City of Colorado Springs v. Grueskin
| Decision Date | 19 December 1966 |
| Docket Number | No. 21669,21669 |
| Citation | 422 P.2d 384,161 Colo. 281 |
| Parties | CITY OF COLORADO SPRINGS, a Municipal Corporation, Plaintiff in Error, v. Harold GRUESKIN and Dividend Automotive Equipment Company, Defendants in Error. |
| Court | Colorado Supreme Court |
Dale L. Holst, Donald E. La Mora, Colorado Springs, for defendants in error.
Donaldson, Hoffman & Goldstein, Denver, A Professional Corporation, amicus curiae.
A. T. Smith, Denver, Gordon H. Mayberry, Houston, Tex., William S. Livingston, Denver, amici curiae.
Two cases are here consolidated. The issues are the same in each case. The plaintiff in error will be referred to as the City and the defendants in error will be mentioned as defendants.
The City accused the defendants of violating Sections 16--92 and 16--98 of the Code of the City of Colorado Springs on January 18, 1964, by making delivery of a flammable liquid, to-wit: gasoline, from a tank transport truck having a capacity in excess of 2,200 gallons. The delivery was made at a retail service station located at 824 West Colorado Avenue, Colorado Springs, Colorado. Section 16--98 of the Code of the City provides as follows:
Defendants admit that delivery was made from a tank transport truck having a capacity of 8,800 gallons, compartmented in compliance with National Board of Fire Underwriters Bulletin 385, Section 2231, which Bulletin is expressly adopted by Section 16--82 of the code of the City.
The principal issue in this case is whether Sections 92 and 98 of Chapter 16 of the code of the City of 1958 constitute a valid exercise of the police powers of the City. Dividend Automotive Equipment Company takes the position that the aforementioned sections do not have a substantial and real relation to the promotion of the public health, welfare and safety, but in fact are detrimental to the public health, welfare and safety.
Defendants further contend that the subject ordinances violate Article I of the Fourteenth Amendment to the Constitution of the United States and Section 25 of Article II of the Constitution of the State of Colorado in that they deprive the defendants of their property without due process of law; that they deny them equal protection of the laws; and that the ordinances are discriminatory and create classifications which have no real basis in fact. Defendants further contend that the ordinances violate Paragraph 3 of Section 8, Article I of the Constitution of the United States of America, commonly called the Commerce Clause, in that they impose an unreasonable restraint and burden upon commerce between the states. The pertinent evidence is as follows:
Dividend Automotive Equipment Company and Dividend Bonded Gas Company, corporations primarily owned by Harold R. Grueskin, operate four retail gasoline service stations in Colorado Springs, Colorado. One of these stations is outside the city limits by the distance of half the width of the street marking the boundary. Operated in connection with it is a bulk plant and storage facilities where gasoline is kept for redelivery to the other locations in the City by means of a tank truck having a capacity of one thousand five hundred gallons.
Approximately four to five million gallons of gasoline are retailed at the four locations during the average year. Each of the locations has underground storage facilities and tanks for the storage of 24,000 gallons or more of gasoline. Each location is physically arranged and laid out in a manner which would make it relatively easy to unload a tank semi-trailer or tank trailer having a capacity of eight or nine thousand gallons in a short period of time in areas upon the premises which are apart from the area in which retail sales are made. With the exception of the North Union Boulevard location, all of the locations are relatively close to Interstate No. 25 which is the north-south freeway running through the City.
