Loyal Tire & Auto Center, Inc. v. Town Of WoodburyLoyal Tire & Auto Center, Inc. v. Town Of Woodbury
William G. Kelly (Frank J. Ciano and Robert Varga, of counsel), Goldberg Segalla, LLP, White Plains, NY, for Defendant-Appellant-Cross-Appellee.
SOTOMAYOR, Circuit Judge.
Defendant-appellant-cross-appellee the Town of Woodbury (“Woodbury“) appeals from a judgment of the United States District Court for the Southern District of New York (Brieant, J.), entered on February 8, 2005. Seeking damages, a declaratory judgment, and injunctive relief, plaintiff-appellеe-cross-appellant Loyal Tire & Auto Center, Inc. (“Loyal Tire“) challenged a provision of Woodbury‘s municipal towing law that requires all tow companies licensed by Woodbury to maintain a tow yard within one mile of the town police department. Loyal Tire argued that the law is preempted by
Michael Hagopian, the former president of Loyal Service Center, Inc. (“Loyal Service“) and current owner of Loyal Tire, first applied in 1987 for Loyal Service to be placed on the list of tow companies, known as the “rotating call list,” that the Woodbury Police Department uses to contact tow companies when their services are needed.1 Loyal Service commenced litigation in state court after Woodbury refused to consider its application, but withdrew the litigation when Woodbury adopted a law in 1988 that required, as a prerequisite for obtaining a license to be on the list, that tow companies maintain a tow yard within one-half of a mile of the town line. Loyal Service was thereafter granted a license and began participating in the rotational towing list.
In 1989, Hagopian moved his company to the Village of Harriman and began to operate under the name Loyal Tire. Loyal Tire is locаted within one-half of a mile of the Woodbury town line and was licensed to participate in the rotational tow list. Loyal Tire contends, however, that the police department enforced the 1988 law, and its subsequent iterations, in a discriminatory manner and that many of these acts of discriminatory enforcement occurred between June 2000 and June 2003, when Loyal Tire filed the complaint in this action. Loyal Tire complains principally of two purported acts of discriminatory enforcement. First, Loyal Tire alleges that Kwiatkowski refused to renew its towing permit in 1995 until it complied with regulations requiring a fence around its impoundment facility, while a local operator who maintained a tow yard within the town limits was permitted to continue operating between 1999 and 2001 notwithstanding its non-compliance with the same regulation. Second, the police department purpоrtedly skipped Loyal Tire‘s turn on the rotating call list each time Loyal Tire had responded to an owner-initiated tow request or a call from the Village of Harriman‘s rotational towing list. Local operators, however, were not penalized even when they refused tow requests on certain occasions.
Loyal Tire attributes much of Woodbury‘s purported ill-will against it to an incident involving town board member Holly Gubernick Borzacchiello‘s father, who died in an automobile accident on November 2, 2000. After Loyal Tire towed the car from the scene of the accident, Kwiatkowski wrote a letter to the town board, dated November 29, 2000, in which he complained about several aspects of Loyal Tire‘s services towing the wrecked car. Kwiatkowski complained that Loyal Tire had overcharged for its services and that it had insisted that the family pay cash fоr its towing services. Kwiatkowski concluded his letter by referencing the municipal law requiring all tows requested by the police department to be performed by a company with a facility within one-half of a mile of the town line.
The town board convened less than one week later, on December 7, 2000, to discuss draft amendments, proposed in mid-November, to the municipal towing law. After one of the board members read Kwiatkowski‘s letter, the police chief expressed his discontent with the way Loyal Tire conducted business. Several board members also commented negatively on Loyal Tire and the November 2 incident.
Apparently no further public action was taken on the draft amendments to the towing law for a number of months. By letter dated July 3, 2001, Loyal Tire inquired about its status and complained that the police department had exhibited favoritism in its management of the rotating tow list. At a town board meeting on December 17, 2001, several board members stated that complaints had been made against Loyal Tire, but that no complaints had been made against other towers on the town‘s list. No definitive action was taken, however, with respect to the proposed amendments to the municipal towing law.
