REVISED JANUARY 16, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
Case No. 01-10194
Summary Calendar
__________________________
PETER T COLE
Plaintiff-Appellant
v.
CITY OF DALLAS
Defendant-Appellee
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________________________
December 11, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:
On June 20, 2002, in light of its decision in City of Columbus
v. Ours Garage & Wrecker Service, 122 S. Ct. 2226 (2002), the
United States Supreme Court vacated this court’s decisions in
Stucky v. City of San Antonio, 260 F.3d 424 (5th Cir. 2001),
vacated, 122 S. Ct. 2617 (2002), and Cole v. City of Dallas, 277
F.3d 1373 (5th Cir. 2001)(per curiam), vacated, 122 S. Ct. 2617
(2002), that 49 U.S.C. § 14501(c) preempts municipal safety
regulations of the towing industry.
1
Ours Garage held that while 49 U.S.C. § 14501(c) generally
preempts state regulation of the “price, route or service of any
motor carrier,” the statutory exception to this preemption for
“safety regulatory authority of a State with respect to motor
vehicles” saves both state and municipal regulations falling within
its reach from federal preemption. Ours Garage, 122 S. Ct. at
2237. Left unresolved in this case on remand from the Supreme
Court is thus whether the district court erred in finding that the
City of Dallas’s Code Chapter 48A, Section 48A-13(a)(7)(A)(xiii) is
a motor vehicle safety regulation under 49 U.S.C. § 14501(c)(2)(A).
For the reasons stated below, we find that Chapter 48A,
Section 48A-13(a)(7)(A)(xiii) is a motor vehicle safety regulation
under 49 U.S.C. § 14501(c)(2)(A).
STANDARD OF REVIEW
Although the district court denied Cole’s application for a
preliminary injunction, a determination which is generally reviewed
for abuse of discretion, the specific issue relevant to this
inquiry is the district court’s conclusion of law related to Cole’s
declaratory judgment request. The conclusion that this regulation
is not preempted by federal law is thus reviewed under a de novo
standard of review. See Kollar v. United Transp. Union, 83 F.3d
124, 125 (5th Cir. 1996); see also Branson v. Greyhound Lines,
Inc., 126 F.3d 747, 750 (5th Cir. 1997) (“We review de novo the
district court’s rulings on preemption.”).
2
FACTUAL AND PROCEDURAL PREDICATE
On January 26, 2000, the City Council for the City of Dallas
(“City”) passed Ordinance No. 21175, which amended Chapter 48A to
prohibit persons from receiving a wrecker driver’s permit to tow
motor vehicles if they have a criminal history including certain
specified criminal convictions, documented mental illnesses or
unsafe driving records. On February 2, 2000, Peter T. Cole applied
for and was denied a wrecker driver’s permit based on Section 48A-
13(a)(7)(A)(xiii) of the Dallas City Code. Section 48A-
13(a)(7)(A)(xiii) prohibits the issuance of a wrecker driver’s
permit to a person who has been convicted of a crime involving a
violation of the Controlled Substances Act (or a comparable state
or federal law) punishable as a felony for which less than five
years have elapsed since the date of conviction or the date of
confinement for the last conviction, whichever is the later date.1
Cole appealed the permit denial to an assistant city manager.
After holding a hearing in March 2000, the assistant city manager
upheld the permit denial.
On July 25, 2000, Cole filed suit in state court seeking
injunctive and declaratory relief. The City removed the case to
federal court. The district court denied Cole’s application for
1
Cole pled guilty to the charge of delivery of a
controlled substance (cocaine) in 1994. He was sentenced to a
ten-year prison term but later received a ten-year term of shock
probation for the crime. This probation was revoked after three
years. He thereafter was sentenced to a five-year prison term
but was released in January 1999.
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preliminary injunction and later entered judgment against him,
finding that the State had authority to redelegate its regulatory
power to the City and that the City properly utilized this
authority to pass the “safety” ordinance at issue.
Cole appealed the district court’s ruling to this court,
specifically arguing that the regulation at issue is preempted by
federal law because (1) the State cannot delegate its regulatory
power to a municipality under the express language of the statute,
and (2) even if the City has jurisdiction to pass a safety
regulation under the statute, this particular regulation falls
outside the safety exception to federal preemption. In light of
the City’s acknowledgment that this court’s decision in Stucky
prevented the City, rather than the State itself, from passing a
regulation of this kind, the court vacated the district court’s
judgment and remanded the case. As stated, the Supreme Court
subsequently vacated Stucky and this case based on Ours Garage and
remanded both cases to this court for further disposition.
PREEMPTION ANALYSIS
The remaining issue before this court is whether the specific
regulation in dispute, Chapter 48A, Section 48A-13(a)(7)(A)(xiii),
is a motor vehicle safety regulation saved from preemption.
Whether this conclusion is correct depends on the parameters of the
safety exception, an issue the Supreme Court expressly declined to
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answer in Ours Garage.2
The federal legislation preempts provisions by “a State [or]
political subdivision of a State . . . related to a price, route,
or service of any motor carrier . . . with respect to the
transportation of property.” 49 U.S.C. § 14501(c) (2000).
However, as an exception to this preemption directive, Congress
provides that the directive “shall not restrict the safety
regulatory authority of a State with respect to motor vehicles.”
Id. at § 14501(c)(2)(A).3
Cole contends that the regulation in this case does not
qualify as an exercise of “safety regulatory authority” under 49
U.S.C. § 14501(c)(2) when the plain language of the statute is
considered. Cole directs this court’s attention to a Texas court
2
Ours Garage, 122 S. Ct. at 2237 (“We express no
opinion, however, on the question whether Columbus’ particular
regulations, in whole or in part, qualify as exercises of ‘safety
regulatory authority’ or otherwise fall within § 14501(c)(2)(A)’s
compass.”).
3
The relevant text of the statute reads:
(c) Motor carriers of property.--
. . .
(2) Matters not covered.--Paragraph (1)--
(A) shall not restrict the safety regulatory authority
of a State with respect to motor vehicles, the
authority of a State to impose highway route controls
or limitations based on the size or weight of the motor
vehicle or the hazardous nature of the cargo, or the
authority of a State to regulate motor carriers with
regard to minimum amounts of financial responsibility
relating to insurance requirements and self-insurance
authorization . . . .
49 U.S.C. § 14501(c)(2)(A) (2000) (emphasis added).
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of appeals decision, Whitten v. Vehicle Removal Corp., 56 S.W.3d
293 (Tex. App. – Dallas 2001, pet. denied), decided before Ours
Garage, which holds that chapter 684 of the Texas Transportation
Code — providing a private cause of action against companies that
violate the state’s regulations governing towing operations — is
not a motor vehicle safety regulation excepted from federal
preemption. We decline to get into an extended discussion of
Whitten. It is enough to say that Whitten is premised on a
definition of “motor vehicle safety” in 49 U.S.C. § 30102(a)(8).
As the City points out, § 30102(a) contains the definitions for
Chapter 301, entitled “Motor Vehicle Safety,” of Title 49 of the
United States Code, as distinguished from the definitions for
Chapter 145, entitled “Federal-State Relations,” of Title 49, which
includes § 14501. In addition, the term “motor vehicle safety” is
obviously narrower than the term “safety regulatory authority of a
State with respect to motor vehicles” that was the subject of Ours
Garage and is the subject of this case.
Although the Supreme Court in Ours Garage did not elaborate on
the specific parameters of the exception under § 14501(c)(2)(A) for
motor vehicle safety regulations, it did opine on the congressional
purpose behind the statute. See Ours Garage, 122 S. Ct. at 2236
(stating that “Congress’ clear purpose in § 14501(c)(2)(A) is to
ensure [] its preemption of States’ economic authority over motor
carriers of property, § 14501(c)(1), ‘not restrict’ the preexisting
and traditional state police power over safety.”) (emphasis added).
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The Ours Garage Court anchored this interpretation to Congress’s
desire to leave for the states and local governments those
responsibilities regarding motor carriers that do not relate to the
slender congressional goal of addressing economic authority over
such carriers. To this end, it concluded that:
These declarations of deregulatory purpose [addressing
the economic authority of states over motor carriers],
however, do not justify interpreting through a
deregulatory prism "aspects of the State regulatory
process" that Congress determined should not be
preempted.
A congressional decision to enact both a general
policy that furthers a particular goal and a specific
exception that might tend against that goal does not
invariably call for the narrowest possible construction
of the exception. Such a construction is surely
resistible here, for § 14501(c)(1)’s preemption rule and
§ 14501(c)(2)(A)’s safety exception to it do not
necessarily conflict. The problem to which the
congressional conferees attended was "[s]tate economic
regulation"; the exemption in question is for state
safety regulation. Corroboratively, the measure’s
legislative history shows that the deregulatory aim of
the legislation had been endorsed by a key interest group
– the American Trucking Association – subject to "some
conditions that would allow regulatory protection to
continue for non-economic factors, such as ... insurance
[and] safety."
