Peoldl'l

State

Ofce of Administrative Hearings

:aiea

lol

is

9ZELSDSLZ

Lesli Gr

Ginn

ChiefAdministrative

Law Judge

)unoaov

:JaqlllnN

December

15,

2016
299;

VIA [NTERAGENCY

Brian Francis
Executive Director

Texas Department of Licensing and Regulation

920 Colorado, 4 Floor
Austin, TX 78701

pzoidn

:uondinsaa

Docket No. 452-165522.TOW; Atlas Towing and Storage LLC d/b/a

Atlas Towing and Storage LLC v. Texas Department of Licensing and

RE:

Regulation

GddZZSS-el

Dear Mri Francis:

Please

nd enclosed a Proposal

and underlying

Code

rationale.

for Decision in this case. It contains

my recommendation

Exceptions and replies may be filed by any party in accordance with

15550782). a SOAH rule which may be found at www.soah.state.tx.us.

Texi Admin.

S incerelyi

Casey A. Bell

Administratc law Judge

CAB/mm

Enclosures (with
.\C'

CD)

Michael Shirk. Staff Attorney: Texas Department of Licensing and Regulation, 920 Colorado
Austin. TX 78701 7 VIA INTERAGENCY
R. David Fritscltci Law Ofces ofR David Fritsche 921 Proton Rd San Antonio. TX 78258 -

REGULAR MAIL

300 W

15h

PO, Box 13025, Austin. Texas 78711-3025

5114754993 (Main) 3121475.3445(Docketing)2.4754994 (Fax)
www.mahvtexasgov

Street Suite 504, Austin. Texas 78701/

4 Floori

SOAH DOCKET NO. 452-16-5522.TOW

TDLR NOS. TOW20160014947 and TOWZOI60014956

TEXAS DEPARTMENT OF
LICENSING AND REGULATION,

BEFORE THE STATE OFFICE

Petitioner

v.

ATLAS TOWING AND STORAGE, LLC,

Respondent

OF

ADMINISTRATIVE HEARINGS

PROPOSAL FOR DECISION

The
to

of the Texas Department of Licensing and Regulation (Department) seeks

staff (Staff)

impose administrative penalties

license of Atlas

Towing and

nonconsent tows

at times that

posted

at the

parking

totaling $8,000

LLC

Storage,

on and the revocation of the towing company

Staff contends that Atlas performed two

(Atlas),

were outside the hours of towing enforcement indicated on the sign

from where Atlas towed the

lot

authorized under the Texas

Towing and Booting Act

Chapter 2308i and therefore violated Department

vehicles, such that the

(the Towin}:I Act).

tows were not

Texas Occupations Code

After considering the evidence and

rules.

arguments presented, the Administrative Law Judge (ALJ) concludes that Staff met
prove that the nonconsent tows

Department
Atlas.

rules.

The ALJ recommends

However, the ALJ recommends

that instead Atlass license be

I.

No

A. Bell

that Staffs proposal to

burden

to

of the Towing Act and

of $8.000 be assessed against

revoke Atlas's license be denied, and

suspended for two years.

PROCEDURAL HISTORY
Therefore, those matters are addressed

and Conclusions of Law. The hearing convened on October

at the State

Ofce of Administrative Hearings (SOAH)

Clements Building. 300 West 15th

and was represented by

in violation

that administrative penalties

party raised issues of notice or jurisdiction.

ALJ Casey

William

were performed

JURISDICTION, NOTICE, AND

solely in the Findings of Fact

before

at issue

its

staff attorney

Street.

12,

2016.

facilities in the

Fourth Floor, Austin. Texas, Staff appeared

Michael Shirk.

Atlas appeared and was represented by

SOAH DOCKET NO. 45216-5522.TOW

The record closed on November

attorney David Fritsche.

were led by the

PROPOSAL FOR DECISION

is

2016,

after written closing

arguments

parties.

SUMMARY OF THE CASE

II.

Atlas

91

PAGE 2

licensed by the Department as a

tow company under

number 0065053610

license

Late on the evening of March 19, 20161 and early on the morning of March 20, 2016. Atlas

performed nonconsent tows of two vehicles parked

these vehicles (the Health Texas

occurred

at

The

lot.

the sign indicated that towing

Department

rules.

in

San Antonio.

where Atlas towed

Health Texas contracted with Atlas for towing services

lot).

am. on March

a sign located in the Health Texas lot

at issue

the parking lot from

tow took place atjust before midnight on March

rst

approximately 1:00

nonconsent tows

615 Northwest Loop 410

Group (Health Texas) owns

Texas.l Health Texas Medical

Health Texas

at

20.

19,

and the second tow

At the time the tows were performed,

which prohibited unauthorized

vehicles.

at the

there

According

would he enforced between 2 am. and 6 p.m., and

that

was

to Staff,

because the

occurred outside such time period, Atlas violated the Towing Act and

For these alleged violations, and based on Respondents history of past

violations, Staff seeks to

impose a $4,000 administrative penalty on Atlas

for

each of the tows, and

revoke Atlass towing company license. Respondent takes the position that the sign meets the

to

requirements of the Towing Act such that the nonconsent tows were permitted and Atlas committed

no violations of the Towing Act

or

Department rules.

111.

