute alleged offenders for Second Degree Criminal Tampering.
The criminal courts would then decide the issue through case law.
3. Regulate the practice of booting through ordinance
The Avon Town Council decided to assist and protect private property owners by directing Staff to
draft an ordinance that provide oversight and due process for private company booting, similar to
towing regulations.
Discussion: On June 9t', 2009 the Avon Town Council passed the first reading of the ordinance
and directed members of the community to provide Chief Kozak with written input before June 15,
2009; Chief Kozak has not received any new written input. The summary of the ordinance is as
follows:
5.12.020
• License required for towing and parking enforcement companies
o $400.00 first time application fee
o Those licensed prior to May 1, 2009 are not required to pay the fee
5.12.030
• Applicants shall not have been convicted of theft or embezzlement, any offense involving the
unlawful use, taking or conversion of a vehicle belonging to another person, or a felony
• Tow companies shall be required to be licensed with the PUC
• Licensed companies have adequate equipment and recordkeeping and are required to
comply with the rules promulgated by the Chief.
• Companies are required to have insurance
5.12.040 and 5.12.050
• A denial of application may be appealed to the Town Council
• Providing false information shall be grounds for denial
5.12.060
• The annual license renewal fee is $150.00
5.12.070
• Wreckers who are not licensed may be used in an emergency
5.12.080
• The Chief shall set rules in writing and the rules shall include:
• Safety equipment
• Vehicles marked with business name and license number
• Safety lights
• Safety vests
• Records
• Personnel
• Employees held to the same background standards as the applicant
• Identification card required to be displayed
• Rates
• Wreckers shall follow the PUC rates
• Boot removal shall not be higher than <?D of PUC for towing ($117.60)
• Drop charge same as PUC ($64.00)
• No charge for boot removal if over 90 minutes from request to remove
o Authority of Chief
• May select a business for municipal service from RFP
• Shall notify licensees of rule changes and post on website
• Appeal rule changes to Town Council
Rules have been developed and are in attachment A
5.12.090
• Town Council may suspend a license for violation of ordinance or rules
5.12.100
• Written authorization required to tow or immobilize a vehicle
• Wreckers required to notify the Police Department of each impound
• Property manager required to give written consent to a parking enforcement
company to immobilize vehicles
• List specific enforcement
• List procedure to determine a violation
• May not include violations of expired registration
• Log of vehicles booted provided to the Police Department
• Page 2
2
5.12.110
• A wrecker shall have written authorization for each impound
• A parking enforcement company shall place a notice on a vehicle that has been immobilized
• Name, address, telephone number and license number of the company
• Right to have the boot removed within 90 minutes
• Name of property manager /owner authorizing the boot
• Signature of operator
• Description of right to request a post- seizure hearing
• Removal fee
Companies shall maintain personnel to release vehicles �2N
• Companies shall provide a receipt upon payment, listing the fees and advisement of right to
hearing for vehicle immobilization
The Town may audit the records of the company to assure compliance with the ordinance
5.12.120
• Post - seizure hearing conducted by the Municipal Court
• Losing party shall be assessed $100.00 for hearing costs
5.12.130
• Vehicles shall not be immobilized for having expired vehicle plates
o This will require property managers to cancel parking passes before a car is
booted
5.12.140
• Establishes a misdemeanor for a property owner /manger to violate this ordinance
Financial Implications: The licensing and background fees established by ordinance or in the
attached rules will recover a majority of the costs by the Town for oversight of the ordinance for the
fir _yea"4,q_1icensee's operation. It is estimated that the Town of Avon will incur an estimated cost
of $300 -500 p�r licensee for each additional year of operation.
Recommendation: The Avon Police Department has and will continue to remain impartial on the
issue. The Agency has always been willing to assist property owners with parking issues when
requested.
Recommended Motion: I move to adopt Ordinance 09 -10, an amendment of Chapter 5.12 of the
Avon Municipal Code, as written.
Town Manager Coi
Attachments:
A. Rules and regulations governing parking enforcement companies
B. Example of possible Booting form to be posted on vehicle
C. Vehicle immobilization log
D. Vehicle impoundment employee background form
• Page 3
3
ATTACHMENT A
Rules and Regulations Governing Parking Enforcement Companies
Town of Avon Municipal Code, Chapter 5.12
PERSONNEL:
1. The Licensee and any employees of the parking enforcement company, who will
immobilize vehicles or collect impound fees shall read Chapter 5.12 of the Avon
Municipal Code and associated rules and agree to abide by the ordinance. These
employees will be referred to as "operators ".