At a town board meeting on April 29, 2002, several board members expressed the view that towing permits should be limited to businesses located in Woodbury. After the town attorney expressed uncertainty about the legality of such a policy, Kwiatkowski indicated that business should be kept within the community, and a board member stated that most complaints about tow companies had been directed against towing businesses located in other communities. At a May 13, 2002 meeting, the town attorney informed the board that it could adopt a law requiring that a tow company liсensed by the town maintain an impound facility within a given proximity to the town line, but that it could not limit the availability of licenses to those applicants with a tow yard in town. Notwithstanding this advice, the town attorney subsequently drafted legislation requiring, inter alia, that a tower must maintain a facility within a one-mile radius of the Woodbury police station in order to receive a license to be placed on the town‘s rotating tow list.
Loyal Tire commenced this action in New York Supreme Court, Orange County in June 2003. Loyal Tire‘s complaint alleged, inter alia, that Woodbury‘s towing law was preempted by
While this litigation was pending, Kwiatkowski informed the town board of several safety-related justifications for the provision of the towing law requiring the maintenance of a tow yard within a one-mile radius of the police department. In a letter dated July 30, 2003, bearing the subjeсt line “Loyal Tire & Auto vs. Town of Woodbury, Defense Issues,” he identified two safety concerns: (1) vehicle owners who walk first to the police station to retrieve their cars could then walk in relative safety on sidewalks within the one-mile radius to a tow yard; and (2) using tow companies located outside of Woodbury would require the town to send police officers outside of the jurisdiction and dilute the police presence in Woodbury.
After Loyal Tire discontinued its case against all the individual defendants, except for Supervisor Conroy and Chief Kwiatkowski, the remaining defendants moved for summary judgment. By order dated January 14, 2004, the district court denied defendants’ motion and granted summary judgment, sua sponte, to Loyal Tire. The district court ruled that New York state had not delegated to towns its safety regulatory authority over local tow-truck operations, and held, in the alternative, that the geographicаl limitation in the municipal towing law did not relate to safety. Having concluded that the towing law is preempted by
On аppeal, Woodbury contends that New York state delegated to towns its safety regulatory authority over local tow-truck operations and that the municipal law at issue in this case is rationally related to safety. Loyal Tire cross-appeals and argues that the district court erred by declining to reach its Commerce Clause claim, dismissing its equal protection and due process claims, and concluding that the remaining individual defendants, Conroy and Kwiatkowski, are immune from suit.
DISCUSSION
Woodbury‘s municipal towing law, adopted in January 2003, includes a statement of legislative intent in § 283-1 providing that “regulations for the prompt and safe removal of disabled, abandoned, and impounded vehicles from public roadways within the Town is necessary for the public health, safety and general welfare of the residents and traveling public within the Town.” The law includes a number of regulations, one of whiсh is pertinent to this appeal. Section 283-7(A)(4) provides that a towing license is available only to applicants who “maintain[] an impound/storage facility within a one-mile radius of the Town of Woodbury Police Department.” A towing license is necessary in order to be placed on the town‘s rotating call list.
The Interstate Commerce Act, as amended by the Federal Aviation Administration Authorization Act of 1994 and the ICC Termination Act of 1995, generally preempts state and local regulation “related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.”
A.
The parties rely on various state statutes in arguing that New York state has or has not delegated to towns its safety regulatory authority over local tow-truck operations. We hold that it has.
Both parties invoke the New York Vehicle and Traffic Law (“VTL“). Sеction 1600 of the VTL provides that state law with respect to vehicles and traffic “shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any local law . . . in conflict with the provisions of this chapter unless expressly authorized herein.”
Intеrpreting these provisions of the VTL, the district court concluded that New York state has not delegated to towns its authority to establish safety regulations covering intrastate motor carriers of property, such as towers. The district court found it significant that
[t]owing and pushing of vehicles, including, but not limited to, the establishment of minimum insurance levels for and the licensing and regulation of persons engaged in the business of towing, and the fixing of maximum charges to be made by such persons for the towing and storage of disabled vehicles.
