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Oregon Bulletin

October 1, 2011

 

Department of Oregon State Police
Chapter 257

Rule Caption: Suspension or revocation of the right to apply or reapply for a letter of appointment

Adm. Order No.: OSP 4-2011

Filed with Sec. of State: 9-2-2011

Certified to be Effective: 9-7-11

Notice Publication Date: 8-1-2011

Rules Amended: 257-050-0050, 257-050-0155, 257-050-0157

Subject: Deletes the undefined term “owner” and inserts the word “principal” in its place. Defines “principal” to include an owner. Gives the department continuing jurisdiction over pending suspension or revocation proceedings by authorizing it to revoke or suspend the right to apply for a letter of appointment. Gives the department continuing jurisdiction over pending suspension or revocation proceedings by authorizing it to revoke or suspend the right to reapply for a letter of appointment. The department’s current administrative rules only allow it to suspend or revoke an existing letter of appointment of either a “qualified tow business” or any owner or employee of a “qualified tow business” that commits a violation of law chargeable as a violation or crime. “Owner” is not defined. Additionally, the department’s current administrative rules only allows it to suspend or revoke a tow vehicle, tow equipment, or a “qualified tow business” that already has a letter of appointment from being on the department’s non-preference tow program for a violation of law other than a law chargeable as a violation or a crime. The department’s current administrative rules do not allow it suspend or revoke either the right of a tow business or its principals to apply for a letter of appointment, or the right of a “qualified tow business” or its principals to reapply for a letter of appointment once that business’ current letter of appointment expires. Under Oregon law, an administrative agency loses jurisdiction over a revocation proceeding once a license expires unless the agency’s statutory authority provides otherwise. On July 14, 2010, the department temporarily adopted these rules because it had administrative proceedings pending that involved the revocation or suspension of qualified tow businesses from its non-preference tow program. These rules gave the department continuing jurisdiction in those cases where the letter of appointment for a tow business, tow truck, “qualified tow business,” or principal or employee thereof, will expire prior to the department completing its administrative suspension or revocation action and issuing a final order. Due to inadvertence by the department, the department’s temporary rules expired on January 10, 2011 without permanent rules being adopted. These administrative rules are intended to the temporary rule changes permanent. The rule changes contained in these permanent rules are made retroactive to January 1, 2009.

Rules Coordinator: Cort Dokken—(503) 934-0228

257-050-0050

Definitions

(1) “Abandoned Auto” or “Abandoned Vehicle” – A vehicle, as defined in ORS 819.110, that has been parked or left standing upon any public way for a period in excess of 24 hours without authorization by statute or local ordinance.

(2) “Area Commander” or “Station Commander” – The local commanding officer of an area established by the Oregon State Police.

(3) “Business Records” – Those records maintained by a qualified tow business that relate to the non-preference tows and which include, but are not limited to, tow bills, letters of appointment, and inspection sheets.

(4) “Certified” or “Certification” – The successful completion by an employee of a tow business of a written test administered by a nationally recognized towing affiliated body/organization relating to the level of towing the employee operates.

(5) “Convicted” – An adjudication of guilt upon a verdict or finding entered in a criminal proceeding in a court of competent jurisdiction.

(6) “Denial” – Action taken by the Department in refusing to issue a letter of appointment to a tow business.

(7) “Department” – The Department of State Police, also referred to as “Oregon State Police,” and its employees.

(8) “Employee” – Any person in the service of a tow business under contract of hire, express or implied, oral or written, where the business has the power or right to control and direct the employee in the material details of how the work for the business is to be performed.

(9) “Fencing” – Permanent fencing meeting zoning requirements, with a minimum height of six (6) feet.

(10) “Hazardous Vehicle” – A vehicle, as defined in ORS 819.120, that is disabled, abandoned, parked, or left standing unattended on a road or highway right of way and that is in such a location as to constitute a hazard or obstruction to motor vehicle traffic using the road or highway given that term in OAR 734-020-0147.

(11) “Hearings Officer” – A person appointed by an agency or entity contracted by the Department of State Police to conduct contested case hearings.

(12) “Highway” – Every public way, road, street, thoroughfare and place including bridges, viaducts and other structures within the boundaries of the state open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right (ORS 801.305).

(13) “Inspector” – A commissioned officer or other appointed representative of the Oregon State Police who has been designated by the Department to examine tow trucks and qualified tow businesses.