The Department. through

enforce the

Towing

Act,2

As

its

APPLICABLE LAW

executive director, has statutory authority to administer and

the party bringing this enforcement action against Atlas, Staff bears

the burden of proof in this proceeding,3

Nonconsent tows are tows of motor vehicles when the tow truck |5 not summoned by the owner or operator oftlic
someone in possession custody" or control of the vehicles. Tex. Occ. Code 23080020). (6): 16 Tex.
Admin. Code 8610(5) (13).

vehicles or
3
"

Tex. Occ.
1

{5

Code

Tex. Admin.

2308.056.

Code

155.427.

SOAH DOCKET NO. 452A16-5522tT0W

PROPOSAL FOR DECISION

Under the Towing Act. an unauthorized vehicle

commercial parking

lot

is

without the owners consent"

PAGE 3

a vehicle parked or located in a

towing company may not tow an

unauthorized vehicle except as allowed under the Towing Act. a municipal ordinance that complies
with the Towing Act, or

at

the direction

ofa peace ofcer or the owner ofthe

Act permits the owner of a commercial parking

lot to

cause an unauthorized vehicle to be towed

the vehicle

owners expense without the vehicle owners consent

Subchapler

G of the Towing Act prohibiting unauthorized vehicles are

the time of towing and for the preceding 24 hours

among

Subchapter G,

The Towing

vehicle.5

and remain

if

signs that

at

comply with

located at the parking

installed at the time

lot at

of towing.6

other requirements, mandates that signs prohibiting unauthorized vehicles

contain[s] a statement of the days and hours of towing and booting enforcement.7

If a towing

Towing Act

or

company

is

Department

rules,

may impose an

(Commission)K

found

to

the

have conducted a noneonsent tow

in violation

of the

Texas Commission of Licensing and Regulation

administrative penalty on the towing

company and suspend

revoke the towing companys license.9 The amount of the administrative penalty

may

or

not exceed

$5.000 per day for each violation and must be based on the seriousness of the violation, the history
of previous violations, the amount necessary to deter future violations, efforts made to correct the
violations.

As

and any other matter thatjustice may

require.10

required by statute. the Department has promulgated an Enforcement Plan setting forth

the specic ranges of penalties

and license sanctions

that

it

applies to specic alleged violations for

each type of person and entity regulated by the Department.H According to the Enforcement Plan.

when allowed by

the penalty for a rst violation of towing a vehicle other than

Tex. Occ. Code

2308.002(7). (8), (l3).

Code

23082550;

Tex. Occ.

we also

"

Tex. Occ. Code 2308.252(a)(1)

Tex. Occ, Code

meet.

2308.30](b)(6). This

16 Tex.

is

The Commission

Tex. Use. Code 51.30l. 353(a). 2308.50l(a).

"

Tex. 000. Code

the governing

86.705(d)r(e).

the only requirement for the Sign at issue that Staffcontends Atlas failed to

is

Admin. Code

law, a Class F

body oflhe Department. Tex. Occ. Code

SLOSI.

51 302(a)-(b).

Tex. Occ, Code SI 302(c); Department Enforcement Plan. available at Iiiips:;[\\uv.idlr_[exits g0): gnl'ni'ccin_cm,_lum
accessed December 14. 2016). A copy ofthe Enforcement Plan was admitted into evidence as Staff Ex, 4,

(last

SOAH DOCKET NO. 452-16-5522.TOW

violation, is $2,000; the

$3,000 and a l-year

to

recommended penalty and sanction

full license

F violation

third Class

PROPOSAL FOR DECISION

is

suspension; and the

counted as violations

if

second Class F violation

is

for a

a $3,500 to $4,000 and a lyear license suspension up to license

Towing Act

or Department rules are

they result in an Agreed Order entered by the Commission,13

administrative penalty or license revocation

to a contested

$2,500

recommended penalty and sanction

Previous complaints alleging violation of the

revocation.2

has the right

for a

PAGE 4

is

If

an

proposed by the Department, the towing company

case hearing at SOAll.M

IV.

DISCUSSION

Evidence

A.

At the hearing, Staff presented testimony from Atlass vice president and general manager
Ricardo Vcnegas; Alethea Andrade and Nora Ramirez, the owners of the two vehicles involved in
the nonconsent tows at issue in this case; Melanie Cofresi. another person

Texas

lot

on March

Police Department
into evidence.

from Atlas
Docket

19.

at

the Health

20l6; and Detective Tony ArcuriV a peace ofcer with the San Antonio

(SAPD) who

investigated the tows in question.

The ALJ admitted 14 of

to Staff Exhibit 18.

No

who parked

Staff also offered 15 exhibits

the exhibits without objection.

a proposal for decision (PFD) issued by

In response to objection

ALI Sarah Ramos

45216-0050 (a case which also involved Atlas), the ALJ did not admit the

in

SOAH

PFD

into

evidence but did take judicial notice of the PFD. Respondent offered testimony from Mr. Venegas
as well as from

two

Ruben

Solis. Facilities Operations

exhibits. both of which

were admitted

Manager

for Health Texasi

Respondent offered

into the record.

Stall Ex. 4 at 6, According to the Enforcement Plan. Class F Violations involving removal ofa vehicle other than
allowed by law pertain to Tex, Occ. Code 230825503) and I6 Tex. Admin. Code 86.705(d).
I:

StaffEx. 4 at
Tex. Occ.

l.

