Order 15572 - Travelers Auto Body & Sales: Complaint

 

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

DIVISION OF PUBLIC UTILITIES AND CARRIERS

100 ORANGE STREET

PROVIDENCE, RHODE ISLAND

The Division of Public Utilities and Carriers, held a hearing on December 10, 1997 to hear testimony relative to a complaint brought by Cecilia Frusher against the certified carrier John M. Voccola, Jr. DBA Travelers Auto Body and Sales. The hearing was held at 100 Orange Street, Providence, Rhode Island.

BEFORE:

Anthony G. Pagano, Hearing Officer

Paul Roberti, Special Assistant Attorney General

APPEARANCES:

For the Division:           Elizabeth Kelleher, Special Assistant Attorney General

For the Respondent:     Stephen Voccola, Esq.

The complaint states that in March of 1996 a car registered to Richard Frusher, was towed to Allens Avenue by Travelers Auto Body. The car, a 1989 Mazda, was retrieved the following day, upon payment of $74.00, but when leaving the location the car broke down around the corner from the location, 299 Allens Avenue. The complainant further states that the car was left there and two days later she went back to the spot, where it was left, and found that it was gone. It was reported to the police as stolen but found that it had been towed back into the lot of Travelers Auto Body. It snowed and the police requested it be towed. The events that followed, as written in the complaint, were stated as follows:

1. The complainant asked to have Mr. Voccola call but he did not respond.

2. The complainant alleges that upon going to the lot of Travelers Auto Body and Sales they found that their car had been broken into and 3 tool chests of Craftsman Tools had been stolen. A report was filed with the Providence Police Department.

3. The complainant requested, through "an obnoxious woman who answers the phone," that Mr. Voccola call the Police Department. The call was not made.

4. The complainant states that the respondent sold the car on July 11, 1996, in violation of the R.I. General Laws.

The complainant is requesting that the Division of Public Utilities and Carriers revoke the towing license of Travelers Auto Body and Sales. In addition, the complainant is seeking restitution for the 1989 Mazda that, she alleges, was sold illegally.

The hearing commenced at 10:02 A.M. and subsequent to addressing any preliminary matters, of which there were none, Cecilia Frusher was called to the stand, by Ms. Kelleher to begin giving testimony. When Ms. Frusher was asked if she was the owner of the 1989 Mazda, with registration No. DV-119, she responded that her husband was the owner. Based on this testimony, Mr. Stephen Voccola objected, moved to dismiss, for lack of standing. Mr. Voccola states that the matter should have been brought under the name of Richard Frusher not Cecilia Frusher. Under direct examination Cecilia Frusher states that her husband is mentally ill and she has power of attorney for him. A copy of the power of attorney was not available, at the hearing, but subsequently was provided to all of the interested parties. Upon review of the document it was determined to be a valid document and allows Cecilia Frusher to act on behalf of her husband.

Basically the complainant stipulates that when the car was towed to Travelers Auto Body and Sales on the second tow, it was on the lot for several months, because Mr. Voccola would not respond to her calls, and that subsequently it was sold. The complainant also states that while the car was on the lot it had been broken into and three tool chests of Craftsman Tools were stolen. Cecilia Frusher, in her testimony, states that on several occasions she called Travelers Auto Body to inquire about the car and was told by an obnoxious woman that she had to talk to Mr. Voccola. She also testified that the woman never told her how she could retrieve the vehicle i.e., the cost of the tow and storage charges. She testifies that she never spoke with Mr. Voccola.

On the issue of stolen tools Cecilia Frusher testifies that sometime in June 1996 she went to Travelers Auto Body to find her vehicle and pick up the tools that Mr. Frusher had realized were in the trunk of the car. When the vehicle was finally found on the lot Cecilia states that it was opened, no forcible entry, and the radio was not missing. However when the trunk was opened the tools were missing from the containers. Cecilia alleges that Mr. Voccola removed them. Mrs. Frusher contacted the police department to report the tools stolen. The complainant has put a value of $2,000 on the missing tools and $5,500 on the stored vehicle. The complainant states that she called the bank and they provided her with the $5500 figure.

