Cal. Tow Truck Ass'n v. City & Cnty. of San Francisco

• Citation: 693 F.3d 847
• Decision Date: 27 August 2012
• Docket Number: Nos. 11–15040,11–15041.,s. 11–15040
• Parties: CALIFORNIA TOW TRUCK ASSOCIATION, Plaintiff–Appellant–Cross–Appellee, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant–Appellee–Cross–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

693 F.3d 847

2012 Daily Journal D.A.R. 11,941

CALIFORNIA TOW TRUCK ASSOCIATION, Plaintiff–Appellant–Cross–Appellee,

v.CITY AND COUNTY OF SAN FRANCISCO, Defendant–Appellee–Cross–Appellant.

Nos. 11–15040, 11–15041.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 17, 2012.

Filed Aug. 27, 2012.

Patrick J. Whalen, Law Offices of Brooks Ellison, Sacramento, CA, for plaintiff-appellant-cross-appellee California Tow Truck Association.

Vince Chhabria, Deputy City Attorney, San Francisco, CA, for defendant-appellee-cross-appellant City and County of San Francisco.

Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. 3:10–cv–03184–CRB.

Before: RAYMOND C. FISHER and SANDRA S. IKUTA, Circuit Judges, and J. MICHAEL SEABRIGHT,^* District Judge.

OPINION

SEABRIGHT, District Judge:

In two comprehensive ordinances, the City and County of San Francisco requires tow truck drivers to obtain permits to operate in San Francisco, and towing firms to obtain permits to conduct business within San Francisco. The ordinances include numerous conditions and prerequisites for obtaining or maintaining towing permits. The California Tow Truck Association (“CTTA”) filed this action seeking to invalidate the two ordinances, primarily arguing that the entire “permit scheme” (as it calls both ordinances) is preempted by federal law. The district court upheld the permit scheme for “non-consensual” towing, but enjoined enforcement against those doing exclusively “consensual” towing and against tow truck drivers simply “passing through” San Francisco. We now face cross-appeals.

The CTTA's challenge to the entire permit scheme necessarily encompasses all of the permit scheme's components—each of which may (or may not) be preempted. The district court analyzed the permit scheme in the way the parties presented the scheme, as a whole, but without specifically addressing its individual provisions. In so doing, however, the district court ran afoul of American Trucking Associations v. City of Los Angeles, 559 F.3d 1046 (9th Cir.2009), which requires “examining the specific provisions” of the permit scheme. Id. at 1057. Accordingly, we vacate and remand for further proceedings.

I. BACKGROUND

A. The Permit System

Article 30 of the San Francisco Police Code regulates “tow car drivers.” See S.F., Cal., Police Code art. 30, §§ 3000–13. Similarly, Article 30.1 of the S.F. Police Code regulates “tow car firms.” See id. art. 30.1, §§ 3050–65. ¹ Together, Articles 30 and 30.1 set forth a comprehensive regulatory regime requiring tow truck drivers and towing firms to obtain permits to operate and conduct business in San Francisco.² Together, we refer to Articles 30 and 30.1 as the “Permit System.”

1. Article 30—Permit Requirements for Tow Truck Drivers

Under Article 30, “[n]o person shall drive or operate a tow car within the City and County of San Francisco without first obtaining a permit from the Chief of Police.” S.F. Police Code § 3000. To obtain a permit, tow truck drivers provide identifying information ( e.g., name, residence, height, weight, birth date, employer, drivers license number), disclose any criminal arrests, and give “[s]uch other information ... reasonably necessary ... to arrive at a fair determination as to whether the terms of the ordinance have been complied with.” Id. § 3002. Applicants are fingerprinted, provide passport-sized photographs, and pay a filing fee. Id. § 3003. They must also provide a letter from an employer. Id.

Upon receipt of an application, the Chief of Police is to investigate “without unnecessary delay,” and issue a permit, unless the applicant:

(a) Within four years prior to the date of application, has been convicted of burglary, robbery, theft, receipt of stolen property, breaking or removing parts from a vehicle, malicious mischief to a vehicle[,] unlawful use or tampering by bailee of a vehicle, or altering a vehicle identification number; or

(b) Within four years prior to the date of application, has acted in violation of the criminal statutes referred to in Subsection (a) above; or

(c) Has intentionally falsified any statement contained in his application.