Code

Sl.354(a)-(b). 230850107).

SOAH DOCKET NO. 45216-5522.TOW

PROPOSAL FOR DECISION

PAGE 5

Ricardo Venegas

1.

Mr. Venegas identied Staff Exhibits 10 and 14 as the tow tickets issued by Atlas for the

two nonconsent tows

at issue,

He

and acknowledged that Atlas made the towsi

Exhibit 11 as a photograph of the sign that was posted at the Health Texas

nonconsent tows were performed. Mri Venegas stated

been posted

in the

Health Texas

lot

lot at the

lot,

He explained

time the two

that the Sign depicted in Staff Exhibit

had

long before the nonconsent tows in question were conducted

Mr. Venegas then identied Staff Exhibit 12 as a photograph of a Sign

the Health Texas

also identied Staff

that Atlas

changed the sign photographed

that is

now

posted at

in Exhibit 11 the

day

TOWING
ENFORCED BETWEEN 2AM-6PM, the Sign reads TOWING ENFORCED AT ALL TIMES
AND DAYS? Mri Venegas explained that Atlas used red tape to cover up the phrase TOWING
ENFORCED BETWEEN 2AM-6PM" that was printed on the Sign, and then printed the phrase
TOWING ENFORCED AT ALL TIMES AND DAYS onto the red tape. According to
after the

two nonconsent tows

at issue

were conducted, so that instead of reading

Mr. Vencgas and Atlass discovery responses, Health Texas did not direct or authorize Atlas

make

this

change

to the

language on the sign.16 Atlas made

on March 20. 2016, and took the position

that

it

made

this

change

to the

to

language on the sign

was

the change because there

a de minimis

issue with the sign.17

Mr. Venegas stated that Atlas towed nine vehicles from the Health Texas

began towing vehicles on March 19

until

it

1)

from the time

nished early on the morning of March 20.

estimated that Atlas towed ve of those vehicles from the Health Texas

March

lot

lot

between

11

it

He

pm on

and 2 am. on March 20.

According

to

Mr. Venegas, six of the vehicle owners led cases in Justice of the Peace (JP)

courts in San Antonio to challenge the nonconsent tows from the Health

Compare

'

Staff Ex. 19 at 61

"'

StaffEX. 19

Staff Ext 11 with Staff Ex. 12.

at 6.

Texas

lot

on March 19

SOAH DOCKET NO 452-165522.TOW

and 20.18 He

PROPOSAL FOR DECISION

PAGE 6

stated that he represented Atlas in each of the six cases in JP court.

and claimed

that

only one of the six vehicle owners was successful in challenging the tows. Mr. Venegas identied

Respondent Exhibit Rl as a JP judgment from one of the

six cases in

which the JP found

that

probable cause existed for the tow; Respondent Exhibit Rl pertains to the nonconsent tow of

Ms. Ramirezs

vehicle.19

Mr. Venegas identied Respondent Exhibit

R2

as a

JP judgment on the

hearing requested by Ms. Andrade to the nonconsent tow of her vehicle from the Health Texas

on March
for the

19.

Respondent Exhibit R2 indicates

that the

lot

JP found that probable cause did not exist

nonconsent tow of Ms. Andrades vehicle and awarded her $219. Mr. Vencgas testied that

Atlas has appealed the

Mr. Venegas

.ludgment

in Ms. Andrades favor to the

testified that the

Department

initiated this

Bexar County Court

at

Law.20

enforcement action prior to the JP

court hearings, and that the Department became aware of the nonconsent tows through a local
television report.

He claimed that Detective

Arcun' informed Ms. Andrade and Ms. Ramirez of the

process for ling complaints about Atlas with the Department,

provides required notice to vehicle owners,

when

Atlas, of the process for filing complaints about the

2.

Mr. Venegas admitted

that Atlas

they pick up vehicles that have been towed by

tows with the Department.

Alethea Andrade

Ms. Andrade

testified that

she paid $219.40 to Atlas to retrieve her Nissan Altima from

Atlas's vehicle storage facility after Atlas towed her vehicle from the Health Texas lot just before

midnight on March

l9.

She testied that she signed

the

tow ticket that Atlas provided her when she

retrieved her vehicle early on the

morning of March

her car in the Health Texas lot

sometime between 8:30 and 9 pm. She then went

at

20.22

According

to

Ms. Andradei, she parked

to the Hilton

of the Towing Act. owners of vehicles that have been rowed without their consent are entitled to
county from which the vehicles were towed on whether probable cause existed for the
tow. See Tex. Occ. Code 2308.4522453. .458. [fan owner ofa towed vehicle prevails in such a hearing, the towing
company or parking lot owner must pay the towing costs and the court can award attorneys fees and court costs. Tex.
Occ. Code 2308i451tl), 458(c)(1).
1"

Under Subchapter

a hearing

in a justice court in the

Responder)! Ex. R],

Respondent Ex. R2. The notice ofappeal led by Atlas

is

included in the record in this case. 1d. ai

4.

M Mr, Venegas also agreed that the tow tickets issued

by Atlas to Ms. Andradc and Ms, Ramirez contain a notice
how to direct complaints about their vehicle storage to the Department. See Staff Ex. [0 at 2; Staff Ex. 14 at 3.
11

See StaffEx.

