How can Arkansas verify that an out-of-state towing company qualifies for an Arkansas permit?

Plain-English summary

State Representative Mary Slinkard asked about Arkansas's reciprocity requirements for out-of-state towing operators. A 2013 amendment (Act 1002) added A.C.A. § 27-50-1203(k), which says the Arkansas Towing and Recovery Board may only issue a license or tow vehicle safety permit to an out-of-state operator when the owner shows that operation in Arkansas would comply with A.C.A. § 27-35-112. That statute prohibits an out-of-state-licensed wrecker from towing in Arkansas unless the wrecker's home state permits Arkansas-licensed tow vehicles to tow in that state.

The AG worked through Slinkard's four questions:

1. What evidence should the Board require? The statute doesn't say. The Board has authority under § 27-35-112(c) to adopt rules, but had not done so as of October 2014. Without a rule, the AG suggested requiring evidence of the other state's laws and regulations showing that Arkansas-licensed vehicles may tow there. He encouraged the Board to use its rulemaking authority through the Arkansas Administrative Procedure Act (A.C.A. § 25-15-201 et seq.) to standardize the process.

2. Must the Board rescind an erroneously-issued license? No. There's no statutory rescission requirement, and the AG was skeptical that the Board has authority to rescind absent a governing rule that addresses the scenario.

3. Do § 27-35-112 criminal penalties apply to a licensed out-of-state operator? No. The statute's penalties target towing without complying with the statute. Once a license is issued, the assumption is that compliance was found. A.C.A. § 27-50-1213(d) expressly says out-of-state-licensed operators must "comply with the provisions of this subchapter and § 27-35-112" when towing in Arkansas, which the AG read as confirming that licensed operators aren't subject to the § 27-35-112 misdemeanor penalty.

4. Do the penalties apply to the Board? No. The criminal penalties of § 27-35-112 apply to the owner or operator of the towing vehicle, not to the Board.

The AG also flagged that the Board has civil-penalty authority under § 27-50-1204(d) (suspension or revocation of towing licenses or permits) that could be used to enforce § 27-35-112 going forward. He suggested the Board might want to adopt a rule to address scenarios where a license was issued in error.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas towing regulation lives at the intersection of two statutory subchapters:

• A.C.A. § 27-35-112 (Repl. 2008) is the reciprocity provision. It bars wreckers licensed in another state from towing in Arkansas unless that state permits Arkansas-licensed wreckers to tow there. Violations are misdemeanors with fines (subsection (b)). The Towing Board has rulemaking authority for enforcement (subsection (c)).

• A.C.A. § 27-50-1201 et seq. (Repl. 2010 and Supp. 2013) governs the Arkansas Towing and Recovery Board generally. Section 27-50-1203 lists powers and duties; subsection (k) (added in 2013) is the licensing tie-in to reciprocity. Section 27-50-1204(d) gives the Board civil-penalty authority. Section 27-50-1213(d) requires out-of-state operators to comply with both subchapters.

The structure is layered. To get an Arkansas license, an out-of-state operator has to show reciprocity. Once licensed, they must comply with both the substantive subchapter and § 27-35-112 (which presumably means following the rules that establish their continued reciprocity-compliance, not facing criminal liability for the initial issuance).

The opinion is most valuable as a roadmap for what the Board should have done by rule. The AG essentially told the Board: you have rulemaking authority, you should use it, and here's the kind of evidence you might require.

Common questions

What does "reciprocal" mean in this context?

A state is reciprocal if its laws and regulations permit Arkansas-licensed tow vehicles to operate there. The test isn't formal "reciprocity treaty" between states; it's substantive comity. State A's laws either allow Arkansas tows or they don't.

How does a towing company prove reciprocity?

The AG suggested submitting the other state's relevant laws and regulations. In practice, that probably means copies of statutes plus any agency regulations, possibly with affidavits from local counsel about how the rules are applied. A formal Board rule could specify the exact documentation.

What happens to operators who tow in Arkansas without a license at all?

The criminal penalties in § 27-35-112(b) apply. Towing in Arkansas without complying with the reciprocity rule is a misdemeanor. The penalties don't apply to a licensed operator because the license presumes compliance; they apply to unlicensed operators who try to tow anyway.

Could a private party sue an erroneously-licensed operator?

The opinion doesn't address private enforcement. Generally, Arkansas tort law might give a private party a claim against a tow company that wrongly towed their vehicle, but the AG only addressed the criminal penalties.

What's the practical effect of the AG's "no rescission" view?

It means a license, once issued, has staying power. An applicant who got over the reciprocity bar (legitimately or otherwise) doesn't have to fear retroactive license cancellation under the existing statutory framework. The Board would have to adopt a rule giving itself rescission authority, or seek a statutory amendment, to claw back a wrongly-issued license.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-087
September 29, 2014

The Honorable Mary L. Slinkard
State Representative
10422 Virden Lane
Gravette, Arkansas 72736-9631

Dear Representative Slinkard:

You have requested my opinion on the following questions concerning the issuance of tow vehicle licenses and permits for towing vehicles licensed in other States:

1. What evidence do you suggest the Arkansas Towing & Recovery Board require through its application process to show that the applicant is in compliance with § 27-35-112?

