A Shot Across the Bow: New Legislation Requires Tow Companies to Provide Information on Virginia Division of Consumer Counsel

A Shot Across the Bow: Ne…

One of the few successes that the trucking industry has enjoyed in recent years in its continuing effort to curtail the piratical practices of towing companies came in the most recent General Assembly session. The legislature passed, and the Governor signed, Senate Bill 705, which creates a new statute, Code section 46.2-1217.1. The statute becomes effective on July 1, 2022, and will provide:

On any invoice charging $10,000 or more for towing and recovery services rendered pursuant to a lawful request for towing by a law-enforcement officer or other uniformed employee of a law-enforcement agency who specifically is authorized to make a request for towing by the chief law-enforcement officer or his designee for towing and recovery of a vehicle with a gross vehicle weight rating of greater than 26,000 pounds, the towing and recovery operator shall include the telephone number and website address for the Division of Consumer Counsel within the Office of the Attorney General.

Any towing and recovery operator in violation of the provisions of this section shall be subject to a civil penalty of $1,000 per violation. Va. Code Ann. § 46.2-1217.1.

The legislation is notable for a couple of reasons. Primarily, for the first time Virginia law provides a monetary civil penalty for a towing company’s failure to provide specific information to a “consumer” (if that is the right term) of towing services imposed upon the consumer by law enforcement officials, whenever the invoice for those services exceeds a certain amount. The enactment of a civil penalty for which a towing company may become liable based upon its invoice is itself noteworthy: for too long, towing companies have operated in Virginia as if the sky was virtually the limit on the amounts they could charge, and the services for which they could demand payment. With little but the common law to point to in opposing predatory towing charges, the trucking industry has had difficulty in holding tow companies to account.

Second, the fact that the information a tow company must now provide to a party invoiced consists of contact information for Virginia’s Division of Consumer Counsel sends a message to the towing industry: Big Brother (or, more accurately, Aunt Virginia) is now watching them, with a particular eye to how the towing industry’s billing practices are affecting those using its services. Trucking companies and others who have been dealing with ever-increasing invoices for heavy towing in recent years are no longer left to their own devices in battling excessive bills and piratical billing practices. From now on, whenever a towing invoice exceeds $10,000, the Commonwealth anticipates its direct involvement in examining such invoices and in determining whether the amounts charged, and the services provided, are lawful and appropriate.

And third, the fact that the statute sets a monetary threshold – $10,000 – for invoices before tow companies are required to provide consumer-protection information is notable, too. The statute could easily have required that all towing invoices include contact information for the Division of Consumer Services, but instead the General Assembly set $10,000 as the amount above which invoices are required to provide this information. In an era when heavy towing invoices are regularly exceeding $10,000 (and usually, by a significant degree), that threshold figure is striking. That fact implies, without expressly stating so, that $10,000 constitutes a presumptive reasonable maximum for a heavy towing invoice. Any amount exceeding $10,000 merits special scrutiny; hence, the requirement to advise consumers of how they can contact the Division of Consumer Services in connection with the charges. And the statute mandates such scrutiny, as a tow company’s failure to include the required information in its invoice implicates a $1,000 penalty.

The statute does not make clear, unfortunately, whether individual consumers may institute proceedings to enforce the penalty, or whether such proceedings are the sole province of the Attorney General’s Office. That is one of the first issues likely to be litigated once section 46.2-1217.1 goes into effect in July of this year. How the towing industry responds to this first mild step toward its regulation remains to be seen. Hopefully, Senate Bill 705 portends closer legislative attention to that industry’s practices in the near future, and a building political will to curtail the industry’s excesses.

If you have questions on this point or others, please do not hesitate to contact Kevin Streit (kstreit@setlifflaw.com) at 804-377-1270, or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.