Oregon Bulletin
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.
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