2. If the Arkansas Towing & Recovery Board has erroneously issued a license to an out-of-state applicant domiciled in a non-reciprocal State:
   (A) Is the Board required to rescind the license?
   (B) Do the penalties prescribed in § 27-35-112 apply to the out of state towing company?
   (C) Do the penalties prescribed by § 27-35-112 apply to the Arkansas Towing & Recovery Board?

RESPONSE

In response to your first question, the only evidence I can suggest would be evidence of the other state's laws and regulations governing the towing of vehicles in that state. For the reasons explained below, the answer to each subpart of your second question is "no," in my opinion.

Question 1 - What evidence do you suggest the Arkansas Towing & Recovery Board require through its application process to show that the applicant is in compliance with § 27-35-112?

Some explanation of the relevant statutes will be helpful before addressing this question. As you have noted, Act 1002 of 2013 amended A.C.A. § 27-50-1203, regarding the powers and duties of the Arkansas Towing and Recovery Board (hereinafter "the Board"), to add the following subsection concerning licenses and permits for out-of-state towing operators:

The board shall issue a towing business license or issue a tow vehicle safety permit for a tow vehicle licensed in another state to tow any vehicle in this state only when the tow vehicle owner establishes to the board's satisfaction that the operation of the tow vehicle in this state is in compliance with § 27-35-112.

The referenced statute, A.C.A. § 27-35-112, governs the towing of vehicles by out-of-state-licensed wreckers and towing vehicles. It provides that such wreckers and vehicles shall not tow in Arkansas unless the state in which the tow vehicle is licensed permits Arkansas-licensed vehicles to tow in that state:

No vehicle licensed in another state for use as a wrecker or similar towing vehicle shall be used to tow any automobile or truck in this state unless the state in which the wrecker or other towing vehicle is licensed permits Arkansas-licensed wreckers and towing vehicles to tow automobiles and trucks in that state.

In sum, the 2013 enactment (A.C.A. § 27-50-1203(k)) requires that as a condition of being issued a permit to tow in Arkansas, the owner of an out-of-state-licensed tow vehicle must show that the vehicle's operation in Arkansas "is in compliance with § 27-35-112," meaning that the other state permits Arkansas-licensed vehicles to tow in that state. Your question focuses on this required showing.

Subsection 27-50-1203(k) is silent on your question. The subsection simply establishes the so-called "reciprocity" requirement by referencing A.C.A. § 27-35-112. Section 27-35-112 is administered by the Board; and as noted above, the Board may promulgate rules and regulations for its enforcement. Accordingly, although it appears the Board has not done so to date, I believe the Board might determine by rule or regulation how a tow vehicle owner is to evidence compliance with § 27-35-112. In the absence of any such regulation, I can only suggest that the Board require evidence of the other state's laws and regulations showing that Arkansas-licensed vehicles may tow in that state.

Question 2(A) - If the Arkansas Towing & Recovery Board has erroneously issued a license to an out-of-state applicant domiciled in a non-reciprocal state, is the Board required to rescind the license?

No, there is no requirement to this effect. Nor, in my opinion, does the Board have authority to initiate the license's rescission, absent a governing rule or regulation that addresses this scenario. To my knowledge, the Board has issued no rules or regulations with respect to licenses issued under A.C.A. § 27-50-1203(k).

Subsection 27-50-1203(k) plainly ties out-of-state licensing and permitting to compliance with § 27-35-112. I therefore find it relevant to note that the Board may promulgate rules and regulations for the enforcement of § 27-35-112 through "civil penalties," which can include "suspension or revocation of any towing license or permit . . . ." See A.C.A. §§ 27-35-112(c) (Repl. 2008) and 27-50-1204(d) (Supp. 2013). The Board may find it necessary to exercise its rulemaking authority under § 27-35-112 to ensure that compliance will be had with § 27-35-112 by out-of-state license or permit applicants. This might include some rule to address the scenario in your question, involving a license or permit that should not have been issued because of non-compliance with § 27-35-112. Of course, any such rule or regulation would have to be adopted in accordance with the Arkansas Administrative Procedure Act, A.C.A. § 25-15-201 et seq. See A.C.A. § 27-50-1203(e)(2) (Supp. 2013).

Question 2(B) - If the Arkansas Towing & Recovery Board has erroneously issued a license to an out-of-state applicant domiciled in a non-reciprocal state, do the penalties prescribed in § 27-35-112 apply to the out of state towing company?

No. As explained above, subsection 27-50-1203(k) requires a showing of compliance with § 27-35-112 in connection with seeking a license or permit. Once a license is obtained, the assumption is that the Board has properly determined that such a showing was made and that compliance is had with § 27-35-112. Additionally, it is clear from another provision in title 27, chapter 50, subchapter 12, that the penalties under § 27-35-112 apply to towing companies "licensed in a state other than Arkansas." Section 27-50-1213 provides in relevant part: "When towing a vehicle in this state, a towing or wrecker service licensed in a state other than Arkansas must comply with the provisions of this subchapter and § 27-35-112." Accordingly, it must be concluded that there is no basis for imposing the criminal penalties under 27-35-112 upon a company that has received an Arkansas license.

Question 2(C) - If the Arkansas Towing & Recovery Board has erroneously issued a license to an out-of-state applicant domiciled in a non-reciprocal state, do the penalties prescribed by § 27-35-112 apply to the Arkansas Towing & Recovery Board?

No. It is clear from the face of § 27-35-112 that the criminal penalties thereunder apply to the owner or operator of the towing vehicle. There is no suggestion that the penalties apply to the Board.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh