HomeMy WebLinkAbout13 ORDINANCE - TOW TRUCK OPER'S 11-05-01AGENDA REPORT
NO. 13
11-5-01
270-55
TO'
FROM'
SUBJECT:
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
CITY ATTORNEY
REPEAL OF TUSTIN CITY CODE SECTIONS REGULATING
TOW TRUCK OPERATORS
SUMMARY:
A decision of the Federal Ninth Circuit prevents the City from enforcing its tow truck
operation regulations, but allows the City to contract for official police tows. This
ordinance repeals Tustin City Code §§3431 - 3436 regarding tow truck operator
regulations and authorizes the Police Chief to enter into new Official Police Towing &
Storage Service ("OPTS") agreements with qualified tow truck service providers.
RECOMMENDATION'
Introduce ordinance repealing Tustin City Code §§3431 - 3436.
FISCAL IMPACT:
None.
BACKGROUND'
Last year, the U.S. Court of Appeals for the Ninth Circuit held that city ordinances
regulating tow truck companies, and related provisions of the California Vehicle Code,
are preempted by federal law and are, therefore, unenforceable. Tocher v. City of
Santa Ana, et al., (9th Cir. 2000) 219 F.3d 1040. Hence, the regulations on tow truck
companies that are currently contained in Tustin City Code §3431, et seq., are no
longer viable regulations.
However, with respect to the Police Department's rotational tow list for official police
tows, the Court held that contractual agreements between a city and a towing service,
which regulate and restrict the provision of towing services solely with respect to the
relationship between the city and towing companies, fall under the market-participant
exception to the federal preemption doctrine. As such, the Court held that contractual
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agreements between a city and towing companies for the provision of rotational towing
services to police departments are not preempted.
In Tocher, the Court stated that "[u]nder these circumstances, the rotational tow list is
the classic example of a municipality acting as a market participant; the City is merely
establishing rules and regulations to guide the formation of contracts for towing services
provided exclusively to the City." Therefore, a city may contract for rotational towing
services for its police department and may include contractual terms and conditions
establishing specifications that will ensure the efficient performance of the contract with
the city. for pOlice tows. The Court added that "It]he creation of a rotational tow list
allows a city to contract with the party who is able to deliver the most inexpensive,
efficient, and reliable towing services by acting as any other private consumer would in
a competitive market."
It is our conclusion that while the City may continue to enter into agreements with police
tow providers, the City cannot enforce any rules or regulations, including the tow truck
permit process, set forth in existing Tustin City Code §3431, et seq. Therefore, it is our
recommendation that such Code provisions be repealed.
In light of the Tocher decision, we have revised the City's Official Police Towing and
Storage Service ("OPTS") agreement to include most of the requirements set forth in
the City's code. Under the newly revised OPTS agreement, the City's regulations and
restrictions will be provided for contractually and shall only apply to the relationship
between the City of Tustin and the tow companies selected by the Police Department
for official police tows.
This ordinance accomplishes the following' .a) repeals Tustin City Code §3431, et seq.,
regarding tow truck regulations; b) terminates all of the City's existing OPTS contracts
with tow truck service providers; and, c) authorizes the Police Chief, on behalf of the
City, to enter into new OPTS agreements with qualified tow truck service providers,
subject to' approval by the City Attorney.
ATTACHMENTS'
Ordinance
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1 ORDINANCE NO. 1249
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, REPEALING SECTIONS 3431 - 3436
OF CHAPTER 4, PART 3 OF THE TUSTIN CITY CODE
RELATING TO TOW TRUCKS
The City Council of the City of Tustin hereby ordains as follows:
SECTION 1. Chapter 4, Part 3, Sections 3431 through 3436 of the Tustin City Code is
hereby repealed in its entirety.
SECTION 2. Upon the effective date of this Ordinance, all of the City's existing Official
Police Towing & Storage Service ("OPTS") agreements with tow truck service providers are
hereby terminated.
SECTION 3. Upon the effective date of this Ordinance, the Police Chief, on behalf of
the City of Tustin, is hereby authorized to enter into new OPTS agreements with qualified tow
truck service providers, subject to approval by the City Attorney.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of
Tustin on this day of ,2001.
TRACY WILLS WORLEY, MAYOR
PAMELA STOKER, City Clerk