Can a Virginia city or county's police department set its own rules for picking which tow companies handle accident scenes, without going through the local advisory-board and ordinance process?

Plain-English summary

When the Harrisonburg Police Department wrote up operational guidelines for which tow truck companies it would call to clear accident scenes, including a rotating list of qualified companies and rules about response times and equipment, a question arose: was this the kind of "regulation" of the towing industry that, under Va. Code § 46.2-1217, requires the local governing body to first appoint an advisory board and pass an ordinance? Or was it just internal police-operations management that the police chief can set on his own authority?

Attorney General Bob McDonnell drew a line in the middle. Police departments have an inherent public-safety mission, expressly recognized in §§ 46.2-1209 and 46.2-1212.1, to keep highways clear and safe. They can pick which towing companies they will call to fulfill that mission, and they can use objective criteria (twenty-four-hour availability, safe equipment for accident-scene work, communication capability) as gates. But the moment the criteria become regulatory in nature, dictating that a company must own two specific types of wreckers, or imposing requirements that look more like industry licensing than scene-safety, the police department has crossed into territory that the General Assembly reserved for local ordinance.

The opinion also reminds the questioner of the federal layer: 49 U.S.C. § 14501 preempts state and local laws regulating motor-carrier prices, routes, and services, but with a specific carve-out (§ 14501(c)(2)(C)) for non-consensual tow pricing and a separate safety carve-out. Virginia's police-towing regime fits within those exceptions.

Currency note

This opinion was issued in 2009. 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. The Board for Towing and Recovery Operators promulgated regulations under § 46.2-2826 that took effect July 1, 2010, which the opinion expressly anticipated would change the landscape.

Background and statutory framework

Police-requested towing in Virginia is governed by a layered system. Section 46.2-1217 gives local governing bodies (county boards, city councils, town councils) the power to regulate towing services by ordinance, after appointing an advisory board that includes law-enforcement, industry, and public members. Section 46.2-2826 (added in 2008) directs the new state Board for Towing and Recovery Operators to set public-safety towing regulations, with the proviso in § 46.2-2809 that no Board regulation on public-safety towing could take effect before July 1, 2010.

Beneath both of those, the everyday work of police officers responding to accidents lives in §§ 46.2-1209 (immobilized or unattended vehicles) and 46.2-1212.1 (vehicle and cargo removal after accidents). Those statutes give law enforcement direct authority to remove vehicles, with immunity for good-faith actions and a cost-recovery mechanism against owners and carriers. Federal law (49 U.S.C. § 14501) generally preempts state and local laws governing motor-carrier prices, routes, and services, but carves out (1) safety regulation, (2) state and local pricing rules for non-consensual tow trucks, and (3) related authority.

At the time of the opinion, neither the General Assembly's planned state regulations under § 46.2-2826 nor any local Harrisonburg ordinance under § 46.2-1217 was in effect. So the practical question for police departments was: what can they do unilaterally to manage their tow-call list?

What the AG concluded, point by point

Procedures tied to highway-safety duties are fine without local ordinance. A rotating call list of qualified tow companies, with availability and basic accident-scene safety competency as criteria, fits squarely within the public-safety duties of § 46.2-1209 and § 46.2-1212.1.

Procedures that look regulatory require the local-ordinance path. Specifying that a qualified company must operate a "rollback" and a "crane recovery wrecker," for example, may or may not be justifiable on safety grounds; it depends on accident-scene needs in that jurisdiction. To the extent the requirement is essentially industry regulation, the local governing body has to follow § 46.2-1217.

The line between public-safety procedure and regulation is a factual question. Per longstanding AG practice, the AG declines to make factual determinations. The opinion simply gives the legal framework and identifies the line that the locality must apply to its own facts.

Federal preemption does not block any of this. 49 U.S.C. § 14501's safety carve-out preserves Virginia's authority to regulate towing for safety reasons. The non-consensual towing pricing carve-out covers police-requested towing without consent of the vehicle's owner.

What this meant at the time

For Harrisonburg PD and similar police agencies (as of 2009)

Keep your rotating list and your basic safety criteria. Document the public-safety justification for each criterion. If the criterion (like requiring a specific second wrecker type) looks more like industry regulation, push the question to City Council for ordinance treatment.

