City’s towing ordinance not preempted since it still centers on public safety

Houston Professional Towing Assn. v. City of Houston No. 15-20117 (5th Cir. February 3, 2016).

Houston Professional Towing Association (“HPTA”) brings its third lawsuit challenging SafeClear, the freeway towing program run by the City of Houston. In 2004, the city contracted with eleven towing companies to patrol various freeways around the clock and to remove wrecked and disabled vehicles. In 2005, HPTA, which represents tow operators in the Houston area (none of which was awarded a SafeClear contract), sued in federal court asserting the ordinance was preempted by federal law.  The City amended the ordinance to bring it into compliance with federal regulations on motor carriers. In 2006, HPTA sued again asserting the ordinance infringed upon commercial speech. Federal courts issued an opinion the ordinance was not preempted. In May 2011, the City again amended the SafeClear program to required vehicle owners to pay for the SafeClear tows of vehicles stalled on the shoulder; previously the city had paid for those tows.  HPTA brought this suit saying the change was preempted. The trial court issued a summary judgment in the City’s favor and HPTA appealed.

Federal law 49 U.S.C. §14501 prohibits a state from regulating the price, quote, or services of certain motor carriers transporting property, but has a public safety exception.  This exception for public safety is what allowed the prior suits to be dismissed in the City’s favor and sustain the ordinance.  In this third suit, the change in who pays does not affect the public safety elements of the ordinance. No significant changes to the ordinance occurred which would take it outside the realm of the public safety exception.  To adopt HPTA’s argument would mean that if a government program is modified to cut costs, it is impossible for it to fulfill its original purpose. “Although the goal of the 2011 amendments may have been to cut costs (and to make SafeClear fiscally sustainable over the long term), there is no doubt that the continuing purpose of the program is to promote safety by expeditiously clearing stalled and wrecked vehicles.”  After going through the various claims raised by HPTA, the 5th Circuit affirmed the order granting the City’s summary judgment.

If you would like to read this opinion click here. Panel: JONES and SMITH, Circuit Judges, and FITZWATER, District Judge.  Opinion by Judge Smith.