At the present time Dividend Automotive Equipment Company owns and operates a 1,500 gallon tank truck for the purpose of delivery of gasoline from the storage facilities located at 333 North Union Boulevard to the other three retail outlets located in Colorado Springs. The gasoline is normally unloaded at the North Union Boulevard facility from large tank trailers or semitrailers for redistribution by means of the tank truck described. The redelivery of gasoline by use of the 1,500 gallon tank truck costs Dividend Automotive Equipment Company approximately one-quarter cent per gallon for delivery, or about $8,145 per year. This is a minimum figure and is calculated without taking into account special labor requirements which might be necessary to operate delivery facilities on a full time basis. A time study discloses that this method of operation substantially increases the exposure of the public to situations which could result in accident as a result of human error. Such exposure is summarized by the following table:
EXPOSURE TO THE PUBLIC--WEEKLY
----------------------------------------------------------------
Using Present Using 9,000
Tank Wagon System Gallon Transport
----------------- ----------------
EXPOSURE ON CITY STREETS
---------------------------
Miles Travelled 376 31
Hours 25 1/2 3
Number of Trips 58 11
EXPOSURE IN STATIONS
---------------------------
Hours to Unload 15 4 3/4
Number of Connections 116 22
(on and off)
Rate of Unloading (all with 100 gal. 350-400 gal
fastest devices) per minute per min
Hours to Load 9 0
Number of Connections 56 0
(on and off)
The 'Tank Vehicles for Flammable Liquids' standard of the National Board of Fire Underwriters, which standard is set forth in National Board of Fire Underwriters Pamphlet 385, was introduced in evidence. In addition, Section 16--99 of the Code of the City permits the making of deliveries by transports with capacities up to 10,000 gallons at certain areas within the City. It is admitted that no truck routes for carriers of flammable liquids have been established by the City.
Testimony by Messrs. George F. Prussing, John Ainlay, Joseph Antonio and Harry W. Martin conclusively established that the danger is in the handling of gasoline and that the danger to the public increases almost in direct proportion to the number of times gasoline is handled or the frequency with which trucks carry gasoline over the city streets. All witnesses who testified, including Fire Chief Lausch and Battalion Chief Nice, agreed that there is no greater hazard in unloading a tank semi-trailer carrying 8,800 gallons of gasoline at a retail service station once the tanker is located upon the premises, than there is in unloading from a tank wagon having a capacity of 2,200 gallons or less.
Expert witnesses testified on behalf of the defendants that under the ordinance in question the handling of gasoline was increased; the exposure time to the public was increased; the use of above ground bulk tank storage is more dangerous than underground storage; the safety devices available upon, and in fact in use on, the tank semi-trailers are much superior to those in use upon tank wagons. The tank wagon presented as an exhibit by the City contained none of the safety devices required by the ordinances of the City or by the National Board of Fire Underwriters Flammable Liquid Pamphlet No. 385. There was also testimony, which we deem logically true, that the existence of the present ordinance does not reduce the number of tank semi-trailers on the streets of the City because the City has a need and requirement for a minimum amount of gasoline to be used as fuel and energy each year, and that gasoline must be brought into the City either by tank truck, semi-trailers or railroad tank cars for delivery to the bulk plant which in turn redelivers it to retail service stations.
The defendants purchase gasoline which is refined in the State of Texas and then transport it into the State of Colorado by means of an interstate pipeline which is a common carrier. It is then delivered to a pipeline terminal in Denver at which time it is loaded into interstate truck carriers and delivered to the defendants in Colorado Springs, Colorado. The defendants then sell it to consumers, many of whom are involved in interstate travel.
Fire Chief Lausch's testimony indicates that the regulation of the capacity of trucks handling flammable liquids involves the possibility of spillage and its resultant problems of cleaning up the streets and washing the spillage into the sewer, which problems are particularly difficult in freezing weather; and that the ordinance resulted from a desire to limit the total quantity of gasoline which might be spilled in any one incident.
Section 16--94 of the Code of the City requires all unloading of gasoline to be conducted in accordance with the then existing regulations of the Interstate Commerce Commission. This Commission has not promulgated any rules or regulations limiting the size of compartmented tanks when making deliveries at retail stations; it has, however, adopted regulations which provide that uncompartmented trucks of a capacity of up to 10,000 gallons must be completely unloaded...
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