For tow truck operators (as of 2009)

If your local police department refused to include you on its rotation list, you could ask whether the criterion they applied was tied to a documented public-safety need. If not, you had a colorable argument that the criterion was regulatory in nature and could only be imposed by ordinance under § 46.2-1217 (which would have required the advisory-board process, including industry representation).

For city council members and county supervisors (as of 2009)

The opinion was a reminder that meaningful regulation of police-towing in your jurisdiction requires you to act. The police department's internal procedures could only go so far. To enact substantive licensing, area assignments, or fee schedules, you needed to appoint an advisory board and pass an ordinance.

Common questions

Q: What is the advisory board for under § 46.2-1217?
A: The advisory board must include representatives of local law enforcement, towing and recovery operators, and the general public. It exists to give the governing body informed recommendations before an ordinance or contract is adopted. The opinion notes that this advisory step is mandatory if the locality wants to use § 46.2-1217 authority.

Q: Can a police department charge tow operators a fee to be on the rotation list?
A: Imposing fees would likely be regulatory in nature and would require the local ordinance route under § 46.2-1217 or wait for the state regulations under § 46.2-2826.

Q: Does the opinion permit "exclusive" police-tow contracts?
A: Section 46.2-1217 itself permits a locality to contract for exclusive service with one or more towing businesses, but that path requires the advisory board plus the contract, not unilateral police-department action.

Q: What about federal interstate trucking preemption?
A: 49 U.S.C. § 14501 generally preempts state and local regulation of motor-carrier prices, routes, and services. But it has specific exceptions for safety regulation and for non-consensual tow pricing, so Virginia's framework largely survives federal preemption.

Citations and references

Statutes:

• Va. Code Ann. § 2.2-505
• Va. Code Ann. § 46.2-1209, § 46.2-1212.1, § 46.2-1217
• Va. Code Ann. §§ 46.2-2800 through 46.2-2828, § 46.2-2809, § 46.2-2826 (Towing and Recovery Operators)
• 49 U.S.C. § 14501

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-084-Hanger.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell, Attorney General

February 2, 2009

The Honorable Emmett W. Hanger, Jr.
Member, Senate of Virginia

Dear Senator Hanger:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a local police department may enact regulatory guidelines for towing and recovery service companies absent the local governing body creating an advisory board and enacting an ordinance pursuant to § 46.2-1217.

Response

It is my opinion that in the interest of highway safety, a local police department may adopt certain procedures for selecting private towing and recovery service companies to provide safe and efficient removal, storage, and safekeeping of vehicles involved in traffic accidents or other highway safety incidents. However, such procedures may not infringe upon the authority of the local governing body to regulate towing and only may address matters related to public safety. Further, it is my opinion that whether such procedures address public safety concerns is a question of fact.[1]

Applicable Law and Discussion

Section 46.2-1217 provides, in pertinent part, that:

The governing body of any county, city, or town by ordinance may regulate services rendered pursuant to police towing requests by any business engaged in the towing or storage of unattended, abandoned, or immobile vehicles. The ordinance may include delineation of service areas for towing services, the limitation of the number of persons engaged in towing services in any area, including the creation of one or more exclusive service areas, and the specification of equipment to be used for providing towing service.

The governing body of any county, city, or town may contract for services rendered pursuant to a police towing request with one or more businesses engaged in the towing or storage of unattended, abandoned, or immobile vehicles. The contract may specify the fees or charges to be paid by the owner or operator of a towed vehicle to the person undertaking its towing or storage and may prescribe the geographical area to be served by each person providing towing services. The county, city, or town may establish criteria for eligibility of persons to enter into towing services contracts and, in its discretion, may itself provide exclusive towing and storage service for police-requested towing of unattended, abandoned, or immobile vehicles. Such criteria shall, for drivers of tow trucks and towing and recovery operators, be no less restrictive than those established pursuant to Chapter 28 (§ 46.2-2800 et seq.) of this title and regulations adopted pursuant thereto.