10,

about

SOAH DOCKET NO. 452-16-5522.TOW

PROPOSAL FOR DECISION

members of

hotel next door to attend a salsa concert with

Ms. Andrade identied Staff Exhibit

Health Texas
sign stated

lot

when

NO HILTON PARKING ALLOWED,"

would be leaving before 2 am. and

2AM6PM. Ms. Andrade

any towing

until

at the

She

Health Texas

of the sign that was posted

She

19.

to.

in the

stated that even though the

she thought she could park there because she

TOWING ENFORCED BETWEEN

based on that statement, she did not believe there would be

when

20, her car

lot

March

the sign stated

testified that

am. on March

approximately 12:30
people there

stated that

am.

a salsa club that she belongs

ll as a picture she took

she parked her vehicle there on

PAGE 7

who had

she returned to the Health Texas lot

was not

She stated

there.

also arrived

from the

that there

at

were other

salsa concert to

nd

their

vehicles towed away.

Msr Andrade testied

retrieve her vehicle

already there

When

who had been

rode with a friend to the Atlas vehicle storage

that she

facility to

she arrived at the vehicle storage facility, there were ve other people
at

Atlas from the Health Texas

the concert at the Hilton and

lot.

Ms. Andrade testied

whose vehicles had

that she

questions of the Atlas employees at the storage facility as to

the enforcement hours indicated on the Sign.

and did not provide any answers

She

been towed by

and the other concertgoers asked

why their

vehicles were towed outside

stated that the Atlas

to their questions, so

also

employees were combative

one of the concertgoers called SAPD.

When

police arrived. they interviewed Ms. Andrade.

Ms. Andradc conrmed

that she requested a hearing with a

towing of her vehicle by Atlas from the Health Texas

and provided testimony, and

the towing costs.

that the

JP found

lot.

in her favor

However. Ms, Andrade testied

JP

in

San Antonio

She stated that she went

and ordered Atlas

that Atlas has not

to

to dispute the

to the

JP court

reimburse her for

refunded her

money and

has

instead appealed the JP court ruling.

Ms, Andrade

also filed a complaint with the Department regarding Atlass towing

from the Health Texas

Department because
that

lotr

SAPD

According

had alerted her

any complaints should be directed

she was interviewed

to

Ms. Andrade. she knew

to

of her car

le her complaint with the

to a sign at the Atlas vehicle storage facility indicating

to the

Department. She stated that

at the storage facility that the

SAPD

had told her

after

matter was out of their hands. After she tiled

SOAH DOCKET NO. 452165522.TOW

PROPOSAL FOR DEClSlON

was contacted by Chris

the complaint, she

a Department investigator, and Detective Arcuri

Bell,

regarding her complaint. Ms. Andtade testied that

knew about

PAGE 8

when he

called her, Detective Arcuri already

her complaint to the Department and, after asking her to recount what had occurred on

the evening of

March

19 and morning of

March

20. informed her that

from

that point forward her

complaint would be handled by the Department and not SAPD.

Regarding her parking

at the

Health Texas

lot

on March

read the sign before she parked and that she did notice that

allowed. She also

is

saw that the

it

19,

Ms. Andrade

stated that she did

was no Hilton parking

stated that there

TENANTS & CUSTOMERS ONLY," and admitted she

sign stated

not a tenant of the Health Texas building or a Health Texas customer. She testied there was also

a sign in the parking

park

at the

lot near the entrance

and

exit to the Health

Hilton because the parking lots there were

Texas

Ms. Andrade did not

lot.

full.

Nora Ramirez

3.

Ms. Ramirez testied

between 8:30 and 9

that she

pm. on March

RAV4 at the Health Texas lot at some time

parked her Toyota

19,

and

that her car

was

later

towed from

the lot

by Atlas, She

identied Staff Exhibit 14 as the tow ticket from Atlas that she signed at the time she retrieved her
vehicle from the Atlas vehicle storage facility early on the morning of March 20. Ms. Ramirez paid
Atlas $219.40

in

towing fees before her car was released

Health Texas

lot to

Health Texas

lot,

attend the salsa concert

at

to her.

Ms. Ramirez had also parked

in the

the Hilton next door. She stated that she parked in the

even though the sign posted there stated

that there

was no Hilton parking allowed,

because she saw the hours of towing enforcement indicated on the sign and knew she would leave
before towing would be enforced. Ms. Ramirez testied that
lot at

1:10

am. on March

nd someone who could

nding a
lotto

ride.

20, her vehicle

was no longer

when she returned

there.

She went back

conrm her car had been towed and nd

her of the cars location. she

was given

six people that

towed from the Health Texas

lot

out where her car

in the

After

Health Texas

located. After Atlas informed

a ride to the Atlas vehicle storage

had attended the concert

by Atlas.

was

Texas

inside the Hilton to

take her to the Atlas vehicle storage facility to retrieve her car.

she went back outside and called the phone number on the sign

Ms. Ramirez, she knew

to the Health

at the

facility.

According

to

Hilton and had their vehicles

SOAH DOCKET NO 452-!6-5522.TOW

PROPOSAL FOR DECISION

Like Ms. Andradc, Ms. Ramirez requested a hearing

PAGE 9

JP court

at a

in

San Antonio

to

challenge Atlass towing of her vehicle. In her case. the JP found that Atlas had probable cause to

tow Ms. Ramirezs

vehicle.