Mr. Stephen Voccola, in his questioning of Cecilia Frusher, has tried to establish that the vehicle was not properly registered at the time of the March 5, 1996 tow. Mrs. Frusher claims that the vehicle was registered. A document from the Providence Police, entered as evidence, indicates that the registration was canceled in May, 1996. A tax bill, also entered as evidence by Ms. Kelleher, indicates that the car was taxed for 151 days in 1996 which is consistent with the May, 1996 date.

Mr. John Voccola took the stand and stated his ownership of Travelers Auto Body and Sales. He states that he has been towing for many years, for the Providence and Cranston Police, mostly for the Providence department. He names a Susan McConnell, as his key person to handle towing, who has been with his business for twelve years. She is the person who quotes charges for towing and storage and, of course, Mr. Voccola knows what those charges should be. Ms. McConnell is the person who had dealings with the Frusher family.

The procedure for retrieving a vehicle, once towed, is to quote the charges (towing and storage), needed to have the vehicle released.

Mr. Voccola states that the tow (second) was a snow tow. The car was abandoned on Allens Avenue, for two days, and the Providence Police advised that the car be towed so the streets could be plowed. The charges for a snow tow were $60.00 and the storage rate was a dollar an hour for the first day and $22.00 a day thereafter.

The question was asked of Mr. John Voccola if he had ever seen the tools that were alleged to have been stolen by him. He answered that normal procedure is to list everything that is in view of the tow operator, take it out, tag it and mark the slips. He states that they never saw anything and he knows nothing about tools. The questioning of Mr. John Voccola was basically geared towards the procedural acts, subsequent to a tow, and conversations between Ms. McConnell and Ms. Frusher. Was the Providence Police Department sent the proper forms? Was Ms. Frusher advised of the charges? Did Ms. Frusher ever obtain a release? Mr. Voccola answered these questions as yes to proper forms, yes to advised of charges, and no to a release.

Mr. Voccola states that Ms. Frusher never went to Travelers Auto Body and Sales, with payment, to retrieve the vehicle. He is asked if he has appraised cars in the past. He answers in the affirmative. He states that when he tows vehicles he has a possession lien for towing and storage. This information is given to establish the reason for abandoned cars never being retrieved. He has to know the value of the car and his right to dispose of the vehicle. What he is telling the Division is that when the towing and storage costs exceed the value of the car he disposes of it by giving it to Allens Avenue Auto Salvage simply to clean up the lot. The Frusher vehicle was disposed of on July 31, 1996. The towing and storage charges were approximately $3,300 at the time of the disposal. Mr. Voccola appraises the vehicle to have no value otherwise he would have not junked the car but would have obtained the title and sold it. The vehicle was junked, with no compensation, simply to open a space on the lot. Mr. Voccola stated that he disposes of probably 150 cars, per year, which is approximately ten percent of the vehicles towed to his lot.

Mr. Stephen Voccola, in closing, has Ms. Frusher as being an irresponsible person. She made no attempt to pay the towing and storage charges. She claims to have purchased $2,000 worth of tools for her husband. She knew what the procedure was to retrieve the car, she did not follow such procedure. Mr. Stephen Voccola wants the court to know of John Voccola's disciplinary history and also his operating procedure. Stephen Voccola again speaks of the registration being canceled in May of 1996.

Ms. Kelleher, in closing, alludes to the issue of whether or not Travelers Auto Body followed the statutes. She cites R.I.G.L Chapter 12.1 of the statute on how to get a possession lien. Under 12.1-6 the tower does not have a lien unless the 14 day notice requirement is followed. Also notice must be given (Subsection 8) prior to enforcement of possession lien. In addition to the aforementioned the tower must give notice before he sells a vehicle. It is Ms. Kelleher's legal opinion that Mr. Voccola did not follow the law.