(14) “Letter of Appointment” – A letter issued by the Department that authorizes a tow business to tow abandoned or disabled vehicles on a non-preference rotational basis for the Oregon State Police.

(15) “Non-Preference tow rotational List’ or “Non-Preference List” – The list of qualified tow businesses maintained at Oregon State Police Headquarters that is used to dispatch the tow trucks on an equitable basis when no choice or preference to a tow business is stated by the vehicle owner, driver, or other person responsible for the vehicle.

(16) “On Road Time” – The time it takes a qualified tow business to have a tow truck started and on the road from the time the dispatcher was called by the Department.

(17) “Patrol Services Division” – The administrative body of the Oregon State Police that is located at General Headquarters in Salem, Oregon.

(18) “Place of Business” – A separate building or physical structure that a qualified tow business occupies, either continuously or at regular times, where the qualified tow business’ business books and records are kept and the business of towing vehicles is transacted in each assigned tow zone. Multiple or different qualified tow businesses may operate on a single piece of real property, provided that each qualified tow business maintains individual and separate records, storage facilities, and letters of appointment in order to be placed on the Department’s non-preference tow rotational list.

(19) “Principal” – an owner, partner, corporate officer or other person who controls or manages the business organization or employees or agents of the business organization.

(20) “Qualified Tow Business” is a tow business with a current letter of appointment issued by the Department.

(21) “Region Commander” or “District Commander” – The commanding officer of the region as established by the Oregon State Police.

(22) “Recovery Vehicle” – A motor vehicle that is:

(a) A commercially available truck chassis equipped with a commercially manufactured tow body or bed, that is rated and issued a serial number by the manufacturer;

(b) Designed and equipped for, and used in, the towing and/or recovery of vehicles;

(c) Capable of towing a vehicle by means of a tow bar, sling or wheel lift; and

(d) Capable of recovering a vehicle by means of a hoist, winch and towline.

(23) “Response Time” – The reasonable driving time it takes a tow truck to respond to the dispatched location once the tow truck is on the road.

(24) “Revocation” and “revoked” – The termination of a letter of appointment or right to apply for a letter of appointment, and the removal from the Oregon State Police’s non-preference towing program for a period of not less than 10 years, which becomes effective from the date of the Notice of Revocation from the Oregon State Police.

(25) “Right to apply” – The right of a tow business or its principal(s) to apply for, and the right of a qualified tow business or its principal(s) to re-apply for, a letter of appointment.

(26) “Suspension” and “suspend” – The temporary withdrawal of a letter of appointment or right to apply for a letter of appointment, and the removal from the Oregon State Police non-preference towing program for a period of not more than 10 years.

(27) “Tow business” – Any person, enterprise, corporation or partnership that engages in the impounding, transporting, recovery or storage of towed or abandoned vehicles or in the disposal of abandoned vehicles.

(28) “Tow Vehicle” – A motor vehicle that is:

(a) Altered or designed and equipped for, and used in, the business of towing vehicles; and

(b) Used to tow vehicles by means of a crane hoist, tow bar, towline or dolly, or otherwise used to render assistance to other vehicles (ORS 801.530).

(29) “Tow Zone” – The geographical area designated by the area commander for the removal of vehicles.

(30) “Vehicle Storage Area” – The approved yard or enclosed building where a qualified tow business keeps or stores towed vehicles.

Stat. Auth.: ORS 181.440

Stats. Implemented: ORS 181.440

Hist.: OSP 1-1989, f. & cert. ef. 1-3-89; OSP 3-1989, f. 10-16-89, cert. ef. 10-15-89; OSP 5-1992, f. & cert. ef. 12-16-92; OSP 2-1995, f. & cert. ef. 10-20-95; OSP 1-1999(Temp), f. & cert. ef. 9-10-99 thru 3-7-00; OSP 1-2000, f. & cert. ef. 3-15-00; OSP 2-2000(Temp), f. & cert. ef. 7-14-00 thru 1-9-01; Administrative correction 6-12-01; OSP 1-2006, f. 3-29-06, cert. ef. 3-31-06; OSP 1-2009(Temp), f. & cert. ef. 8-6-09 thru 1-31-10; OSP 2-2009, f. 10-8-09 cert. ef. 1-1-10; OSP 3-2009(Temp), f. 12-18-09, cert. ef. 1-1-10 thru 6-29-10; OSP 3-2010, f. 6-1-10, cert. ef. 6-30-10; OSP 5-2010(Temp), f. 7-13-10, cert. ef. 7-14-10 thru 1-10-11; Administrative correction 1-25-11; OSP 4-2011, f. 9-2-11, cert. ef. 9-7-11