The district court reasoned that the absence of a parallel provision in
Loyal Tire relies primarily on the VTL and reiterates the argument accepted by the district court. Woodbury relies most heavily on
Nothing in the VTL, however, limits a town‘s authority to regulate businesses that happen to be motor carriers. As observed by the state court in Richard‘s Service Station, there is a significant distinction between requiring a tow truck operator to obtain a license to operate a tow truck in a town, which is prohibited by
Several decisions of New York state courts support this view. At least one New York state court has explicitly stated that towns have the authority to regulate and license the towing business, relying on the Municipal Home Rule Law and the Town Law. See Richard‘s Serv. Station, 361 N.Y.S.2d at 504. The decision of the New York Court of Appeals in Wharram v. City of Utica, 56 N.Y.2d 733, 451 N.Y.S.2d 728, 436 N.E.2d 1331 (1982) assumed that towns have the authority to regulate towing. See Id. at 734-35 (holding that a city ordinance requiring tow companies to maintain their places of business within the city limits violates General Municipal Law § 80); see also Dun-Rite Towing, Inc. v. Village of Tarrytown, 215 A.D.2d 654, 628 N.Y.S.2d 326, 327 (2d Dep‘t 1995) (stating that a municipal policy requiring tow comрanies to maintain tow yards within one-half of a mile of the village‘s borders does not violate General Municipal Law § 80). None of these decisions suggests that the VTL limits towns’ safety regulatory authority over tow-truck operations other than by precluding towns from enacting traffic laws applicable to tow-truck operators that conflict with the VTL.
Because the Vehicle and Traffic Law does not speak to the authority of cities, villages, and towns to regulate the business and safety aspects of towing, we see nothing in the statute that limits the delegation of authority to towns via the Municipal Home Rule Law and the Town Law to regulate businesses in the interest of public safety. We hold that New York state has delegated its safety regulatory authority over local tow-truck operations to towns such as Woodbury and turn to consider whether the municipal regulation at issue in this cаse falls within the safety exception to the preemption provision of
B.
In City of Columbus v. Ours Garage and Wrecker Service, the Supreme Court emphasized that
Woodbury cites the statement of legislative intent in § 283-1 of its municipal towing law and argues that this provision indicates that Woodbury adopted the “one-mile radius” rule as an exercise of its safety regulatory authority over tow-truck operations. Both the Ninth and the Eleventh Circuits have recognized the importance of legislative intent in determining whether a regulation is genuinely responsive to safety. See Tillison, 406 F.3d at 1129; Galactic Towing, Inc. v. City of Miami Beach, 341 F.3d 1249, 1253 (11th Cir.2003). In Tillison, the Ninth Circuit found it significant that, after a federal district court ruled that a particular statutory provision was not related to safety, the California legislature amended the statute to clarify that the specific provision was, in fact, safety related. 406 F.3d at 1129-30. In Galactic Towing, the Eleventh Circuit concluded that a general statement of legislative intent in a city towing ordinance indicating that the ordinance as a whole was in the interest of public safety constituted a significant articulation of a public safety purpose. 341 F.3d at 1253. Here, § 283-1 of Woodbury‘s towing law is a general, prefatory provision which states that the towing regulations as a whole are in the interest of public safety. We accord deference to this general expression of legislative intent, but this expression cannot be given controlling weight in light of the Supreme Court‘s directive to determine whether the legislation is genuinely responsive to safety concerns.
We must review also the extant legislative history of Woodbury‘s municipal towing law. Although Woodbury has produced the affidavits of several board members indicating that the municipal towing law was adopted for public safety reasons, no contemporaneous evidence of legislative intent in the record indicates that the geographic limitation of § 283-7(A)(4) was adopted аs an exercise of safety regulatory authority. To the contrary, the minutes from town meetings between December 2000 and January 2003 contain no discussion whatsoever of safety concerns, but instead are replete with expressions of dissatisfaction with services provided by Loyal Tire and a desire to exclude Loyal Tire, as well as other out-of-town businesses, from the town‘s rotating tow list. The minutes indicate that board members, with the town attorney, sought to limit eligibility for a towing license to companies located in Woodbury without violating state or federal law for reasons having nothing to do with safety. We see no evidence in the legislative history that the “one-mile radius” rule was actually intended as a response to safety concerns. The legislative history suggests not that the municipal towing law was genuinely responsive to safety, but that the town board was motivated to exclude Loyal Tire from Woodbury‘s rotating call list because the board was dissatisfied with Loyal Tire‘s services.