2. Within Three (3) days of hiring a new operator the Licensee shall require the employee to
appear at the Avon Police Department to complete the Vehicle Impoundment Employee
Background Form.
a. The employee shall provide a valid U.S. government or state issued identification
card with a picture.
b. A valid Colorado driver's license shall be required if the operator will be required
to drive a vehicle.
c. The employee will pay for this service in the following manner:
i. Total of $60 in cash or money order made out to the Town of Avon
1. $10 fingerprinting fee
2. $50 background investigation fee
ii. $18 money order made out to the Treasury of the United States (fee
subject to change).
iii. $16.50 money order made out to the Colorado Bureau of Investigations
(fee subject to change).
d. The Avon Police will complete the preliminary background check and forward a
copy of the form to the Licensee within five (5) days. The form will either
approve or deny the employee as an operator. The complete fingerprint results
will be completed within sixty (60) days and the Licensee will be notified if a
change is required, based on the fingerprint results.
e. The licensee may appeal the decision in the same manner as outlined in Section
5.12.040 of the Municipal Code.
3. If the Licensee has knowledge that an operator has been convicted of a felony, theft,
embezzlement or any offense involving the unlawful use, taking or conversion of a
vehicle belonging to another person, the person shall immediately be removed from
operator duties.
4. The Licensee shall notify the Avon Police Department within five (5) days the name of
the operator, who is no longer acting in that capacity.
5. Operators, engaged in parking enforcement, shall display a picture identification card
containing: the employee's picture, the employee name, the employer's name, and the
Avon business license number.
6. Operators shall not use or display dogs or weapons in a threatening or intimidating
manner.
7. Before the operator is allowed to engage in solo parking enforcement he or she must
complete "basic" training by the Licensee that includes (Licensees shall be familiar with
these issues):
a. Review of ordinance and rules associated with Chapter 5.12
b. Discussion of other legal and civil issues related to use of force.
/(c
c. Methods to defuse hostile confrontations, which may include walking away from
the situation and calling the police.
d. Court hearing process and rights of the vehicle owner or property owner.
e. Copy of written consent from property managers outlining the allowable
enforcement on their property.
The licensee and operators shall report to the Avon Police Department within thirty (30)
days of their one year anniversary date as listed on the Vehicle Impoundment Employee
Background Form or last CBI Public Request for Arrest Information Form to complete a
new CBI Public Request for Arrest Information Form.
a. The employee shall bring a money order for $13.00 made out to the Colorado
Bureau of Investigations (fee subject to change).
RECORDS:
1. The parking enforcement company shall affix a notice to a vehicle that has been
immobilized as specified in Section 5.12.110. The notice shall contain the name, address,
telephone number and license number of the company. It shall also contain the removal
fee and right to request a post- seizure hearing and have the boot removed within ninety
(90) minutes of contacting the company. The notice shall also list the owner or manager
authorizing the boot and signature of the operator.
2. A receipt shall be given to the individual making payment for the boot removal. The
receipt shall list the fees collected and advisement of the right to request a post- seizure
hearing.
3. The parking enforcement company shall keep a copy of the receipt for one year (this only
fulfills the requirement of these rules. Other laws may require maintenance of records for
a longer period).
a. The company may use a triplicate form to meet the above rules. An example of
an acceptable form is attached and may be requested in an electronic format.
4. The operator shall maintain a daily log of the vehicles that are booted and provide that
log to the Avon Police Department before the end of the business day following
immobilization of a vehicle. The company shall maintain a copy of the logs for one year.
An example of an acceptable form is attached and may be requested in an electronic
format.
5. The Licensee shall maintain an employee file for each operator for the term of
employment or until one year has passed from separation for the purpose of verifying
compliance with these rules (other laws may require employee files to be maintained
longer). The file shall contain:
a. Copy of the Vehicle Impoundment Employee Background Form.
b. Proof of "basic" training completed by the licensee.
c. Court subpoenas related to vehicle impoundment cases.
6. The owner or person in lawful possession of private property, or the agent or employee of
either of them, shall give written consent to the parking enforcement company to
immobilize vehicles for the purpose of parking violation enforcement and this shall be
maintained by the Licensee. The consent shall include:
a. List the specific violations the operator is permitted to immobilize a vehicle for.
b. The method to verify and confirm that a violation took place.
c. Hours of the day that enforcement is permitted.
d. Example of valid permits (if used).
e. Method to contact the property manager 24 hours a day to confirm enforcement
during disputes.
l_7
EQUIPMENT:
1. Vehicles shall be clearly marked with the business name and Avon license number and
must have a blinking amber light on the top of or above the vehicle when engaged in
booting operations and operators are required to wear reflective traffic safety vests.