Id. (emphasis in original). Indeed, a survey of the legislative
history reveals that Congress intended to divorce the motor carrier
industry from state and local economic regulation in order to
provide motor carriers such as United Parcel Service the same
competitive advantages enjoyed by air carriers like Federal
Express. See, e.g., H.R. CONF. REP. No. 103-677, at 87, reprinted
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in 1994 U.S.C.C.A.N. at 1759 (“State economic regulation of motor
carrier operations causes significant inefficiencies, increased
costs, reduction of competition, inhibition of innovation and
technology and curtails the expansion of markets . . . The sheer
diversity of these regulatory schemes is a huge problem for
national and regional carriers attempting to conduct a standard way
of doing business.”).
Against this backdrop, the court declines to elasticize
Congress’s economic goal by narrowly interpreting “safety
regulatory authority of a State with respect to motor vehicles.”
Our view finds support in Ace Auto Body & Towing, Ltd. v. City of
New York, 171 F.3d 765, 769 (2d Cir. 1999), in which the Second
Circuit addressed whether certain New York City towing laws were
saved from preemption under § 14501(c)(2)(A). At issue was the
requirement that tow truck businesses and operators employed by
them be licensed by the New York City Department of Consumer
Affairs to engage in towing. To qualify for such a license,
operators had to be at least eighteen years of age, possess an
appropriate driver’s license and lack traffic or criminal
convictions. Id. The Second Circuit held that for these
regulations to escape federal preemption under the safety
exception, “it is enough, in light of the text and history of
§ 14501(c), that the [] provisions are reasonably related to the
safety aspects of towing disabled vehicles and that the economic
burdens thereby imposed are only incidental.” Id. at 777. With
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respect to the city’s criminal history regulation (among others),
the court held that “[m]ost of these requirements are so directly
related to safety or financial responsibility and impose so
peripheral and incidental an economic burden that no detailed
analysis is necessary to conclude that they fall within the
§ 14501(c)(2)(A) exemptions.” Id. at 776. See also Tocher v. City
of Santa Ana, 219 F.3d 1040, 1051 (9th Cir. 2000) (pre-Ours Garage
case holding that sections of the California Vehicle Code are
exempt from preemption because “[e]ach of these provisions is
designed to make the towing and removal of vehicles safer by
insuring that only professionals tow vehicles and that the removal
does not endanger the general public or the owner of the property
where the vehicle was removed”), cert. denied, 531 U.S. 1146
(2001).
The Dallas City Council passed the Chapter 48A amendment to
address safety concerns “with respect to motor vehicles,” as
expressly allowed by the exception for motor vehicle safety
regulations. The ordinance delineates several safety concerns that
underlie the regulations found in Chapter 48A. Chapter 48A’s
stated policy is to protect “the public interest as it relates to
the parking of vehicles on private property and to the removal of
those vehicles to vehicle storage facilities without the consent of
the vehicle owners or operators.” The specific criminal history
requirement at issue is designed to curtail confrontation between
truck operators and non-consenting vehicle owners. The ordinance
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states that:
[T]he city council believes that the proposed safety-
related regulations for nonconsensual tows would promote
the public safety of both visitors and residents of the
city of Dallas by contributing to a decrease in the
potential for confrontation and violence between vehicle
owners and the persons who tow their vehicles; a decrease
in bodily injury and property damage caused by faulty tow
truck vehicles and equipment or by incompetent,
negligent, and criminal actions of tow truck operators
and drivers . . . .
That the criminal history regulation has, at its core, concern for
safety is manifest. It is difficult to imagine a regulation with
a more direct protective nexus or peripheral economic burden.
Moreover, despite providing this court with supplemental briefing,
Cole has raised no argument pointing the court to some hidden
pretextual economic goal behind the provision.4
CONCLUSION
The disputed regulation, Section 48A-13(a)(7)(A)(xiii), is a
motor vehicle safety regulation under 49 U.S.C. § 14501(c)(2)(A).
The final judgment of the district court is AFFIRMED.
4
The district court’s holding in this case covered all
of Chapter 48A. Our opinion is limited to the specific provision
of Chapter 48A that created Cole’s problem, specifically Chapter
48A, § 48A-13(a)(7)(A)(xiii).
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