Sunday, August 12, 2012

Georgia Law Apparently Does Not Permit the Booting of Cars On Private Property

    You may wonder why car booting is in this blog.  Well, the Georgia Code section that deals with alleged trespassing of cars on private property is in the real property section of the Code, OCGA 44-1-13. That Code Section allows the towing of trespassing vehicles on private property.  What it DOES NOT do is allow the booting or immobilization of vehicles on private property in the State of Georgia.  In other words, it appears to be illegal to boot cars in Georgia on private property.  How do I know this even moreso?  Because in 201l Representatives Heckstall and Fludd (Whoever they are, feel free to vote them out of office) introduced bill HB 490 into the General Assembly to amend OCGA 44-1-13 to allow the booting of cars on private property in the State of Georgia.  The law has not been passed, and therefore in my opinion it is illegal to do so in Georgia. Obviously, the General Assembly, or at least Heckstall and Fludd, felt that it was necessary to amend OCGA 44-1-13 so that it would be legal, so it appears obvious that as the statute stands, it is illegal.  Yet it goes on all over the place.

     In its infinite wisdom, the Atlanta City Code purports to regulate "vehicle immobilization" in the City of Atlanta and vehicle booting companies.  It has requirements regarding signs, booting companies, etc.  When I read this I thought, where is the enabling legislation to give this authority to the City of Atlanta?  The City Code does not say when a car may be booted on private property, or put another way, what constitutes a violation permitting a boot.  I searched the Georgia Code and came up empty.  All I could find was OCGA 44-1-13 and the failed attempt to amend it to allow booting on private property.  So unless I am missing something (I am by no means an expert in state and municipality jurisdictional relations, but I did pass the Georgia Bar) vehicle operators in the city of Atlanta are being scammed by parking lot owners and the vehicle immobilization business.  If anyone reads this and can explain how I am wrong I would be happy to apologize and take down this post.  Until then, readers, knock yourselves out fighting City Hall, and raising as much ruckus as you can to fight this. If you do get booted,  I recommend paying with a credit card, not cash, and disputing the charge as soon as possible.  That is what I did.  If you get towed you are probably out of luck but the statute seems incredibly vague as to what and when an actual customer in a shopping center, who was an invitee, becomes a trespasser for leaving the car parked in the lot.  I haven't researched the case law on that important point but I invite anyone to look into it and comment.

    Recently your faithful blogger had the pleasant experience of parking in a parking lot at a small shopping center with a Starbucks in it, buying coffee, walking outside and around the block to make a private phone call, chatting with a friend, and returning to find a boot on my car and a rude, gleeful worker for the booting company sitting in the car, ready to ambush anyone who so much as stepped foot out of the parking lot for a second to put a clamp on their car.  I had walked right by the guy when I went off.  He could have easily had the decency to alert me that walking out of the lot was considered grounds for his services but there's no money in that, right? He pointed out a sign that was on the property warning that the lot was for "current customers" only and that cars could get booted.  But I didn't walk past it and could not read it unless I went well out of my way to go see what it said. Besides, I WAS a current customer who happened to have to make a call outside the shop. I even wanted a refill darn it.  And the lot was not very busy, it might have had 20% of its spaces filled. This man lurking in the lot and booting cars said they had a policy of immediately booting when someone walks off the property. That makes no sense and is patently unreasonable.  I can understand that a shopping center owner wants to protect spaces for shoppers that come by, but the lot was almost empty and the fellow was sitting right on sight.  At least a tow truck would be visible.  Obviously this is a scam to hide in a car with a trunk full of boots and trap unsuspecting actual customers of the shopping center the minute they are out of sight.  The man booting the cars was a complete jerk and was incredibly rude to my wife, which in my experience is a really bad idea, and boorish. 

    Moreover, I can see how this could be a public safety issue actually harming the public, because  people who park in parking lots may become intoxicated and leave their cars overnight because they are too impaired to drive, whether they are towed or not (I have gotten complaints about this, people say "they may as well drive drunk and take the risk", not a good idea, of course, but drunk people have a lot of bad ideas, and it is legal to get drunk).  It seems like getting booted would be a disincentive to refrain from drinking and driving if you feared that your car would be booted or towed.  It is one thing to park illegally, but it is another to be punished for the good deed of not driving and endangering the public.  Is the profit of keeping spaces open and keepijng booting services profitable greater than keeping dangerous drivers off the road?  Luckily I am a caffeine man these days myself, but I was so enraged at this I thought I might have a heart attack in the parking lot myself (I guess caffeine isn't so great either).  Furthermore, these people have cameras on their dashboard as well, and they admit that they tape "video interactions" with their victims.  That is a great invasion of privacy we should all be proud of in America.   

   Finally, the Georgia Home Rule Act delegates specific powers for municipalities to pass laws in certain areas.  However, the Georgia Assembly has expressly limited the ability for local governments to regulate in certain areas, and one of the limits is contained in OCGA 36-35-6(b). It says local government shall not have "The power granted in subsections (a) and (b) of Code Section 36-35-3 (the Home Rule authority) shall not include the power to take any action affecting the private or civil law governing private or civil relationships, except as is incident to the exercise of an independent governmental power." So regulating a private car on a private lot is for the state to make the laws, not the cities.  And the state has chosen to allow towing under certain circumstance and chose not to allow vehicle immobilization, ie, booting. 

   The municipalites would probably argue that their police power to provide "safety" is their excuse, but that seems lame in the face of the danger of motivating drunk drivers to drive after hours.  And what evidence is there that the public safety warrants the obvious trespasses to private property (a car is private personal property) caused by these scammers?  Perhaps on occasion booting might be needed, such as during a festival or a Falcons game, etc.  But that should be the exception, not the rule.  The property owners should have to petition to get the right to boot, and these scamming boot companies should not have free license to make money by hiding in plain sight booting anything they can get their hands on.  If the city actually did its job and regulated the booting companies it licenses it might work but they obviously do not do that.  Since I originally posted this I have been inundated with positive comments from irate folks who got scammed by the booters in outrageous incidents.  These booting companies are basically like the road "checkpoints" you read about in failed states (Afghanistan comes to mind) where you basically have to pay a bribe to somebody to drive up and down the road.  No wonder this city is covered with parking lots instead of parks or public decks maintained by the City. 

    By the way the address was on Moreland Avenue in Little Five Points and the parking company can be found on the internet with several complaints from folks who feel like they were ripped off.  I haven't figured out who the landlord is but I certainly will.  If I were Starbucks I would be none too pleased about how their landlord, its property manager, and this parking company treat their customers.  I should own stock in the Starbucks company I buy so much of their stuff.  Maybe this company has an Atlanta permit but they do not have the amendment to OCGA 44-1-13 effectuated to allow them to boot on private property.  State law trumps municipal law.  I am actually mulling over the merit of filing a class action lawsuit against these scavenger companies and trying to put them out of business.  I wouldn't mind finding out who they work with and adding their private customers to the list of defendants as well.  If I am right about the illegality of this private property booting then the class action seems totally certifiable ( a "class" lawsuit has to be ceritified by the judge based on the similarity of all the claims), because all the victims are substantially similar no matter what their story is and the circumstances.  Maybe they should have gotten towed but not snowed.     

Perhaps I am a little obsessive to get this mad over a $50 boot on my car. But it is that obsession that helps me fight 110 per cent for my clients and to right as many wrongs as possible before I kick the bucket.