2. The Licensee shall maintain an inventory of boots with their serial numbers.
3. The boots shall be marked with the business name.
OPERATIONS:
1. Vehicles may not be immobilized for license plate violations.
2. Government or emergency vehicles shall not be immobilized. If an undercover police
vehicle is immobilized it shall be released once identified as such.
3. Vehicles shall only be immobilized in accordance with the consent authorization as
specified by the property manger.
SIGNAGE:
1. The attached rules governing the use of signs as approved by the Community
Development Department shall be adhered to.
2. Damaged or faded signs shall be replaced in a reasonable time period.
11Z
ATTACHMENT B
Name of Parking Enforcement Company
Address
24 Hour Phone Number:
Avon Business License #:
Vehicle Type/Description:
Vehicle License Plate/State:
Property Name /Location:
Property Owner /Agent Authorizing:
Date/Time of Immobilization:
Signature of Booting Operator:
Violation Type:
Boot #:
This vehicle was immobilized (booted) by the property owner for a private property parking
violation as outlined in Avon Municipal Code, Title 5. The Town of Avon was not involved in
the action. The owner or operator of the vehicle may request a hearing by one of the following
methods:
(1) by providing a written request, to the Avon Municipal Court Clerk for a post -
seizure hearing to contest the booting within ten (10) calendar days of the date the
vehicle was booted; or
(2) by appearing in person at the Avon Municipal Court within a ten (10) calendar
day period from the date on which the boot was placed on the vehicle and
requesting an initial appearance before a Hearing Officer.
If a hearing is requested, the losing party shall be assessed a minimum hearing cost of one
hundred dollars ($100.00) and shall be required to pay for translation services, if used during the
hearing. The Hearing Officer has the discretion to waive court costs.
The Boot may be removed by calling the 24 hour phone number above. Do not attempt to
move this vehicle or remove the tire lock. Doing so will cause damage and the violator is
liable for damage.
The boot removal fee of $ shall be paid in cash at the time of boot
removal. The boot shall be removed within ninety (90) minutes of contacting the parking
enforcement company.
Date/Time of Boot Removal:
Removal Fee Collected:
Signature of Vehicle Owner /Operator (NOT REQUIRED):
Signature of Booting Operator:
Booting Operator Notes:
White — Company Blue — Receipt to Vehicle Owner Yellow — Vehicle
ATTACHMENT C
Name of Parking Enforcement Company
Address
24 Hour Phone Number:
t 7_L!_7_ T__ _1_•1• T
V G1111:1C 111111MUllizatlVi1 LV
Date Time I Location I Plate# /State VIN
White — Company Yellow — Avon PD
ab
ATTACHMENT D
Town of Avon
Vehicle Impoundment Employee Background Form
Within three (3) days of hiring a new operator the Licensee shall require the employee to appear at the Avon Police
Department to complete a background check. The employee shall provide:
1. A valid U.S. government or state issued identification card with a picture.
2. A valid Colorado driver's license, if the employee will be required to drive.
3. Total of $60 in cash or money order made out to the Town of Avon
a. $10 fingerprinting fee
b. $50 background investigation fee
4. $18 money order made out to the Treasury of the United States
5. $16.50 money order made out to the Colorado Bureau of Investigations
Employee Last Name:
First Name:
Middle Name:
Date of Birth:
I.D. Type/Number:
Social Security Number:
DL Number:
Address:
PO Box:
City /Zip:
Phone #:
Company Name:
I authorize the Avon Police Department to complete my background check for the purpose of
verifying compliance with Chapter 5.12 of the Municipal Code. I have not been convicted of a
felony, theft, embezzlement or any offense involving the unlawful use, taking or conversion of a
vehicle belonging to another person.
Employee Signature: Date:
APD Use
❑
Local Records Check Completed
By: Date:
❑
FBI fingerprint results Obtained
By: Date:
❑
CBI Fingerprint Results Obtained
By: Date:
❑ The employee has been approved to operate in accordance with the provisions of Chapter
5.12 of the Municipal Code. However, this status may change if further information, such as
fingerprint results, is received at a later date that would cause a denial.
❑ The employee has been denied authorization to immobilize or tow vehicles within Avon.
The employee may come to Avon PD to request the reason and appeal the decision.
APD Vehicle Impoundment Coordinator: Date (Anniversary):
(Employee is required to appear at Avon PD within 30 days of one year from the anniversary date to complete an
annual records clearance to assure compliance with Chapter 5.12)
;Q