257-050-0155

Suspension and Revocation (for Violation of a Law Chargeable as a Violation or Crime)

(1) The following suspension or revocation periods apply when a tow business, qualified tow business, or any principal or employee of a tow business or qualified tow business, has been convicted of a violation of law charged as a Violation or Crime:

(a) “First Suspension” – any first violation shall be for a period of not less than 60 days.

(b) “Second Suspension” – any second violation that is committed within a one (1) year period from the date of any final order under this rule shall be for a period of not less than one (1) year.

(c) “Third Suspension” – any third violation that is committed within a three (3) year period of the date of any final order under this rule shall be a revocation.

(2) The following constitute grounds for suspension:

(a) Commission of a violation or traffic crime of Oregon Law during the course and operation of the tow business’ or qualified tow business’ tow business.

(b) A principal or employee of a tow business or qualified tow business that commits any violation of Oregon Law while in the performance of his or her duties of employment.

(3) The following constitutes grounds for revocation:

(a) Commission of a crime, other than a traffic crime and that is chargeable as a misdemeanor or felony, by a tow business or qualified tow business during the course and operation of the tow business’ or qualified tow business’ tow business.

(b) A principal or employee of a tow business or qualified tow business that commits a crime chargeable as a misdemeanor or felony while in the performance of his or her duties of employment.

Stat. Auth.: ORS 181.440

Stats. Implemented: ORS 181.440

Hist.: OSP 1-2006, f. 3-29-06, cert. ef. 3-31-06; OSP 1-2009(Temp), f. & cert. ef. 8-6-09 thru 1-31-10; OSP 2-2009, f. 10-8-09 cert. ef. 1-1-10; OSP 3-2009(Temp), f. 12-18-09, cert. ef. 1-1-10 thru 6-29-10; OSP 3-2010, f. 6-1-10, cert. ef. 6-30-10; OSP 5-2010(Temp), f. 7-13-10, cert. ef. 7-14-10 thru 1-10-11; Administrative correction 1-25-11; OSP 4-2011, f. 9-2-11, cert. ef. 9-7-11

257-050-0157

Suspension or Revocation for Violation (other than a Law Chargeable as a Violation or Crime)

(1) Suspensions or revocations, unless otherwise outlined or defined in these rules, shall fall under one of the following four levels:

(a) Immediate suspension – A suspension that takes place immediately, upon written notice from the Oregon State Police, as evidenced by the date of the postmark, removing a tow vehicle, tow equipment, tow business, or a qualified tow business from the non-preference rotational tow list.

(b) Level one suspension – any first violation of these Administrative Rules unless otherwise defined in the rule and shall be for a period of not less than sixty (60) days, and not more than one (1) year in length.

(c) Level two suspension – any second violation of these Administrative Rules that is committed within a one (1) year period from the date of any final order and shall be for a period of not less than one (1) year and not more than two (2) years in length.

(d) Revocation – any third violation of these Administrative Rules that is committed within a three (3) year period of the date of any final order and shall result in a revocation.

(2) A suspension shall be in effect until the violation is corrected, or the Department orders reinstatement of a letter of appointment or right to apply for a letter of appointment.

Stat. Auth.: ORS 181.440

Stats. Implemented: ORS 181.440

Hist.: OSP 5-2005, f. & cert. ef. 11-18-05; OSP 1-2006, f. 3-29-06, cert. ef. 3-31-06; OSP 1-2009(Temp), f. & cert. ef. 8-6-09 thru 1-31-10; OSP 2-2009, f. 10-8-09 cert. ef. 1-1-10; OSP 3-2009(Temp), f. 12-18-09, cert. ef. 1-1-10 thru 6-29-10; OSP 3-2010, f. 6-1-10, cert. ef. 6-30-10; OSP 5-2010(Temp), f. 7-13-10, cert. ef. 7-14-10 thru 1-10-11; Administrative correction 1-25-11; OSP 4-2011, f. 9-2-11, cert. ef. 9-7-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
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