Cade v. Montgomery County

• Decision Date: 01 September 1989
• Docket Number: No. 1161,1161
• Citation: 83 Md.App. 419,575 A.2d 744
• Parties: Glenn CADE, t/a G & G Towing, et al. v. MONTGOMERY COUNTY, Maryland, et al. ,
• Court: Court of Special Appeals of Maryland

Page 419

83 Md.App. 419

575 A.2d 744

Glenn CADE, t/a G & G Towing, et al. v. MONTGOMERY COUNTY, Maryland, et al.

No. 1161, Sept. Term, 1989.

Court of Special Appeals of Maryland.

June 27, 1990.

Certiorari Denied Aug. 30, 1990.

William C. Brennan, Jr. (Knight, Manzi, Brennan, Ostrom & Ham, P.A., on the brief), Upper Marlboro, for appellants.

Patricia P. Hines, Asst. County Atty. (Clyde H. Sorrell, County Atty., and Linda D. Berk, Sr. Asst. County Atty., on the brief), Rockville, for appellees.

Argued before MOYLAN, GARRITY and WENNER, JJ.

WENNER, Judge.

Upon this appeal and cross-appeal from the Circuit Court for Montgomery County, we are asked to consider the validity of a comprehensive local ordinance regulating the towing of motor vehicles from private property without the consent of the vehicles' owners. We shall reverse the judgment of the circuit court which declared the ordinance unconstitutional in its entirety. In so doing we shall address, although not necessarily in the order presented, the following arguments:

I. A local ordinance which requires a towing service to accept as payment for towing and storage fees personal checks or credit cards in lieu of cash violates the prohibition against States making anything but gold and silver coins tender in payment of debts;

II. A possessory lien is created in favor of the towing service until the vehicle owner pays the towing and storage fees;

III. A vehicle owner who parks without permission on private property that is properly posted with signs warning that trespassing vehicles will be towed, and whose vehicle is towed at the direction of the property owner, is liable for the towing and storage fees;

IV. Towing services do not have standing to assert that the rights of private property owners are improperly infringed by the ordinance V. The ordinance is a proper exercise of the police power. ¹

Appellants, G & G Towing, et al., are a number of towing companies. They sought a declaration that the ordinance, Bill No. 16-87, was unconstitutional. In the meantime, appellants were successful in enjoining the appellee, Montgomery County, Maryland, from enforcing the ordinance until resolution of the merits of their complaint. ² The matter was heard by the circuit court upon cross motions for summary judgment. After a hearing, the circuit court declared that the ordinance was unconstitutional as exceeding the county's police power. ³ We disagree.

Montgomery County has adopted a home rule charter under Article XI-A of the Maryland Constitution. Consequently, Article 25A, Section 5(S) of the Annotated Code of Maryland confers upon Montgomery County the authority to "pass all ordinances, resolutions, or bylaws not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section or elsewhere in this article, as well as such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county." See also Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 159-160, 252 A.2d 242 (1969). See also Mont.Co.Code § 2-12 (1984) (conferring upon the Montgomery County Council "full power and authority to enact ordinances for the county as it may deem necessary for the peace, good government, safety or welfare of the county"). The Court of Appeals has held that this grant of power to legislate for the general welfare of the county is to be afforded a broad reading. Id. at 161, 252 A.2d 242. The Court has also said that it is enough that a legislative act tends to correct some local evil or promote some local interest, and that the act is reasonably and substantially related to its goal or purpose. Steuart Petroleum Co. v. Board of County Commissioners, 276 Md. 435, 446-447, 347 A.2d 854 (1975). For purposes of illumination, we summarize the legislation and its objective.

The catalyst behind Montgomery County Council Bill No. 16-87, to be codified in the Montgomery County Code as Chapter 30C, Motor Vehicle Towing From Private Property, was citizen complaints of "excessive rates, little or no notice of which areas are off limits to parking, and difficulty in redeeming towed vehicles." See Legislative Request Report, Bill No. 16-87. The purpose of the Bill, then, was to "clarify the respective rights of landowners, towing services, and motorists." Id.

The scope of Bill No. 16-87 is limited to the towing of motor vehicles from private property without the consent of the owners of the vehicles. 30C-1(b). Generally, vehicles with valid handicapped registration plates or valid disabled person's parking permit may not be towed from private property without the consent of the vehicle's owner. ⁴ 30C-6.

