It's a towing law that's been on the Albany County books for more than five years to protect drivers from predatory or frivolous tows.
And in all that time, not a single towing company has been fined for violating the rules.
But now, Joe's Osborne Street Garage in Albany is facing a 10-thousand dollar ticket for allegedly breaking the law.
The 2007 Albany County law sets a $100 dollar price cap on a tow, says that the owner of the parking area itself must be present for the tow to take place, and mandates that the tow company have a contract with the property the vehicle is being towed from.
But Albany County Attorney Thomas Marcelle says Joe's Osborne Street Garage recently violated all three provisions, and hit the company with the hefty fine.
"So this woman came to the Albany County Consumer Affairs Department and said, 'My car was towed illegally," Marcelle said.
So, he says, the Albany County Attorney's office investigated, and determined Joe's had, in fact, violated all three rules, overcharging for the tow, not having a contract, and failing to have the parking lot owner present.
But Lewis Oliver, the attorney representing Joe's Osborne Street Garage, says the timing of the $10-thousand dollar fine is awfully convenient.
His law firm, The Oliver Law Office, just filed a lawsuit against the county on behalf of Joe's.
Oliver said, "This local law has been in effect in Albany County for approximately five years now, and no one has ever been charged with a violation of this local law, no land owner, and no towing company. Then, we filed this lawsuit, and suddenly there's this effort to collect a ten or $15 thousand dollar fine. This is obviously retaliation for using the courts in order to enforce constitutional rights, and it's really disappointing that the county would waste its lawyer's time doing something like this.
But the County Attorney vehemently denies the allegations, saying that the fine was assessed to Joe's Osborne Street Garage simultaneous to the lawsuit, and that the two are unrelated.
Marcelle said, "They broke the law! It would be ridiculous to look the other way just because they filed a frivolous lawsuit. We can't do that. We have to enforce the law. Their clients broke it and now they're towed into State Supreme Court."
Marcelle added, "They filed the lawsuit, then there was a violation. And that's the point. The point is, if they wanted to hash it out hash it out. They hadn't violated the law up to the point that they filed the lawsuit, and then decided, 'We'll violate the law,' and you can't do that. We have due process in this county, and we have to follow it."
But the attorney for Joe's says the county towing rules are too restrictive.
Oliver said, "If somebody trespasses on your property, you have the right to exclude them. And this local law, which requires them to be present in order to exclude a trespassing vehicle, is a restriction on their private property rights. This is really a property rights case where the county local law is trying to diminish the right of the land owner to control who can trespass on his property."
That's why Oliver is asking the court to rule those stipulations to be unconstitutional, and have them removed from the 2007 county towing law
"We're looking for the sections of the law, which require the land owner to be present and to have a contract to be declared null and void," Oliver said.
Oliver says the county towing rules are unnecessary because New York State already governs towing activity.
"If the towed by a towing company, under the New York State law, the police will be notified and they'll be able to tell the individual which towing company has their car, and that's the way it works. There's no need to have the land owner personally present, and the only effect of that requirement of having the landowner personally present is to make it that the person parking illegally can't be towed," Oliver said.
But Marcelle says the reason the law was adopted in 2007 to begin with, is Joe's Osborne Street Garage.
Marcelle said, "It addressed a real problem that was happening with Joe's Osborne Street garage."
When asked if this was, "Mainly just a problem with that particular tow company, of if there have been other complaints," Marcelle said, "We have no other complaints that I am aware of with any other tow company."
Marcelle says the 2007 law is being enforced now, for a reason.
He said, "Maybe 10-thousand dollars will send a message that 'You gotta obey the law.'"
The county attorney went on to say, "Unless the law is struck down by a court, it must be followed, or fines will be assessed."
Joe's lawyer says the rules only serve to promote illegal parking.
The case is now in the hands of the New York State Supreme Court.
