Eenie, meenie, miney, mo... who's to regulate this tow?

• Author: Saunders, III, James E.

Many may remember the children's fanciful rhyme "eenie, meenie, miney, mo," used to determine who would be the chosen "It," responsible for chasing and tagging the next player. While the game was exhilarating and exciting, it was often frustrating and tiresome because your intended targets were always too elusive, especially if they were physically bigger than you. Local governments around the country have begun to feel like the veritable "It," questioning whether local regulation of towing and its related services is preempted by federal law or permissible under a state's delegated authority. This article will examine local regulation of towing services in the wake of R. Mayer of Atlanta v. City of Atlanta, 158 F.3d 538 (C.A. 11 1998), and City of Columbus, et al. v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424 (2002), and highlight permissible areas for local government intervention.

Towing services are rendered throughout Florida either on a consensual or nonconsensual basis. If a vehicle is disabled due to an accident or mechanical malfunction and a tow truck removes the vehicle upon the owner or operator's consent, or in some circumstances, upon the law enforcement officer's direction, these tows are considered consensual. However, where vehicles parked in an illegal or unauthorized manner are removed without the owner or operator's permission, these tows are commonly referred to as nonconsensual. Nonconsensual towing typically garners most of the public's attention and can lend itself to predatory practices. For example, Broward County filed an emergency motion for injunctive relief against two local tow companies that refused to charge the Broward County promulgated rate for nonconsensual tows. Outside the judge's chambers were several helpless and hapless consumers whose vehicles were involuntarily towed and only retrievable once the consumer paid towing and storage fees in excess and in addition to those fees authorized under Broward County's Code of Ordinances. There was a moderately clad woman in her 40s, who was completely exasperated when forced to take the bus to retrieve her only vehicle from a distant tow yard after being towed from a local grocery store; a disenchanted parent who explained how her son called at twilight, disoriented and bewildered that the family car was towed and who took a taxi to an automatic teller machine in a seedy neighborhood because the tow company would not accept a credit card or check; and an elderly couple, who unknowingly parked in an area marked "Drycleaners only" within a crowded plaza, went into the local drugstore, returned just in time to see their vehicle on a tow truck, but who were refused by the tow truck driver the opportunity to retrieve their vehicle without going through the expense and time of traveling to the tow yard.

This anthology of crime and passion began when the 11th Circuit Court of Appeals issued its opinion in Mayer, eviscerating local government regulation of motor vehicle transportation by a tow truck. In 1977, the Atlanta City Council adopted several ordinances governing the provision of towing services within the city limits. (1) These towing ordinances, in general, required any person operating as a tow company to first obtain a license appropriately granted by the mayor of Atlanta. Further, the interested applicant was required to provide personal and/or corporate information, business location, list of charges for towing services, description of type and amount of insurance, and such other information that may be required by the police or the license review board. Moreover, the applicant was required to register all tow company drivers and their vehicles with the police. Between 1990 and 1992, Atlanta law enforcement officers issued several citations to the respective towing companies for failing to obtain the requisite permits or registration to operate within the city limits. Subsequently, the towing companies filed a complaint in federal court seeking declaratory and injunctive relief enjoining enforcement of Atlanta's towing ordinance.

Following the tow companies filing of this action, Congress enacted the Federal Aviation Administration Authorization Act of 1994 (FAAA Act) amending the Interstate Commerce Act (ICA) and preempting state and local government regulation of intrastate transportation. (2) Specifically, the FAAA Act prohibited the enactment and enforcement of a law, regulation, or other provision having the force and effect of law related to price, route, or service of any motor carrier with respect to the transportation of property. (3) This prohibition, however, makes no reference to towing services. Further, the FAAA Act excepted state regulations regarding safety, highway route controls, size and weight of motor vehicles, hazardous cargo, and minimum amounts of financial responsibility. (4) These provisions however, again made no specific reference to towing services. Inadvertently, towing companies were omitted as motor carriers and exempt from local government regulation. It was not until December 29, 1995, when Congress passed the Interstate Commerce Commission Termination Act (ICCTA) of 1995, (5) that towing services were recognized. The ICCTA recodified the general prohibition of the FAAA Act and added the new exception relating to the price of for-hire motor vehicle transportation by a tow truck, if...