She

said that she inquired about an appeal

of the JPs decision, but by

the time she did so. she had already missed the deadline to le an appeal. Ms. Ramirez also filed a

complaint against Atlas with the Department and was interviewed by and exchanged emails with

Mr.

Bell, the

Department

investigator, regarding her complaint.

She

stated that

an

SAFD

ofcer

at

the Atlas vehicle storage facility pointed her to a sign there indicating that complaints regarding

towing should be directed

to the

Department. After the

SAPD

ofcer was unable to convince the

Atlas employee at the storage facility that Ms. Ramirez should not he charged for the tow, she

decided to

file

her complaint. Ms. Ramirez stated that she spoke with Detective Arcuri regarding

her complaint to the Department.

He

told her that he

was

in

communication with the Department

about her case and that he was investigating her complaint.

When questioned
Ms. Ramirez stated

about the sign at the Health Texas

that she understood there

lot

and how she interpreted

was no Hilton parking

its

in the Health

meaning,

Texas

lot.

However, she did not think she would be towed since she was parked there outside of the hours that,
according to the sign, towing would be enforced, Ms. Ramirez also understood from the sign
Health Texas

lot that

only tenants and customers of Health Texas or

Detective

4.

tenants should park there.

is

part

of the SAPDs auto

theft unit.

on March 19 and 20 by Atlas. Detective Arcuri stated that he was asked

lot

to investigate so that

SAPD

outlet.

He

rst

went

could respond to inquiries regarding these allegations from a local

to the Health

Texas

lot

on March 31. Detective Arcuri identied Staff

Exhibit 12 as photographs that he took that day of the Sign posted in the
sign had been altered by placing red tape with the phrase

phrase

BETWEEN 2AM~6PM"

just

below the phrase

investigation. Detective Arcuri determined that six cars

lot

He was contacted by

public information ofcer and asked to investigate allegations of illegal towing of cars

from the Health Texas

media

the

Tony Arcuri

Detective Arcuri testified that he

SAPDs

its

at

lot.

AT ALL TIMES

He explained

that the

AND DAYS" over the

"TOWING ENFORCED.

Based on his

were towed by Atlas from the Health Texas

between 8 p.m. on March 19 and 2 am. on March 20. He interviewed the owners of those

SOAH DOCKET NO. 452-16-5522.TOW

PROPOSAL FOR DECISION

No criminal

vehicles as part of his investigation.

and he turned over

PAGE 10

charges were filed as a result of his investigation,

his investigative le to the Department.

Detective Arcurl claimed that Atlas

violated the law by altering the sign to change the enforcement hours without authorization from

Health Texas,

In

violations of the

reviewing the photographs of the signs in evidence, he could not identify any

Towing Act statutes

pertaining to the requirements for such signs.

Melanie Cofresi

5.

Ms. Cofresi also parked her vehicle

in the

Health Texas

She returned

attended the salsa concert at the Hilton.

lot

on the evening of March 19 and

to the lot before 2

am. on March

20. and

although her car had not been towed, more than five other vehicles had been towed from the

Ms. Cofresi gave Ms. Andrade a ride

to the Atlas vehicle storage facility to retrieve her car.

Ruben Solis

6.

As
companys

the Facilities Operations

Manager

for Health Texas,

Mr, Solis deals with vendors on the

behalf, including Atlas. Mr. Solis testied that Heali

Texas had an arrangement with

Atlas whereby Atlas would tow unauthorized vehicles from the Health Texas
allegations regarding the nonconsent towing of vehicles by Atlas
local television report.
that. the

He learned

lot.

on March 19 and 20 through a

Mr. Solis spoke one time with Detective Arcuri about the incidents. but

to

Mr.

Solis.

Health Texas relied on Atlas to comply with

regulations concerning the signs in the Health Texas lot and any towing of vehicles
lot.

He

stated that parking

rents additional parking spaces

is

lot

very limited at Health Texas, and that the

all

rules

after

at

the Health Texas

indicating that no Hilton parking

was allowed.

lot.

there

and

from the Health

company

actually

from another property owner next door, Mr, Solis testied

addition to the signs posted by Atlas

Texas

of the

Health Texas Chief Operating Ofcer handled the matter for the company.

According

Texas

lot.

was another sign

at the

that in

Health

SOAH DOCKET NO. 452-16-5522.TOW

Parties

B.

facts are not in dispute:

their consent

20. Neither

the Hilton next door,

lot

sometime between 11:00 pm. on

Ms. Andrade nor Ms. Ramirez was a tenant or a

customer of a tenant or Health Texas; they parked

at

11

both Ms. Andrade's and Ms. Rarnirezs vehicles were

by Atlas from the Health Texas

March 19 and 1:10 am. on March

concert

PAGE

Arguments

The relevant
towed without

PROPOSAL FOR DECISION

in the

The Sign posted by Atlas

Health Texas
in the Health

lot

and went

Texas

to a salsa

lot at the

time the

vehicles were towed read as follows:

TOWING ENFORCED
BETWEEN 2AM6PM
NO HILTON PARKING ALLOWED
PARKING FOR BLDG
TENANTS & CUSTOMERS ONLY
UNAUTHORIZED VEHICLES WILL
BE TOWED AT OWNERS
OR OPERATORS EXPENSE23
Staff contends that the nonconsent towing of Ms, Andrades and Ms. Ramirezs vehicles by

