Rebel Enterprises, Inc. v. Palm Beach Sheriff

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_______________ JULY 31, 2002
THOMAS K. KAHN
No. 01-15738 CLERK
_______________

D. C. Docket No. 00-8570-CV

REBEL ENTERPRISES, INC. a Florida Corporation,
d.b.a. King’s Wrecker Service,

Plaintiff-Appellant,

versus

PALM BEACH SHERIFF, Robert Eumann,
EDWARD BIELUCH, Sheriff of Palm Beach County,

Defendants-Appellees.

______________________________

Appeal from the United States District Court
for the Southern District of Florida
______________________________

(July 31, 2002)
Before TJOFLAT and KRAVITCH, Circuit Judges, and DOWD*, District Judge.

DOWD, District Judge:

I.

This case was initiated by the appellant, Rebel Enterprises, Inc., a motor

vehicle wrecker operator, when it sought injunctive relief and damages from the

Sheriff of Palm Beach County after the Sheriff began threatening to arrest

appellant’s employees for violations of Fla. Stat. § 323.002 (1999), which regulates

certain tow truck activities.

The district court denied relief and, on appeal, a preemption issue has been

the centerpiece of the efforts of counsel, including the Attorney General of the

State of Florida who has filed an amicus curiae brief supporting the district court.1

We decline to address the preemption issue because we conclude that,

because the County of Palm Beach has never adopted a “wrecker operator system,”

*
Honorable David D. Dowd, Jr., U.S. District Judge for the Northern
District of Ohio, sitting by designation.
1
In its brief, the State has indicated a fourfold interest in the outcome of this
case: (1) the validity of its law, i.e., Fla. Stat. § 323.002; (2) the safety of its
roadways; (3) its right to delegate regulatory authority to local government; and (4)
preservation of the Florida Highway Patrol’s wrecker operator system, which is
nearly identical to the appellee’s system.
2
the county Sheriff was simply not authorized to arrest or threaten to arrest the

employees of the appellant for alleged violations of the applicable Florida statutes.

Therefore, we reverse and remand this action to the district court with

instructions to grant injunctive relief and any other relief that is deemed proper.

II.

The relevant facts are not in dispute. In 1998, the State of Florida enacted a

statutory scheme which authorizes a county or municipal government to establish a

“wrecker operator system” designed to prohibit what is commonly known as

“wreck chasing.”2 Where such a system is established, the statute prohibits certain

conduct by any wrecker operator who has not been designated as an “authorized

wrecker operator.” Anyone who violates the statute in specified ways is guilty of a

misdemeanor. See Fla. Stat. § 323.002.

2
Attempts to control “wreck chasing” have apparently generated
considerable litigation across the country, anchored in the claim that such
legislative controls are preempted by the Federal Aviation Administration
Authorization Act, as codified at 49 U.S.C. § 14501 et seq. The Supreme Court
recently decided, in a case arising out of the Sixth Circuit, that the federal statute
does not bar a state from delegating to municipalities and other local units the
state’s authority to establish safety regulations governing motor carriers of
property, including tow trucks. See Ours Garage and Wrecker Service, Inc. v. City
of Columbus, -- U.S. -- , 122 S.Ct. 2226 (2002).
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 The appellee, Sheriff Edward Bieluch3 of Palm Beach County, has

established a rotational tow operator system for that county. The appellant, Rebel

Enterprises, Inc., doing business as King’s Wrecker Service (“Rebel”), operates

tow motor vehicles which are designed to remove wrecked vehicles from the

highway. The appellant has declined participation in the Sheriff’s rotational

system by which a designated “authorized wrecker operator” would be called to the

scene of an accident or to the aid of a motorist whose vehicle is disabled. In

December 1999, a deputy sheriff advised Rebel that, if it continued to solicit

towing services at the scene of a wrecked or disabled automobile, arrests would

follow. Rebel was also warned not to utilize a police scanner to monitor police

communications.4

Rebel filed suit alleging that the enforcement action by the Sheriff has

prevented it from soliciting business. Ruling on motions for summary judgment,

the district court held, in relevant part, that 49 U.S.C. § 14501(c)(1) does not

3
The original defendant was Sheriff Robert Neumann. When Neumann lost
his bid for re-election, Edward Bieluch was automatically substituted for Neumann
in this action.
4
Under the statute, it is unlawful for an unauthorized wrecker operator to
solicit business at the scene and/or to monitor communications between the police
dispatcher and field units in order to determine the location of a wrecked or
disabled vehicle for the purpose of going to the scene to solicit business.
4
preempt Fla. Stat. § 323.002 and that the ban on roadside solicitation did not

infringe Rebel’s First Amendment rights. Final judgment was granted in favor of

the Sheriff. Rebel appealed.

III.

