Official Opinion 2019-1
Commissioner, Georgia Department of Public Safety
The Department of Public Safety is not authorized to establish maximum rates for the removal and storage of motor vehicles pursuant to the Abandoned Motor Vehicle Act beyond its regulatory authority as set forth in O.C.G.A. § 44-1-13
You have asked whether the Department of Public Safety (“DPS”) is authorized and/or required to establish maximum rates for the removal and storage of motor vehicles under Section 5 of Act No. 275 (H.B. 307) (2019) (the Abandoned Motor Vehicle Act), and if so, what enforcement mechanisms exist for DPS to enforce those rates. For the reasons that follow, I conclude that DPS is not authorized to establish maximum rates for the removal and storage of motor vehicles under the Abandoned Motor Vehicle Act beyond those that fall within the regulatory authority of DPS as set forth in O.C.G.A. § 44-1-13. Under O.C.G.A. § 44-1-13, DPS’s regulatory authority is limited to motor vehicles that are removed from private property at the owner’s request because the vehicle is trespassing. See O.C.G.A. §§ 40-11-11 through 40-11-19.5, 2019 Ga. Laws 872; O.C.G.A. § 44 1 13.
The Abandoned Motor Vehicle Act (“the Act”) was enacted during the 2019 legislative session to create a comprehensive and streamlined process for the removal of abandoned and unclaimed vehicles from public rights of way and private or public property. See O.C.G.A. § 40-11-12. The Act, in part, identifies circumstances in which a “towing and storage firm” may remove motor vehicles from private and public property, O.C.G.A. §§ 40-11-15, 40-11-16, and limits fees for removal and storage to the “maximum allowable charge” as “set forth by rule and regulation of [DPS] for maximum state-wide rate tariffs,” or rates specified in agreements with local governing authorities, except where exempted by federal law, rules, or regulations. O.C.G.A. § 40-11-19.
The Act defines a “towing and storage firm” as “any person regulated by [DPS] and in compliance with the requirements of Code Section 44-1-13 who removes a motor vehicle from private or public property with or without the consent of the motor vehicle owner…and provides storage for such motor vehicle after removal.” O.C.G.A. § 40-11-13(a). The Act does not purport to grant DPS any new regulatory authority and instead relies on the authority outlined in O.C.G.A. § 44-1-13. See O.C.G.A. § 40-11-12 (“Businesses removing motor vehicles from public rights of way and private property without the consent of an owner are regulated by [DPS] pursuant to Code Section 44-1-13 and, as such, the recoverable fees for these businesses are limited.”).
DPS has the express “authorization to regulate and control the towing of trespassing vehicles on private property . . . including the authority to set just and reasonable rates, fares, and charges for services related to the removal, storage, and required notification to owners of such towed vehicles.” O.C.G.A. § 44-1-13(b)(1) (emphasis added). Only towing and storage firms that have been issued permits or licenses from the local governing authority or DPS are permitted to remove a trespassing vehicle at the private property owner’s request. See O.C.G.A. § 44-1-13(a.1). Consistent with this authority, DPS has implemented rules and regulations governing the nonconsensual towing and storage of vehicles removed from private property, including setting the maximum rate tariff that a company can assess for the towing and storage of said vehicles. See Ga. Comp. R. & Regs. R. 570 36-.01 through 570 36 .12. Significantly, however, O.C.G.A. § 44-1-13 does not provide any authority to DPS to regulate or otherwise implement rules with regard to abandoned vehicles (unless also trespassing) or any vehicles on public property or public rights of way. See generally O.C.G.A. § 44-1-13.
Under Georgia law:
[T]he cardinal rule of statutory construction “look[s] diligently for the intention of the General Assembly,” Judicial Council v. Brown & Gallo, LLC, 288 Ga. 294, 296-97 (2010), and “the ‘golden rule’ of statutory construction . . . requires us to follow the literal language of the statute ‘unless it produces contradiction, absurdity, or such an inconvenience as to insure that the legislature meant something else.’” Telecom*USA v. Collins, 260 Ga. 362, 363 (1990) (quoting Dept. of Transp. v. City of Atlanta, 255 Ga. 124, 137 (1985) (Clarke, J., concurring specially)).
2016 Op. Att’y Gen. 2016 5. As an administrative body created by the legislature, a state agency has only such powers as the legislature has expressly, or by necessary implication, conferred upon it. Bentley v. State Bd. of Med. Examiners, 152 Ga. 836, 838 (1922). Powers will only be implied where they are “reasonably necessary to execute the express powers conferred upon [the state agency].” Id.
Regardless of whether the General Assembly intended for DPS to regulate and set fares relating to the removal and storage of vehicles abandoned on private and public property, the plain language of the applicable statutory provisions do not grant DPS that authority. Compare O.C.G.A. § 40-11-12 with O.C.G.A. § 44-1-13. The Act does not confer any new authority to DPS, and instead references the authority already existing pursuant to O.C.G.A. § 44 1 13. See O.C.G.A. §§ 40-11-12, 40-11-13(9), 40-11-19(a)(1). The express authority granted to DPS under O.C.G.A. § 44-1-13 extends only to the regulation of trespassing vehicles on private property. See O.C.G.A. § 44-1-13(b)(1). Without an express statement that DPS has the power to regulate beyond the parameters set forth in O.C.G.A. § 44 1-13, DPS is without the authority to do so.
Given the above provisions, I conclude that DPS is not authorized to establish maximum rates for the removal and storage of motor vehicles pursuant to the Abandoned Motor Vehicle Act beyond its regulatory authority as set forth in O.C.G.A. § 44-1-13.
Assistant Attorney General