(a) Definitions. The following definitions shall apply to this Section.
(1) Booting service. Any person or business that engages in, or owns or operates a business that engages in, immobilizing or "booting" of motor vehicles for a fee.
(2) Trespass towing. The act of towing, removing or storing a motor vehicle that is parked or left on a private parking lot without the private property owner's or lessee's consent, and that is towed, removed or stored without the consent of the motor vehicle operator, i.e., a non-consensual tow.
(3) Vehicle operator. Registered vehicle owner, vehicle operator, or other person legally responsible for a motor vehicle.
(4) Motor vehicle. The definition of "Class C Motor Vehicle" contained in N.C.G.S. 20-4.01 is hereby incorporated by reference.
(5) Private parking lot. A privately-owned area created, designed or used for the parking of motor vehicles. As used herein, a private parking lot does not include driveways, yards of residences, or areas owned or leased by the city or another government entity.
(6) Tow service. Any person or business that engages in, or that owns or operates a business that engages in, towing or removing motor vehicles for a fee.
(7) Trespass vehicle. Any motor vehicle that is parked or left in a private parking lot without permission or authority from the property owner, lessor, or person in legal control of said lot.
(8) Storage facility. A place to which trespass vehicles are transported and stored in connection with a trespass tow.
(b) Authority and scope of section.
(1) This section is enacted in furtherance of the city's authority, pursuant to N.C.G.S. § 160A-174, to define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city.
(2) The provisions of this section shall apply to private property located within: the Central Business District, the Biltmore Historic District, the River Arts District, and the Haywood Road Districts, as set forth in the official zoning map of the city, upon which a private parking lot is located. The provisions of this section shall also apply to private parking lots located within the city that provide parking spaces for a fee.
(3) Notwithstanding any other provision of this section, no notice shall be required for the towing or removal or immobilization of a vehicle if:
a. The vehicle obstructs adequate ingress and egress to businesses or residences;
b. The vehicle has been left on the private property for a period of time greater than 48 hours; or
c. The vehicle is being removed pursuant to the direction of a law enforcement officer or city employee in accordance with the provisions of the Asheville City Code or state law.
(4) This section shall not apply to:
a. The towing of vehicles due to statutory parking violations, such as parking in spaces designated for handicap parking, or parking in fire lanes; or
b. The authority of the police, fire department or other public officer to direct the towing or immobilization of a motor vehicle, as authorized by other provisions of this Code or state law.
(5) This section does not limit other legal remedies that a private property owner may have against a person trespassing on private property, and only applies to and limits the use of trespass towing and booting, as specified herein.
(c) Advance notice of trespass towing and booting required.
(1) It shall be unlawful for any person or entity to authorize, direct, engage in, or contract for trespass towing or the booting or immobilization of a trespass vehicle, by the use of a wheel lock or other method, unless advance notice is provided and posted on the private property from which the towing, removal, or immobilization is made, in accordance with the provisions set forth below:
a. A notice, in the form of a sign structure, not less than 24 inches by 24 inches in size and not larger than six square feet, shall be prominently placed on the private property at each access or curb cut allowing vehicular access to the property, within five feet of the street right-of-way line. If there are no curb or access barriers, signs shall be posted not less than one sign each 50 feet of the frontage to the public street. As an alternative, notice, in the form of a sign structure, not less than 12 inches by 18 inches in size, shall be posted at each parking space from which an unauthorized vehicle could be towed, removed, or immobilized.
b. The notice shall clearly display the following:
1. In not less than one-and-one-half inch high letters on a contrasting background, the words "tow-away" or "tow-away-zone" or "towing enforced."
2. In not less than one inch high letters on a contrasting background, a statement indicating that parking by unauthorized vehicles is prohibited by the use of a phrase such as "private property," "leased parking," "no parking," "parking for customers only," "parking for residents only," or a similar phrase. If parking by unauthorized vehicles is prohibited on a 24-hour per day basis, the sign shall so state, and shall state the days of the week during which said prohibition is in effect. If parking by unauthorized vehicles is not prohibited on a 24-hour continuous basis, the sign shall state the days of the week and hours of the day during which unauthorized parking is prohibited. The sign shall also state the cost for the tow and for recovery of the vehicle, which may be stated as a total cost, and shall include any storage fees.
3. In not less than one-half inch high letters on a contrasting background, the telephone number at which a person available to release the vehicle that has been towed, removed, or immobilized may be contacted at any time. Calls to the telephone number must be answered by a person, and a person with the authority and ability to release the vehicle must respond to the location of the vehicle within 30 minutes of a call.
c. The sign structure displaying the required notices shall be permanently installed with the bottom of the sign not less than one foot above ground level and not more than eight feet above ground level. Pedestrian safety shall be taken into consideration when locating freestanding signs.
d. All signs in the Biltmore Historic District shall comply with Chapter 5, Guideline 24, Book 1 of the Biltmore Village Historic District Design Guidelines.
(d) Trespass towing and immobilization (booting) practices.
(1) Any tow service that has initiated a trespass tow by, at a minimum, positioning a tow truck or wrecker in preparation for securing the trespass vehicle to the tow truck by a hook, chain, cable or similar device, but has not removed the trespass vehicle from the private lot shall upon request of the vehicle operator, release said vehicle upon payment of the release fee.
(2) Any tow service that is engaged in a trespass tow shall, upon request of the vehicle operator, permit the vehicle operator to have access to the trespass vehicle for the purpose of retrieving personal property therefrom.
(3) Any booting service that engages in the booting or immobilization of a vehicle, or any tow service that engages in a trespass tow shall accept at least two nationally recognized credit or debit cards (such as MasterCard or Visa) in payment for any fee established in this ordinance.
(4) The lot or facility to which any trespass vehicle is removed shall be located within a ten-mile radius of the area from which the vehicle was removed, and shall be secured and lighted in such a manner as to keep the vehicle safe from break-ins or damage while in storage. A fenced storage yard with average surface level lighting of two footcandles shall be deemed compliant with this section.
(5) Any booting service that engages in the booting or immobilization of a vehicle, or any tow service that engages in a trespass tow shall, within 30 minutes of immobilizing or removing the vehicle from the private lot report, to the Asheville Police Department by telephone communication the fact that a vehicle was towed or booted and shall provide a description of the vehicle including make, color, and license tag number.
(6) Any booting service that engages in the booting or immobilization of a vehicle, or any tow service that engages in a trespass tow shall have a person on call 24 hours every day who is capable of acknowledging requests to retrieve a towed vehicle or to remove the immobilization device within 15 minutes of receiving such request, and of releasing said vehicle within 45 minutes of receiving the request.
(7) Immobilizing or removing a vehicle that is not a trespass vehicle from a private lot without the consent of the vehicle operator shall be a violation of this section, and shall subject the offender to civil penalties in an amount three times the amount specified in Appendix B.
(8) Interference with any booting service that is carrying out the booting or immobilization of a vehicle, or any tow service that is carrying out a trespass tow, except to request release of, access to, or retrieval of the vehicle, is a violation of this section.
(e) Penalties. The provisions of this section shall be enforced by the city manager or his designee, and shall be subject to civil penalties as prescribed in Appendix B, and may be enforced by equitable remedies as set forth in section 1-5. Violations of this section are not subject to criminal penalties.
(Ord. No. 3057, § 1A, 9-23-03; Ord. No. 3719, § 1, 3-24-09; Ord. No. 3728, § 1, 4-14-09; Ord. No. 4329, § 1(a), 8-26- 14; Ord. No. 4698, § 1, 8-28-18)