The parties have raised several issues: (1) whether the Florida statute is

preempted by federal law, or if it falls within the “safety exception” to

preemption;5 (2) whether the statute constitutes an improper delegation of the

State’s safety regulatory authority; (3) whether the rotation wrecker system at issue

here falls within the statutory definition of “wrecker operator system;” (4) whether

Palm Beach County implicitly authorized its sheriff to adopt a “wrecker operator

system;” and (5) whether the statute constitutes an impermissible restriction on

commercial speech in violation of the First Amendment. We find the fourth issue

dispositive and, therefore, decline to address any other issues, including the

question of preemption.

Section 323.002(1)(c) of the Florida Statutes defines “wrecker operator

system” as “a system for the towing or removal of wrecked, disabled, or

abandoned vehicles, . . . under which a county or municipality contracts with one

5
The State of Florida has also addressed the preemption issue in its amicus
brief.
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or more wrecker operators for the towing or removal of wrecked, disabled, or

abandoned vehicles from accident scenes, streets, or highways.”

The statute provides that, in a county or municipality that operates such a

system, it is a noncriminal violation punishable by fine “for an unauthorized

wrecker operator or its employees or agents to monitor police radio for

communications . . . in order to determine the location of a wrecked or disabled

vehicle for the purpose of driving by the scene [to solicit business.]” Fla. Stat. §

323.002(2)(a). It is a second degree misdemeanor for an unauthorized wrecker

operator to do either of the following: (1) “before the arrival of an authorized

wrecker operator, initiate contact with the owner or operator of such vehicle by

soliciting or offering towing services, and tow such vehicle[;]” or (2) where the

owner or operator initiates the contact, fail to “disclose to the owner or operator of

the vehicle that he or she is not the authorized wrecker operator who has been

designated as part of the wrecker operator system and [fail to] disclose, in writing,

what charges for towing and storage will apply before the vehicle is connected to

the towing apparatus.” Fla. Stat. § 323.002(2)(b), (c). Finally, the statute makes it

a first degree misdemeanor “for a wrecker operator to falsely identify himself or

herself as being part of the wrecker operator system.” Fla. Stat. § 323.002(2)(d).

6
 Under Article VIII of the Florida Constitution, a county is a political

subdivision of local government for which the board of county commissioners is

the “governing body.” Art. VIII, § 1(e). The sheriff and others (e.g., “a tax

collector, a property appraiser, a supervisor of elections, and a clerk of the circuit

court”) are merely officers of the county. Id., § 1(d).

The Florida Supreme Court has declared:

[t]he Legislature may not delegate the power to enact a
law, or to declare what the law shall be, or to exercise an
unrestricted discretion in applying a law; but it may enact
a law complete in itself, designed to accomplish a general
public purpose, and may expressly authorize designated
officials within definite valid limitations to provide rules
and regulations for the complete operation and
enforcement of the law within its expressed general
purpose. . . .

Florida State Board of Architecture v. Wasserman, 377 So.2d 653, 655 (Fla. 1979)

(emphasis added) (quoting Bailey v. Van Pelt, 82 So. 789, 793 (Fla. 1919)).

Although § 323.002(2) permits a county to “operate[ ] a wrecker operator

system,” the county must still act to adopt the system in the usual legislative

manner, that is, by formal resolution or ordinance. Once that step has been

accomplished, then the sheriff would be the logical county officer to enforce the

provisions. Absent authorization by the governing body of the county, the sheriff

7
does not have the authority to institute a system which carries with it the possibility

of criminal penalties. To put it simply: the sheriff cannot legislate.

As pointed out by the appellant, there is no record evidence that Palm Beach

County has ever officially enacted a “wrecker operator system” as is contemplated

by the Florida statute. The district court improperly credited the Sheriff’s actions

as official legislative actions when it explained that

the Sheriff’s creation and implementation of a rotational
tow truck operator system is made pursuant to valid
delegation of authority to conduct this proprietary
function, which falls under the judicially recognized
“municipal proprietor,” or “market participant” exception
to preemption, and which meets the definition of a
“wrecker operator system” within the contemplation of §
323.002, Florida Statutes (1999).

R-3-110, Final Summary Judgment at 7. Although we will not comment on the

district court’s conclusions with respect to preemption,6 we do reject the position

that legislative authority can be delegated to a county officer. We hold to the better

view that the statute requires legislative action by the board of county

6
We also acknowledge R.Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d
538 (11th Cir. 1998), cert. denied, 526 U.S. 1038, 119 S.Ct. 1334, 143 L.Ed.2d
498 (1999), a case which held that 49 U.S.C. § 14501(c)(1) expressly preempts
certain ordinances enacted by the City of Atlanta, Georgia. Without commenting
on R.Mayer’s conclusions with respect to preemption, we do note that the case is
distinguishable because it involved actual ordinances enacted by the Atlanta City
Council, not a “wrecker operator system” that arose without county legislative
action, but purely as a result of a county sheriff’s long-standing practice.
8
commissioners before the sheriff is empowered to control wrecker operators by

means of a “wrecker operator system.”

IV.

For the reasons discussed above, we REVERSE the district court’s ruling,

VACATE the final summary judgment, and REMAND with instructions to grant

injunctive relief and any other relief that is deemed proper.

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