Upon reviewing all the evidence provided to this hearing officer, regarding the complaint of Ms. Cecilia Frusher, the findings are as follows:

1. On the issue of the car being towed illegally, the second time, I find the claim to be unfounded. The testimony clearly indicates that the car was towed at the request of the police department because it had snowed and the streets had to be plowed.

2. The complainant testified that Mr. Voccola never responded to her calls therefore she did not know how to retrieve her car. It may be true that she never heard from Mr. Voccola but she was informed, by an employee of Travelers Auto Body and Sales on what was required to retrieve the car. The procedure was known to the complainant as she had been through the process just days before. The complainant spent needless time making telephone calls to the police department rather than making the necessary arrangements to retrieve the vehicle. She was advised by the employee, whom she described as an obnoxious woman, what the charges were and she neglected to act on such advice. The fact that Mr. Voccola did not personally speak with her should not have prevented the retrieval of the car by Ms. Frusher. Negligence on the part of Ms. Frusher leads me to believe that she had no intention of retrieving her husband's car.

3. The complainant alleges that some time in June, months after the car had been towed, she went to the lot of Travelers Auto Body and Sales and found that her car had been broken into and her husband's Craftsman tools had been stolen. She testified that there was no forcible entry but the car was a mess, the radio was intact and the tools were missing. She specifically states, that they went to the lot, in June, not to pick up her car but to get her husband's tools.

There is no clear evidence that there were tools in the trunk of the car. The complainant testifies that there was no forcible entry. The keys were in the possession of the owner of the car, therefore, the trunk could be opened only with their key. Without keys, the fact that there was no forcible entry, the absence of evidence that there were actually tools in the car, leads me to find the allegation to be unfound.

The issue of the car being "sold" illegally is more complex than the aforementioned allegation. The complainant testified that the car was stolen and sold. The respondent testified that the vehicle was not sold but disposed of with Allens Avenue Auto Salvage. The automobile was disposed of on July 31, 1996, approximately five months from the date that the car was brought to the lot of Travelers Auto Body and Sales. The testimony of Mr. Voccola explains the procedure when a vehicle is not retrieved. The explanation is that when a car is not retrieved and the storage charges are accumulating at the daily rate of $22.00, Mr. Voccola, or his representative, will attempt to make a deal with the owner of the car. In this case the storage charges were accumulating and a deal was offered to Ms. Frusher, by Sue McConnell, that the car could be retrieved, for less than the storage charges, if picked up by May 15, 1996. It is obvious that this was not accepted by the Frushers and the car ultimately was disposed, or junked, to the salvage company. Now the question is, did Mr. Voccola have the legal right to dispose of the vehicle. To answer this question we have to visit the R.I.G.L. Section 39-12.1-1-2, through 39-12.1-10. Chapter 12.1 covers the Towing Storage Act. Travelers Auto Body and Sales is a certified tower. The vehicle in question was towed because it snowed and the streets had to be plowed. The vehicle was towed on March 8, 1996 more than 48 hours after it was left on the side of Allens Avenue. We can't define the vehicle as "abandoned" because at the time it was not eight years old and as best can be determined, it was operable. The testimony of Ms. Frusher was that her husband was using the wrong key when attempting to start the car. It has never been determined whether the car was started. As mentioned, the car was towed because of the snow and this would be covered under 12.1 giving police powers to remove vehicles if in their opinion it created a hazardous condition to the motoring public. The inability by the Department of Public Works to plow the streets could very well create hazardous conditions. On that point, we, find the tow legal.

The last registered owner is liable for all costs incurred (towing and storage) to recover the vehicle. The owner leads us to the point of John Voccola disposing of the vehicle on July 31, 1996. The R.I.G.L. 39-12.1-2 defines "Possessory lien" as giving the certified tower the right to retain possession of a vehicle against all claims of the owner until all charges are paid for recovery, towing and storage. The charges were never paid therefore, the lien existed right to the date of disposal. Travelers Auto Body and Sales retained possession of the vehicle and therefore the possessory lien was in effect at the time of the disposal (R.I.G.L. 39-12-1.6). The option exercised by Mr. Voccola in disposing of the vehicle is covered under 39-12.1-7 which states that a tower in possession of any vehicle subject to a possessory lien for a period in excess of 30 days and not compensated in accordance with the tariff is authorized to give notice and proceed to foreclosure.