Id. § 3004. The tow truck driver must have the permit “at all times while driving or operating” a tow truck, and show it on demand to any peace officer. Id. § 3007. A permit lasts for a year, and is renewable annually upon payment of the annual fee.³Id. § 3008. It can be revoked if, after a hearing, the Chief of Police “finds that grounds exist which would have constituted just cause for refusal to issue such permit.” Id. § 3011. “Violation of Sections 3000 [driving or operating a tow truck within San Francisco without a permit] or 3007 [requiring possession of a permit while driving or operating a tow car] ... shall be a misdemeanor, punishable by a fine not to exceed $500, or by imprisonment in the County Jail for a term of not more than six months....” Id. § 3012. Article 30 also contains a severability clause, indicating that if any part of it is declared unconstitutional or invalid, such a declaration does not affect the validity of the remaining portions. Id. § 3013.⁴

2. Article 30. 1—Permit Requirements for Towing Firms

Similar to Article 30, Article 30.1 requires a “tow car firm” to register and obtain a permit to “engage in or conduct business as a tow car firm within the City and County of San Francisco.” Id. § 3050. Originally enacted in 1997, it defines a “tow car firm” or “towing firm” as “[a]ny person, firm, partnership, association, corporation, or any other group or combination acting as a unit, excepting [certain governmental entities], engaged in the business of transporting, removing, or storage of motor vehicles, including the owner/operator of any tow car as herein defined.” Id. § 3051(1).

An applicant ⁵ provides the police department identifying information such as name, residence, telephone number, and driver's license number, as well as the businesses' names and addresses. Id. § 3052(1) & (2). The application must also provide specific information ( e.g., the license plate number, year, make, model, and color) for each tow truck to be operated by the business. Id. § 3052(3). It must describe the applicant's business plan and proposed services, including days and hours of operation, storage locations of towed vehicles, and a system for handling complaints that is acceptable to the Chief of Police. Id. § 3052(4). It must also disclose the firm's tow truck drivers and permit numbers, and provide evidence of a minimum level of insurance. Id. § 3052(5) & (6). Further, an applicant must disclose “all crimes of which the applicant has been convicted, plead guilty, or plead no contest,” id. § 3052(7), and must submit a complete set of fingerprints taken by the San Francisco Police Department, fingerprinting and filing fees, and two recent color photographs, see id. § 3053.

Upon application, tow firm permits are granted unless the Chief of Police finds that:

(1) [The] [a]pplicant does not possess or cannot obtain the minimum amount of bodily injury and/or property damage insurance as required by the Chief of Police rules; or

(2) The applicant does not possess the requisite tow car equipment or facilities reasonably necessary to operate a tow car business in such a manner as to adequately protect vehicles of the public that are towed and stored from damage or theft; or

(3) The applicant has been convicted of theft, petty theft, theft of a vehicle, breaking or removing vehicle parts, malicious mischief to vehicle, check fraud, credit card fraud, driving under the influence of alcohol or drugs, vehicular manslaughter, reckless driving bodily injury, any sex offense which would cause the applicant to be registered as a sex offender, any unlawful carrying, use or possession of a firearm, any assault or battery (misdemeanor or felony), kidnapping, arson, extortion, murder, possession of alcoholic beverage, opened alcohol container, marijuana, or narcotic drug while driving, bailee tampering; or

(4) The applicant has knowingly falsified any statement contained in his application, or has knowingly omitted information in his application which could result in a denial of the permit; or

(5) The applicant does not possess or cannot obtain an FDIC-authorized bank credit card machine.

Id. § 3054. Likewise, the Chief of Police may suspend or revoke a tow firm permit for those same reasons, or for the following additional reasons:

(1) Within five years prior to the date of application the applicant has been convicted of any of the following crimes:

Theft, petty theft, theft of a vehicle, breaking or removing vehicle parts, malicious mischief to vehicle, check fraud, credit card fraud, driving under the influence of alcohol or drugs, vehicular manslaughter, reckless driving bodily injury, any sex offense which would cause the applicant to be registered as a sex offender, any unlawful carrying, use or possession of a firearm, any assault or battery (misdemeanor or felony), kidnapping, arson, extortion, murder, possession of alcoholic beverage, opened alcohol container, marijuana, or narcotic drug while driving, or bailee tampering.

(2) The imposition of towing, storage or other charges in excess of the maximum rate established by the City and County of San Francisco for its contracted tow car firms;

(3) Unauthorized charges added to the tow fee, including use of special equipment, release fees, administrative fees or other charges added to the tow fee;

(4) The towing or removal of any vehicle from public or private storage in other than a duly authorized manner;

(5) Failure to maintain in full force and effect the required bodily injury and property damage insurance;

(6) Employing any person as a tow car operator who has not been issued a valid tow car operator's permit by the San Francisco Police Department;

(7) Knowingly falsifying a tow...