Atlas violated the

enforced from 2

Towing Act and Department

am.

to 6

pm. and

rules because the Sign indicated that

towing was

As

Staff notes,

the tows occurred outside that time frame.

pursuant to Texas Occupations Code 2308,301(b). an unauthorized vehicle can only be towed
the Sign prohibiting unauthorized vehicles contains a statement of the days

enforcement.

if

and hours of towing

In Staff1 5 view, although the sign contained a statement regarding hours of towing

enforcement, they were false or intentionally deceptive because Atlas towed vehicle outside the
posted enforcement hours. According to

Staff, the intent

behind the legislative requirement for the

sign to contain a statement of the hours of towing enforcement

was

to prohibit a

making nonconsent tows outside those hours. Therefore, Staff contends

vehicles other than

when allowed by

Staff Ex. 11.

that Atlas

towed the two

law. and by doing so committed two separate Class F

violations under the Departments Enforcement Plan,

33

tow company from

Based on these Class F violations and

SOAH DOCKET NO. 452-l6~5522.TOW

F

previous Class

PROPOSAL FOR DECISION

PAGE

violations by Atlas, Staff recommends revocation of Atlas's license

l2

and an $8,000

administrative penalty.

Respondent claims that the sign

and

2308.30l(b),

that Staff

at issue

met the requirements of Texas Occupations Code

and Detective Arcuri admitted as much. According

to

Respondent,

because the signs met the statutory requirements, and because Ms. Andrade and Ms. Ramirez
admitted that they parked
these

C.

at the

lot

and went

to the Hilton in violation

sign,

Analysis and Conclusion

Ms. Ramirezs vehicle

evidence shows that Atlas towed Ms. Andrades and

the

in violation of the

Towing Act and

the Departments rules.

It is

undisputed

on March 19 and March 20, 2016, when Atlas towed these cars from the Health Texas

sign prohibiting unauthorized vehicles contained a statement that towing

of the

was not unlawful tows,

The preponderance of
that

Health Texas

the

was enforced between

pm.

Atlas towed Msr Andrades and Ms. Ramirezs cars from the Health Texas lot

pm. and

before 2 arms at times that were outside of the hours of towing enforcement

am. and

after ll

lot,

indicated by the sign.

While the Sign

at the

Health Texas lot did contain a statement regarding

hours of towing enforcement, they were clearly not the true and accurate hours that applied to the
Health Texas

lot.

because by

outside of those hours. Atlas

that

its

own

was obviously aware

towing was enforcedl given that

very same day

enforced on

all

it

admission. Atlas towed

it

amended

towed Ms. Ramirez's car so

days

at least

ve vehicles from

the lot

that the Sign did not accurately reect the hours

the sign. without consent from Health Texas, the

that

it

then contained a statement that towing was

at all times.

Respondents argument that the sign met the requirements of Section 2308.301(b)(6). and
therefore

its

towing of Ms. Andrade's and Ms, Ramirezs vehicles was authorized under the Towing

Act. strains credulity.

Taking Respondents argument

to its logical conclusion, for

Atlass towing of Ms. Andrades and Ms. Ramirezs vehicles

example.

would have been permitted under the

Sea Staff Exs, 6-9, which are three prior Commission decisions nding a total of ve Class F Violations and one
agreed order issued by the Departments Executive Director pertaining to allegations ofa sixth Class F violation.

SOAH DOCKET NO. 452-16-5522.TOW

Towing Act
12:00

pm.

any hour on any day even

at

12:0l

to

PROPOSAL FOR DECISION

enforcement hours was

pm.

The

if

the sign indicated that towing

13

was enforced from

of the statutory requirement of posted towing

clear intent

owners and operators on notice as

to put vehicle

PAGE

to

when their

may

vehicles

be towed, and thus to permit towing only during the hours posted. To nd that Atlass tows of

Ms. Andrades and Ms. Ramirezs vehicles were

legal

under the Towing Act because the sign

contained a statement of hours of towing enforcement that Atlas did not comply with would be an

absurd result

in

conict with the intent of the statute,

Towing companies such

The ALJ nds

requirements of the Towing Act.

violation of

its

own

Towing Act and

230825503) and 16 Texas Administrative Code

According

to the

towed these vehicles

therefore violated Texas Occupations

86.705(d)

and

in

when allowed by

sanction for the instant violations

is

Towing

that

Act,

removed Ms. Andrades and Ms, Ramirezs

to

have

were the subject of prior contested case hearings.25

Agreed Order issued by

concerning a sixth Class F violation.26

to the

Based on the evidence, Atlas has been found

law,

committed ve previous Class F violations

Further, Atlas entered into an

it

Code

(e).

Departments Enforcement Plan developed pursuant

Atlas committed two Class F violations because

vehicles other than

that because Atlas

the

statement on the sign regarding the hours of towing enforcement, the tows did

not meet the requirements of the

tow an unauthorized vehicle except under

as Atlas cannot

the Departments Executive Director

Therefore. under the Enforcement Plan. the proposed

a $3,500 to $4.000 penalty per violation, coupled with a lvyear

suspension up to revocation ofAtlass license.

These violations by Atlas are serious

towing enforcement and resulted
morning.27

The evidence

in

further

two

shows

in that the

women

tows were made outside the posted hours of

being stranded without vehicles very early in the

that there

were several other tows made by Atlas

evening and early morning outside of the posted towing hours.