The tower, in his appraisal, did not see any value in the car therefore he did not wish to incur any costs to obtain the title and sell the vehicle. A sale did not occur. No monies were exchanged for the vehicle therefore we have to consider it as "disposed of". Had the car been of value, I believe the Frushers should have made stronger efforts to retrieve the vehicle. Five months expired and the charges were never paid. I also believe that had the car been of value, Mr. Voccola would have incurred costs to obtain the title and sell the car. That would seem to be good common sense. The car was disposed of properly. The car was on the lot for 145 days (March 8, 1996 to July 31, 1996) and at $22.00 per day the storage charges alone were $3190.00. I find the towing and storage charges exceeded the value of the vehicle.

In reviewing R.I. G.L. 39-12.1-4, the statute that encompasses notice and processing of abandoned and unclaimed motor vehicles, this hearing officer finds that Traveler's Auto Body and Sales, and Mr. John Voccola, were remiss in not notifying the last registered owner of the car. I fully understand that the intent of this section (notice) is to inform the owners as to the whereabouts of the vehicle subsequent to a tow. I fully understand that the Frushers knew where their automobile was stored and that a notice was not necessary. However, the statute specifically states that a certificated tower shall notify within 14 days, by registered mail, the last known registered owner. It does not make any exception for emergency tows (snow), as is the case before the Division. The notice must inform the last registered owner that the car has been towed to the location where it is being stored. The notice must give name, address, and telephone number of the certificated tower. The notice must inform the owner that recovery, towing, and storage charges are accuring. The notice must also inform the owner that the tower claims a possessory lien for all recovery, towing and storage charges.

The notice should have been sent. The statute does not mention in any way, form, or fashion that the police department will notify the owner of the aforementioned. This court finds that Mr. John Voccola was in violation of R.I.G.L. 39-12.1-4 "Notice and processing of abandoned and unclaimed motor vehicles by certificated tower."

OVERALL FINDINGS

The vehicle was towed legally, due to the snowfall, to the lot of the certificated tower. The owners know where the vehicle was stored. The car was towed on March 8, 1996 and was disposed of on July 31, 1996, 145 days after it was towed. The owners did not, at any time, attempt to pay the charges and retrieve the vehicle. The owners went to the lot in June of 1996 to look for their tools, not to retrieve the vehicle. The allegation that the tools were stolen is not valid since there is no concrete evidence that tools ever existed. The certificated tower disposed of the car in July of 1996 because the storage charges had exceeded the value of the car. A sale did not take place, no monies exchanged, therefore the disposal was legal. The certificated tower had a possessory lien until all charges were paid. They were never paid.

It is apparent that the car had no value otherwise the owner would have made stringent efforts to retrieve the vehicle. By the same token the certificated tower would have incurred costs to obtain the title and sell the car. The storage charges exceeded the value of the car and ultimately the certificated tower disposed of the vehicle. The certificated tower did not send a notice as is required by R.I.G.L. 39-12.1-4 and therefore, was in violation of this Section. Mr. Voccola has had no previous disciplinary action taken against him. Based on his record of good standing and the facts of this case we do not recommend any sanctions be imposed on Travelers Auto Body and Sales.

Accordingly, it is Ordered: (15572)

1. Mr. Voccola is negligent with his duties to comply with the R.I. statutes, however, as stated in the findings, no sanctions are recommended..

2. Mr. Voccola comply with the notification laws, specifically R.I. G.L. 39-12.1-4, in future dealings of this nature.

DATED AND EFFECTIVE AT PROVIDENCE, RHODE ISLAND THIS 27th DAY OF MARCH, 1998.