In addition to considering the expression of legislative intent in the statute itself and the legislative history, we must assess also the three specific ways in which Woodbury argues that its “one-mile radius” rule is genuinely responsive to safety concerns. First, Woodbury contends that the rule will reduce the distance of dangerous tows. Second, Woodbury claims that police officers are often required to go to tow yards on police business and that the rule requiring tow yards to be within a one-mile radius of the police station ensures that the police presence in Woodbury will not be diluted by requiring officers to leave town to attend to these matters. Third, Woodbury argues that a person who walks to the police station before retrieving his or her car from a tow yard will be able to walk in relativе safety on sidewalks within the designated area; by contrast, it would be dangerous to walk beyond the one-mile perimeter where there apparently are no sidewalks. We address each of these purported safety justifications in turn.
Woodbury‘s second argument, that diluted police presence is a genuine safety-related justification for the law, is not supported by record evidence. If police are required to leave the town limits to inspect towed cars at tow yards, the argument goes, fewer police will remain in Woodbury to respond to emergencies and other police business. In Galactic Towing, Inc. v. City of Miami Beach, 274 F. Supp. 2d 1315 (S.D.Fla.2002), the district court found a similar argument persuasive. Id. at 1322 (“Causing the police officers to go out of jurisdiction for the purpose of dealing with towing issues lеssens police presence within Miami Beach and adversely [a]ffects police response time and, thereby, adversely impacts the safety of Miami Beach‘s residents and visitors.“). We express no view of this rationale as a general matter, but we do not find it persuasive on the facts of this case. Kwiatkowski‘s deposition testimony indicated that Woodbury police officers frequently cooperate with the police department in the Village of Harriman, where Loyal Tire is located, and frequently assist the Harriman police in responding to accidents and in investigating crimes. Record evidence thus indicates that Woodbury police officers regularly work in the very geographic area the town argues they should not be required to visit on towing matters. The record is devoid of any evidence, however, establishing the frequency with which police officers must go to tow yards on official business or the amount of time an inspection at a tow yard typically requires. In the absence of record evidence suggesting that the frequency or duration of police officers’ visits to tow yards is in some way more meaningful or substantial than the work they frequently perform in the Village of Harriman, it is impossible to conclude that Woodbury enacted the law for genuine safety reasons.5 In sum, in light of the fact that Woodbury police frequent Harriman for work purposes, a reasonable juror could not conclude that requiring police officers periodically to leave the one-mile radius to attend to towing matters would divert them from their duties in an appreciable way.
Finally, Woodbury contends that sidewalks exist within a one-mile radius of the police department, and largely not outside the radius, and that, as a result, people walking from the police department to retrieve their cars can walk in relative safety to tow yards within that one-mile perimeter. There is no record evidence, however, establishing whether people must first go to the police station before retrieving a towed automobile in all cases or even whether there are some limited circumstances in which they must do so. Moreover, the fact that Kwiatkowski could remember only one person who had ever walked from the station to retrieve a towed car and that licenses could be conditioned on the requirement that a tower transport walkers from the police station to its tow yard — an offer Loyal Tire made — makes it difficult to conclude that the law was genuinely responsive to concerns about the safety of walkers. The evidence Woodbury has presented in support of this safety-related justification is so thin and post-hoc in nature, especially when considered in light of the extensive evidence of Woodbury‘s discriminatory motivation, that no reasonable factfinder could believe that § 283-7(A)(4) was enacted in response to this concern.
Viewing the evidence in the light most favorable to Woodbury, and drawing all reasonable inferences in its favor, a reasonable factfinder could not conclude that the “one-mile radius” rule is genuinely responsive to safety concerns. The general, prefatory statement of legislative intent in § 283-1 is contradicted by the legislative history, which indicates that Woodbury enacted § 283-7(A)(4) to exclude Loyal Tire, and other out-of-town businesses, from its rotating call list. Moreover, Woodbury‘s safety-related justifications for the rule either wither under scrutiny as a matter of logic or lack basis in fact. We therefore find no error in the district court‘s conclusion that § 283-7(A)(4) of Woodbury‘s municipal towing law is not genuinely responsive to safety concerns and is thus precluded by
After the district court held that Woodbury‘s municipal towing law is preempted by
A.