Prior to adopting an ordinance or entering into a contract pursuant to this section, the local governing body shall appoint an advisory board to advise the governing body with regard to the appropriate provisions of the ordinance or terms of the contract. The advisory board shall include representatives of local law-enforcement agencies, towing and recovery operators, and the general public.

Section 46.2-1217 refers to criteria established pursuant to Chapter 28 of Title 46.2, §§ 46.2-2800 through 46.2-2828, for tow truck drivers and towing and recovery operators and mandates the criteria established by the locality "shall … be no less restrictive" than Chapter 28. Section 46.2-2826 provides that:

The Board [for Towing and Recovery Operators] shall establish regulations required of Class A and Class B operators to provide public safety towing and recovery services. For the purposes of this section, "public safety towing and recovery services" shall be those towing and recovery and related services requested by a state or local law-enforcement agency. Such regulations shall establish minimum requirements, including qualifications, standards, necessary equipment, and public safety concerns necessary and appropriate to permit a Class A or Class B operator to provide public safety towing and recovery services. No operator shall provide public safety towing and recovery services unless they meet such criteria established by Board regulation applicable to public safety towing and recovery services. Upon submitting evidence to the Board of meeting such criteria, the Board shall maintain, on a timely basis, a list to be readily available to state and local law-enforcement agencies of Class A and Class B operators who meet the Board's criteria for providing public safety towing and recovery services.

The Board for Towing and Recovery Operators (the "Board") has not yet established such regulations or criteria because § 46.2-2809 provides that "[n]o regulation of the Board pertaining to public safety towing and recovery services, as provided in § 46.2-2826, shall become effective prior to July 1, 2010."[2]

Other statutory provisions apply to the authority of local and state law-enforcement officers to remove, store, and safeguard vehicles involved in accidents or other highway safety incidents. First, § 46.2-1212.1 provides:

A. As a result of a motor vehicle accident or incident, the Department of State Police and/or local law-enforcement agency in conjunction with other public safety agencies may, without the consent of the owner or carrier, remove:

1. A vehicle, cargo, or other personal property that has been (i) damaged or spilled within the right-of-way or any portion of a roadway in the state highway system and (ii) is blocking the roadway or may otherwise be endangering public safety; or

2. Cargo or personal property that the Department of Transportation, Department of Emergency Management, or the fire officer in charge has reason to believe is a hazardous material, hazardous waste or regulated substance as defined by the Virginia Waste Management Act (§ 10.1-1400 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1808 et seq.) or the State Water Control Law (§ 62.1-44.2 et seq.), if the Department of Transportation or applicable person complies with the applicable procedures and instructions defined either by the Department of Emergency Management or the fire officer in charge.

B. The Department of Transportation, Department of State Police, Department of Emergency Management, local law-enforcement agency and other local public safety agencies and their officers, employees and agents, shall not be held responsible for any damages or claims that may result from the failure to exercise any authority granted under this section provided they are acting in good faith.

C. The owner and carrier, if any, of the vehicle, cargo or personal property removed or disposed of under the authority of this section shall reimburse the Department of Transportation, Department of State Police, Department of Emergency Management, local law-enforcement agency, and local public safety agencies for all costs incurred in the removal and subsequent disposition of such property.

Next, § 46.2-1209 provides, in part, that:

No person shall leave any motor vehicle, trailer, semitrailer, or part or combination thereof immobilized or unattended on or adjacent to any roadway if it constitutes a hazard in the use of the highway. No person shall leave any immobilized or unattended motor vehicle, trailer, semitrailer, or part or combination thereof longer than twenty-four hours on or adjacent to any roadway outside the corporate limits of any city or town, or on an interstate highway or limited access highway, expressway, or parkway inside the corporate limits of any city or town. Any law-enforcement officer may remove it or have it removed to a storage area for safekeeping and shall report the removal to the Department [of Motor Vehicles] and to the owner of the motor vehicle, trailer, semitrailer, or combination as promptly as possible.

Finally, there is a federal law that relates to this issue. Federal authority over intrastate transportation is set out in 49 U.S.C. § 14501, which provides in pertinent part:

(c) Motor carriers of property.—

(1) General rule.—Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

(2) Matters not covered.—Paragraph (1)—

(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization;

….

(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.

….