3"

StaffExs. 6. 3.

that

Atlas clearly understood the

9.

Staff Ex. 7. The evidence also shows that Atlas had two other prior orders addressing additional violations. although
they were not Class F violations.
1

In analyzing the seriousness ofthe violations the ALJ did not consider the evidence offered by the Department in
closing argument. as it was not admitted into the record at the hearings

its

SOAH DOCKET NO 452l65522.TOW

problem. as

it

PROPOSAL FOR DECISION

PAGE

changed the statement on the sign regarding hours of towing enforcement the very

same day. Regardless, Atlas has not refunded

the towing fees to

Ms. Andrade or Ms. Ramirez and

has appealed the JPjudgment in Ms, Andrades favor ordering reimbursement of her towing

Based on the evidence, the AL] nds

penalties

it

The ALJ

Violations.

that Atlas has not previously

has been ordered to pay for previous violations of the

further finds that Atlas has

ALJ nds

[4

that additional penalties

Towing Act and Department

is

Finally, the

AL]

been suspended. the

combined with the administrative

sanction for these violations, and that revocation

rules.

will not be a sufcient deterrent for future

license has not previously

finds that

penalties. is the appropriate

not warranted at this time. Therefore, pursuant

to those ndings, the applicable provisions of the

Departments Enforcement Plan, the

been deterred by the

effort to correct the instant violations.

imposed against Atlas

However. because Atlass

a suspension of sufcient length.

made no

fees.

Towing Act and Department

ALJ recommends

the

rules,

Commission impose

and the

administrative

penalties against Atlas totaling $8,000, $4,000 for each violation, and suspend Atlass

tow company

license for a period of two years.

V.

1.

2.

4.

FINDINGS OF FACT

Atlas Towing and Storage, LLC (Atlas) holds tow company license number
issued by the Texas Department of Licensing and Regulation (Department).

00650536lC

The Department's staff (Staff) seeks administrative penalties totaling $8.000 against Atlas
and the revocation of Atlass towing license based on two nonconsent tows conducted by
Atlas that Staff contends were not authorized by law.

On

September 6, 20l6, Staff issued its First Amended Notice of Administrative Hearing to
Atlas containing a statement of the date: time, and location of the hearing; the legal authority
and jurisdiction under which the hearing would be held; the particular sections of the
statutes and rules involved; and a short, plain statement of the factual matters asserted.

The hearing convened on October

12. 2016. before Administrative Law Judge (ALI)

A.
Bell
Casey
at the State Office of Administrative Hearings (SOAH) facilities in the
William P. Clements Building. 300 West 15th Street. Fourth Floor. Austin, Texas. Statf
appeared and was represented by staff attorney Michael Shirk. Atlas appeared and was
represented by attorney David Fritsche, The record closed on November 9, 2016, after
written closing arguments were filed by the parties.

SOAH DOCKET NO. 452416<5522.T0W

PROPOSAL FOR DECISION

PAGE

15

Health Texas Medical Group (Health Texas) had an agreement with Atlas that was in effect
on March 19 and 20, 2016, whereby Atlas would tow unauthorized vehicles from a parking
facility owned by Health Texas and located at 615 Northwest Loop 410 in San Antonio,
Texas (the Health Texas lot).
Health Texas relied on Atlas to comply with all rules and regulations concerning the signs
prohibiting unauthorized vehicles posted in the Health Texas lot and any towing of vehicles
from the Health Texas lot,

On March

19, 2016.

sometime

after 11:00

pm. and before

12:00

am. Atlas [owed a Nissan

Altima owned by Althea Andrade, without her consent, from the Health Texas

lot.

On March 20,

RAV4 owned

2016, between 12:00 am. and 1:10 am. Atlas towed a Toyota
by Nora Ramirez from the Health Texas lot without Ms. Ramirezs conSent.

Ms. Andrades and Ms, Ramirezs vehicles, Atlas towed at least three other
vehicles from the Health Texas lot without their owners consent between 11:00 am. on
March 19 and 2:00 am. on March 20, 2016.
In addition to

10.

At the time Atlas towed vehicles from the Health Texas lot on March 19 and 20, 2016, there
was a sign located in the Health Texas lot which prohibited unauthorized vehicles. The sign
read as follows.

TOWING ENFORCED
BETWEEN 2AM6PM
NO HILTON PARKING ALLOWED
PARKING FOR BLDG
TENANTS & CUSTOMERS ONLY
UNAUTHORIZED VEHICLES WILL
BE TOWED AT OWNERS
OR OPERATORS EXPENSE
The

sign in the Health Texas lot prohibiting unauthorized vehicles had been posted in the
lot long before Atlas towed Ms. Andrades and Ms. Ramirezs vehicles.

Health Texas

On March

20. 2016, sometime after it towed Ms. Ramirezs car, Atlas changed the sign
posted at the Health Texas lot so that instead of reading

BETWEEN 2AM-6PM,"
DAYS.

the Sign read

TOWING ENFORCED
TOWING ENFORCED AT ALL TIMES AND

After they found rides from the Health Texas lot to the Atlas vehicle storage facility,
Ms. Andrade and Ms. Ramirez both paid Atlas $219.40 in towing fees before Atlas would
release their vehicles to them.

Ms. Andrade and Ms. Ramirez both led complaints with the Department against Atlas
the towing of their vehicles from the Health Texas lot.

for

SOAH DOCKET NO. 452~165522.TOW

PROPOSAL FOR DECISION

PAGE

[6

15.

Atlas has not refunded the towing fees paid by Ms. Andrade and Ms. Ramirez.

16.

Atlas towed Ms. Andrades vehicle from the Health Texas lot outside the hours of towing
enforcement as stated by the sign at the Health Texas lot at the time the tow was performed,
Atlas towed Ms. Ramirezs vehicle from the Health Texas lot outside the hours of towing
enforcement as stated by the Sign at the Health Texas lot at the time the tow was performed.

i8.

The Texas Commission of Licensing and Regulation (the Commission) issued a decision on
March 4. 2015, concluding that Atlas had committed two violations of the Texas Towing
and Booting Act (the Towing Act), chapter 2308 of the Texas Occupations Code. The
violations were Class F violations under the Departments Enforcement Plan adopted
pursuant to Section 5] 302(c) of the Texas Occupations Code.

The Departments Executive Director signed an Agreed Order on July 6, 2015, setting forth
factual allegations against Atlas that constituted a Class F violation according to the
Departments Enforcement Plan.
20.

On January

2016, the Commission issued a decision concluding that Atlas had committed
two Class F violations of the Towing Act and Department rules.
6,

On August 24, 2016, the Commission

a Class F violation of the

issued a decision concluding that Atlas had committed

Towing Act and Department rules.

VI.

CONCLUSIONS OF LAW

The Department has

jurisdiction over this matter and authority to assess an administrative

penalty against Atlas and suspend or revoke Atlass tow company license. Tex. Occ. Code
chs. 51 and 2308.

SOAH

has jurisdiction over all matters relating to the conduct of a hearing in this matter,
including the preparation of a proposal for decision with ndings of fact and conclusions of
law. Tex. Govt Code ch. 2003.

Timely and adequate notice of the hearing on the merits was provided

Code 2001.051-052

Staff has the burden of proof by a preponderance of the evidence.

155.427,

towing company

may

to Atlas. Tex.

Govt

Tex. Admin. Code

not tow an unauthorized vehicle except as allowed: (A) under the

municipal ordinance that complies with Section 2308.208 of the
Texas Occupations Code; or (C) by a peace ofcer or the owner or operator of the vehicle.
Tex, Occ. Code 2308.255.
the

Towing Act; (B)

SOAH DOCKET NO. 452-]65522.TOW

6.

PROPOSAL FOR DECISION

PAGE

[7

towing company may not tow an unauthorized vehicle unless authorized by Section
2308.255 of the Texas Occupations Code. 16 Tex, Admin. Code 86.705(d).

A parking facility owner may cause an unauthorized vehicle to be towed if signs that comply

with Section 2308.301-305 of the Texas Occupations Code are located on the parking
facility at the time oftowingt Tex. Occ. Code 2308.252(a)(]),

Except under an exception that is not applicable here, an unauthorized vehicle may not be
towed under Section 2308.252(a)(l) unless the sign(s) prohibiting unauthorized vehicles on
a parking facility contains a statement of the days and hours of towing and booting
enforcement. Tex. Occ. Code 2308.301(b)(6).
9.

A towing company may

vehicle

is

towed

Code. 16 Tex.

is in

not perform a nonconsent tow unless the property from which the
compliance with Sections 2308.301-305 of the Texas Occupations

Admin Code

86.705(e).

sign posted at the Health Texas lot when Atlas towed Ms. Andrades and Ms. Ramirezs
vehicles did not contain a true and accurate statement of the days and hours of towing

The

enforcement.
ll.

Atlas was not authorized under the

vehicles from the Health Texas lot.

12.

The Health Texas lot was not in compliance with Section 2308.301 of the Texas
Occupations Code at the time Atlas towed Ms. Andrades and Ms. Ramirezs vehicles

Towing Act

to

tow Ms, Andrades or Ms, Ramirezs

because the sign posted there did not contain a true and accurate statement of the days and
times of towing enforcement.

Towing a

vehicle other than

when allowed by law

Departments Enforcement Plan.

is

a Class F violation under the

The amount of an

administrative penalty assessed for a violation of the Towing Act or

Department rules must be based on the seriousness of the violation. the history of previous
violations, the amount necessary to deter future Violations, and efforts made to correct the
violations. Tex. Occ.

15.

Code

51.302.

For a 3rd Class F Violation, the Departments Enforcement Plan recommends a penalty of
$3.500 to $4,000 plus a 1-year full suspension up to revocation.

SOAH DOCKET NO. 452-16-5522.TOW

16.

PROPOSAL FOR DEClSION

PAGE

IS

Based on the seriousness of Atlass violations in towing Ms. Andrades and Ms. Ramirezs
vehicles other than when allowed by law. Atlass history of six other Class F violations. the
inability of lower penalties assessed for those prior violations to deter future violations, and
that Atlass license has not previously been suspended. the Commission should assess a total
administrative penalty of $8,000 ($4,000 per violation) against Atlas and suspend Atlass
towing company license for two years.

SIGNED December 5, 20164

CASEY A. BELL
ADMINISTRATIVE LAW JUDGE
STATE OFFICE OF ADMINISTRATIVE HEARINGS