The district court awarded attorneys’ fees to Loyal Tire pursuant to
As a preliminary matter, we note that Loyal Tire‘s right to bring an action seeking declaratory and injunctive relief from municipal regulation on the ground that federal law preempts that regulation is undisputed. See Ours Garage, 536 U.S. at 430-31; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983); Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 321 (2d Cir. 2005). We have previously explained that “[a] claim under the Supremacy Clause that a federal law preempts a state regulation is distinct from a claim for enforcement of that federal law” under
The Supreme Court recently clarified, in Gonzaga University v. Doe, 536 U.S. 273 (2002), the inquiry that courts must undertake to determine whether a statute creates rights enforceable under
Applying these factors, we conclude that
Our pre-Gonzaga precedent strongly supports this conclusion. In Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir.1986), we held that a parallel provision of the Airline Deregulation Act, codified at
B.
The court below did not address Loyal Tire‘s claim under the dormant Commerce Clause. The district court determined that it need not reach Loyal Tire‘s Commerce Clause claim given its conclusion that Woodbury‘s municipal towing law is preempted by
In its complaint, Loyal Tire sought both injunctive relief barring further enforcement of Woodbury‘s towing law and damages for Woodbury‘s past violations of Loyal Tire‘s rights. The district court‘s grant of prospective injunctive relief did not fully resolve Loyal Tire‘s claims and thus did not render consideration of its dormant Commerce Clause claim under
We affirm the distriсt court‘s dismissal of Loyal Tire‘s due process and equal protection claims. We reject Loyal Tire‘s equal protection claim because it was not pleaded or properly advanced before the district court. In arguing that the district court erroneously dismissed its due process claim, Loyal Tire relies solely on Cowan v. Corley, 814 F.2d 223 (5th Cir. 1987), in which the plaintiff claimed that he was deprived of his opportunity to earn a livelihood by being summarily excluded from a county wrecker association after having complained about the association‘s method of assigning work. Loyal Tire contends that its due process rights were violated by the purported discriminatory enforcement of Woodbury‘s pre-2003 municipal towing law and when the town suspended its towing license, purportedly without proper notice, in 1995. The former claim involves discriminatory treatment, not the deprivation of a property or liberty interest on the theory of Cowan, and we therefore reject it. We reject the latter claim as time-barred. See Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004) (noting that we borrow New York‘s three-year statute of limitations applicable to personal-injury actions when considering the timeliness of claims under
III.
Loyal Tire alleged in the fifth cause of action of its complaint that the town board, including Supervisor Conroy, and Chief Kwiatkowski had conspired to violate its rights under the Constitution and laws of the United States. The district court dismissed this claim against Conroy on the basis that she is entitled to immunity for her role in enacting Woodbury‘s municipal towing law in 2003 and against Kwiatkowski on the basis that he is entitled to absolute immunity under the First Amendment or, alternatively, to qualified immunity for expressing his support of the draft municipal law. On appeal, Loyal Tire contends that Conroy and Kwiatkowski face liability not for their participation in legislative deliberations, but for their discriminatory enforcement of Woodbury‘s prior towing law.
Loyal Tire has conceded that Conroy and Kwiatkowski have absolute immunity from personal liability for their participation in the legislative process. With respect to Loyal Tire‘s contention on appeal that Kwiatkowski is liable for discriminatorily enforcing Woodbury‘s pre-2003 towing ordinance and that Conroy bears supervisory liability for that discriminatory enforcement, Loyal Tire failed to plead that claim in its complaint. Loyal Tire specifically alleged in its fifth cause of action that Kwiatkowski conspired with the town board to violate its rights, and its theory on appeal is not consistent with its pleading. We thus reject Loyal Tire‘s claim that the district court erred in dismissing its fifth cause of action. We express no view, however, as to whether Conroy or Kwiatkowski is entitled to qualified immunity on Loyal Tire‘s claim under the dormant Commerce Clause given that we remand that claim to be considered by the district court in the first instance.
CONCLUSION
For the foregoing reasons, we AFFIRM so much of the district court‘s judgment as granted summary judgment to Loyal Tire on its preemption claim under