(3)(C) Limitation on statutory construction.—Nothing in this section shall be construed to prevent a State from requiring that, in the case of a motor vehicle to be towed from private property without the consent of the owner or operator of the vehicle, the person towing the vehicle have prior written authorization from the property owner or lessee (or an employee or agent thereof) or that such owner or lessee (or an employee or agent thereof) be present at the time the vehicle is towed from the property, or both.

Thus, regulation of the towing industry is addressed by both federal and state laws and, potentially, by local ordinances. Given that legal framework, the question becomes what authority is available to law-enforcement agencies regarding regulation of towing operations within their jurisdictions. This especially is true because the Board has not promulgated the regulations required by § 46.2-2826, and the local governing body has not enacted ordinances or entered into contracts with towing companies pursuant to § 46.2-1217.

You ask about specific procedures adopted by the Harrisonburg Police Department (the "Procedures").[3] The primary purpose of the Procedures appears to be a description of the process by which the Police Department will call towing companies to the scene of an accident or other incident requiring towing services. The Procedures describe a rotating list of qualified towing companies that will be called when such an incident occurs. Additionally, the Procedures require the call for a particular incident to go to the company at the top of the list. The remainder of the Procedures describe how a company is placed on or remains on the rotating list as a qualified company.

Most of the Procedures' requirements for becoming a qualified towing company on the rotating list relate to general safety concerns about the proper equipment needed to tow vehicles, to clean up accident scenes, and to communicate with law-enforcement, and the need for twenty-four-hour availability to clear accident scenes safely and expeditiously. Law-enforcement agencies have a general duty to provide for public safety on the highways, including the specific statutory duties set out in §§ 46.2-1209 and 46.2-1212.1. The Procedures generally appear to fit within law-enforcement public safety duties by utilizing private companies that are capable of providing safe and expeditious service.

However, there are provisions in the Procedures that may go beyond establishing a process for utilizing private companies to enforce the Harrisonburg Police Department's public safety duties to clear the highways. Some provisions may be construed to be regulatory in nature. An example is the requirement that a towing company must have at least two wreckers, one a "rollback" and the other a "crane recovery wrecker," to be a qualified operator. It is possible that in some localities such a requirement for two wreckers of the specified types might be justifiable on public safety grounds. However, the procedures that are justifiable on public safety grounds will vary from jurisdiction to jurisdiction.[4] Accordingly, there is a factual issue regarding whether such a requirement is essential solely based on public safety needs. Where a requirement regarding a "rollback" and "crane recovery wrecker" falls into the realm of regulation of towing companies, such regulation is permitted under federal and state law, but requires local adoption of ordinances or contractual arrangements following the appointment of an advisory board or by the Board pursuant to § 46.2-2826.

Conclusion

Accordingly, it is my opinion that in the interest of highway safety, a local police department may adopt certain procedures for selecting private towing and recovery service companies to provide safe and efficient removal, storage, and safekeeping of vehicles involved in traffic accidents or other highway safety incidents. However, such procedures may not infringe upon the authority of the local governing body to regulate towing and only may address matters related to public safety. Further, it is my opinion that whether such procedures address public safety concerns is a question of fact.[5]

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. Attorneys General historically have declined to render official opinions when the request involves a question of fact rather than one of law. See, e.g., Op. Va. Att'y Gen.: 1997 at 195, 196; 1996 at 207, 208.

2. Prior to the adoption of regulations establishing the criteria mandated by § 46.2-2826, the 2008 Session of the General Assembly amended § 46.2-2809 by adding the quoted language, which defers the effective date of such regulations until July 1, 2010. See 2008 Va. Acts ch. 836, available at http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0836+pdf.

3. A copy of the Procedures, "Harrisonburg Police Department Operational Guidelines and Equipment Requirements for Wrecker Companies," is on file with this Office. For purposes of this opinion, all references and information about the Procedures were derived from this document.

4. "Prior to proceeding further with drafting of any public safety towing regulations, the Board of Towing and Recovery Operators shall hold four public meetings to receive comments and recommendations regarding the appropriate equipment, standards, training, safety and other factors related to providing public safety towing and recovery services." 2008 Va. Acts, supra note 2 (quoting enactment clause 2).

5. See supra note 1.