The rates which a towing company may charge are limited to those maximum rates set by the county executive. 30C-2(a). Every trespass towing company must file with the office of consumer affairs a schedule of its towing and storage rates, and is precluded from charging fees that exceed that schedule. 30C-3(c) and (d). Each trespass towing company must enter into a written agreement with every private property owner that authorizes a towing company to tow trespassing vehicles. 30C-3(f).

Bill No. 16-87 imposes certain requirements on owners of private property. Prior to having a motor vehicle towed without the consent of the vehicle's owner, the property owner must post a sufficient number of signs notifying the public of the parking restrictions. 30C-4(b)(1). Signs must be posted 24 hours prior to towing a trespassing vehicle. Id. It is sufficient if at least one sign is clearly visible from each parking area and each vehicle entrance to the property. 30C-4(b)(2). In the alternative, private parking lots having more than 100 spaces may post in a conspicuous place, readable from all affected spaces, at least one sign for every 75 spaces. Id. Each sign must indicate the area and time within which the restrictions will be enforced and give notice that any vehicles violating the restrictions will be towed at the owner's expense. 30C-4(b)(3). Signs must include the telephone numbers of each towing company hired to tow and, in the alternative, a telephone number at which the towing company may be reached at all hours. Id. Signs must be clearly legible and unobstructed. Id. Alternatively, owners of residential property, such as condominiums, may have a trespassing vehicle towed within not less than 48 hours after having attached a written notice to the vehicle in a conspicuous place notifying the owner of the violation. Id. Public notice provisions are inapplicable to towing from the yard or driveway of single family dwellings. 30C-1(b)(3)(B). Private property owners or their agent must expressly authorize the tow. 30C-4(c).

Bill No. 16-87 also prescribes towing and redemption procedures. The towing company must tow each trespassing vehicle to the nearest storage site available to the company, but not more than 12 miles from the origin of the tow. 30C-8(a)(1). The towing company must keep the towed vehicle and its contents secure at all times. 30C- -8(a)(4). The towing company must notify the appropriate county or municipal police department of each trespass tow, 30C-5(a); the police must be contacted again if a vehicle remains in the company's possession for more than 72 hours. 30C-5(d). The towing company is required to remain open at least 2 hours after completion of the last tow. 30C-8(b).

The towing company is required to accept in lieu of cash payment either a major credit card or a personal check. 30C- 8(c)(2)(A). ⁵ In the event a vehicle owner later withholds payment for a credit card transaction or stops payment on a check, the vehicle owner is liable to the towing company for twice the amount validly charged. 30C-8(c)(5) and (6). If, prior to a vehicle's removal from private property but after the vehicle has been attached to the tow truck, the vehicle owner returns to the tow site, the towing company must release the vehicle to the owner upon payment by the owner of a release fee. 30C-7(a). Such release fee cannot be greater than one-half the fixed rate for towing the vehicle to the nearest storage site. Id. With this background firmly in mind, we now turn to the issues at hand.

Discussion

At the outset, we observe that an ordinance, like a statute, is presumed to be valid. R.S. Construction Co. v. City of Baltimore, 269 Md. 704, 706, 309 A.2d 629 (1973). A legislative enactment is within the permissible bounds of the police power if it is reasonably and substantially related to the public health, morals, safety and welfare of the people. Steuart, supra, 276 Md. at 446, 347 A.2d 854. Beyond that, of course, the act must not infringe upon any constitutional guarantees. Maryland Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103, 106-107, 311 A.2d 242 (1973). In any event, the burden of demonstrating the invalidity of a legislative enactment rests with the party attacking its constitutionality. Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 48, 300 A.2d 367 (1973).

A.

The circuit court found that Bill No. 16-87 was an improper exercise of the police power for essentially two reasons.

1.

The circuit court determined that the provisions of the Bill relating to the posting of signs and the exception prohibiting generally the towing of vehicles with valid handicapped identifications were too stringent and interfered with the rights of private property owners to remove trespassing vehicles from their property. Initially, we shall reject appellee's contention that appellants do not have standing to assert that the rights of private property owners are improperly infringed by the ordinance. It is true that this issue was not raised below. See supra, n. 3. As we see it, however, the circuit court was not precluded from granting declaratory relief on grounds entirely different from those on which...