Could the Georgia Department of Public Safety set maximum statewide towing and storage rates for vehicles abandoned on public or private property after the 2019 Abandoned Motor Vehicle Act?

Plain-English summary

In 2019, the General Assembly passed HB 307, the Abandoned Motor Vehicle Act (codified at O.C.G.A. §§ 40-11-11 through 40-11-19.5). The Act created a comprehensive process for removing abandoned and unclaimed vehicles from public rights of way and from public or private property. The Act also said that fees charged by towing and storage firms were limited to the "maximum allowable charge" set by DPS rule.

The DPS Commissioner asked whether the Act gave DPS authority to set maximum statewide rates for the new abandoned-vehicle removal process, and if so, what enforcement mechanisms existed. AG Chris Carr answered no on the broader rate-setting authority.

The reasoning hinged on a careful read of two statutes. O.C.G.A. § 44-1-13 had given DPS, since well before 2019, "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." Notably, § 44-1-13's grant of authority was specific to "trespassing vehicles on private property." It did not extend to abandoned vehicles generally, or to vehicles on public property or public rights of way.

The 2019 Act did reference DPS in its definition of "towing and storage firm" (someone "regulated by [DPS] and in compliance with the requirements of Code Section 44-1-13") and in its rate provision (rates "set forth by rule and regulation of [DPS] for maximum state-wide rate tariffs"). But the Act's own text, in O.C.G.A. § 40-11-12, said that businesses removing motor vehicles from public rights of way and private property "are regulated by [DPS] pursuant to Code Section 44-1-13." The cross-reference made clear that the Act was using existing DPS authority, not granting new authority.

Under the standard rule for state agencies (Bentley v. State Bd. of Med. Examiners), DPS has "only such powers as the legislature has expressly, or by necessary implication, conferred upon it," with implied powers limited to what is "reasonably necessary to execute the express powers conferred." The 2019 Act did not expressly grant DPS the broader rate-setting authority, and necessary implication did not extend that far. So DPS's rate-setting authority remained limited to the original trespass-tow scope under § 44-1-13.

Currency note

This opinion was issued in 2019. 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.

Common questions

Q: What kinds of tows did DPS still control rates for?
A: Non-consensual tows of trespassing vehicles from private property under O.C.G.A. § 44-1-13. The classic case: a car parked in a no-parking zone of a private parking lot, towed at the request of the property owner. DPS sets maximum rates for that scenario in Ga. Comp. R. & Regs. R. 570-36-.01 through .12.

Q: What about abandoned vehicles on a public road?
A: Outside the DPS rate cap, on the AG's reading. The 2019 Act did not grant DPS authority over rates for abandoned vehicles on public property or public rights of way.

Q: Could a local government step in and cap rates?
A: The 2019 Act referenced "rates specified in agreements with local governing authorities." So a city or county could, by agreement with the towing firm, cap rates for abandoned-vehicle removals from its public property or rights of way.

Q: What were the DPS towing rules under § 44-1-13?
A: DPS published Ga. Comp. R. & Regs. R. 570-36-.01 through .12, which set the maximum statewide rate tariffs for non-consensual tows from private property. The rules covered hookup fees, mileage, daily storage, and other charges.

Q: Why couldn't the Commissioner just read the 2019 Act broadly?
A: Georgia agencies are creatures of the legislature with only the powers expressly or impliedly granted. The 2019 Act's text consistently cross-referenced § 44-1-13 rather than independently granting new authority. The AG read the Act as relying on existing authority, not expanding it.

Q: What about federal preemption (the F4A Act and similar)?
A: § 40-11-19 carves out cases where federal law, rules, or regulations exempt a particular tow. The opinion did not analyze federal preemption in detail; it focused on the state-law authority question.

Background and statutory framework

Georgia's framework for non-consensual towing splits along two axes: who initiated the tow (private property owner vs. public authority) and what kind of vehicle (trespassing vs. abandoned/unclaimed). Each combination has different procedural rules and rate-setting authority.

The pre-2019 framework gave DPS clear rate-setting authority only for tows of trespassing vehicles from private property. § 44-1-13 was the operative provision. Tows of abandoned vehicles, tows from public property, and tows by or on behalf of public authorities operated under different statutes with different (or no) rate caps.

The 2019 Abandoned Motor Vehicle Act consolidated the abandoned-vehicle removal process. It created a streamlined procedure for towing firms to handle abandoned vehicles, satisfy notice requirements to owners, and dispose of unclaimed vehicles. But the General Assembly did not, in HB 307, give DPS broader rate-setting authority. The Act's drafters chose to reference existing DPS authority under § 44-1-13 rather than extend it.

The opinion is a clean example of the limits on agency authority. Even when an agency administers part of a new statutory regime, its rule-making authority extends only as far as the legislature has authorized, expressly or by necessary implication.

Citations and references

Statutes:
- O.C.G.A. §§ 40-11-11 through 40-11-19.5 (Abandoned Motor Vehicle Act)
- O.C.G.A. § 44-1-13 (DPS regulation of trespassing vehicles)
- 2019 Ga. Laws 872 (HB 307)

Cases:
- Bentley v. State Bd. of Med. Examiners, 152 Ga. 836 (1922) (state agencies have only powers conferred by legislature)

Source

• Landing page: https://law.georgia.gov/opinions/2019-1

Original opinion text

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. Prepared by: Meghan Davidson Assistant Attorney General