Interstate Towing Ass'n, Inc. v. City of Cincinnati, Ohio

• Decision Date: 13 October 1993
• Docket Number: No. 92-3731,92-3731
• Citation: 6 F.3d 1154
• Parties: INTERSTATE TOWING ASSOCIATION, INC., Plaintiff-Appellant, v. CITY OF CINCINNATI, OHIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1154

6 F.3d 1154

INTERSTATE TOWING ASSOCIATION, INC., Plaintiff-Appellant, v. CITY OF CINCINNATI, OHIO, Defendant-Appellee.

No. 92-3731.

United States Court of Appeals, Sixth Circuit.

Argued June 15, 1993.

Decided Oct. 13, 1993.

Brett Colbert Goodson (briefed), Kimpel, Hyland, Weinkam & Goodson, Cincinnati, OH, Michael P. McGovern (argued and briefed), McGehee & Newton, Knoxville, TN, for plaintiff-appellant.

James F. McCarthy, III (argued and briefed), Fay D. Dupuis, City Solicitor's Office, Cincinnati, OH, for defendant-appellee.

Before: GUY and BATCHELDER, Circuit Judges; and MILES, Senior District Judge. ^*

BATCHELDER, Circuit Judge.

By ordinance, the City of Cincinnati, Ohio ("City") requires all tow trucks that tow vehicles from locations within City limits to other City locations, or to locations outside the City, to be licensed by the City. Cincinnati, Ohio, Mun.Code Sec. 869-7 (1990). ¹ The ordinance applies to all towing companies or operators based within the City limits or within a 25-mile radius of the City limits. Id. To obtain a license, proof of which is evidenced by an emblem known as a "T-sticker" placed on the windshield of each tow truck, id. Secs. 869-17, -19, the towing operator must fill out an application form, id. Secs. 869-9, -11; show proof of general liability insurance in the amount of at least $300,000, id. Sec. 869-13(a), and of "garage keeper's liability" insurance of at least $50,000, id. Sec. 869-13(b); post a $5,000 bond, id. Sec. 869-15; submit each wrecker for City inspection, id. Sec. 869-9; and pay an $80 fee, id. The City assesses fines for performing towing services without the requisite license. Id. Sec. 869-99. Towing services must be rendered in compliance with regulations set out by the City. Id. Sec. 869-21.

Plaintiff-appellant Interstate Towing Association ("ITA") represents the interests of towing concerns nationally, including concerns located in and around Cincinnati. In October 1990, plaintiffs ² filed suit against the City, seeking a preliminary injunction against enforcement of this ordinance and challenging the validity of the ordinance, arguing that federal interstate trucking laws preempt the ordinance, that the ordinance impermissibly burdens interstate commerce, and that it fails muster under the United States Constitution. The district court consolidated the preliminary injunction motion and the underlying suit for bench trial.

The district court found in favor of the City, holding that the ordinance is not preempted by federal law, is not excessively burdensome on interstate commerce under the Commerce Clause, and is not violative of the Fourteenth Amendment, being reasonably related to legitimate municipal interests. See Interstate Towing v. City of Cincinnati 799 F.Supp. 805 (S.D.Ohio 1992). For the reasons we discuss presently, we agree.

I.

A.

ITA contends that federal law impliedly preempts ³ the ordinance. The Constitution declares that "the Laws of the United States ... shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Among other circumstances, federal law preempts state law "when there is an outright or actual conflict between federal and state law." Louisiana Public Serv. Comm'n v. FCC, 476 U.S. 355, 368, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986). Regulations promulgated by a federal agency that conflict with state law preempt state law in the same manner as do specific acts of Congress. Id. at 369, 106 S.Ct. at 1898-99. The courts presume that federal legislative or regulatory action intends to preempt parallel state and local legislation. Id.

First, ITA notes that federal regulations require its trucks, like all interstate trucks over 10,000 lbs. gross weight, to undergo extensive mechanical inspections; the City, on the other hand, requires only a minimal inspection conducted by "untrained and unskilled police officers." ITA presented evidence at trial that the City inspections were perfunctory at best, taking only a few minutes, and that certain of the required tests, for example, the brake safety regulation requiring inspectors to test whether the truck going 20 miles per hour can stop within 30 feet, were not actually done on a regular basis. ITA also presented testimony describing the federal roadside inspection as thorough and lengthy compared to the City tow truck inspections. One of plaintiffs' witnesses said that he took a wrecker to be inspected by the City, it passed inspection, and then he took the same wrecker within a short time to the federal inspection station, where it was deemed "unroadworthy" due to numerous mechanical problems.

The district court found that while both the federal trucking regulations and the City ordinance require inspections, the inspections are "not identical." Interstate Towing, 799 F.Supp. at 809. We agree. Federal regulations impose a galaxy of equipment requirements on interstate trucks, including specifications for lights, electrical systems, brakes, windows, fuel systems, tires, emergency equipment, and a number of miscellaneous items. See 49 C.F.R. Ch. III, Subchapter B, Part 393. Trucks must be inspected at least once annually, 49 C.F.R. Sec. 396.17, inspectors must meet minimum qualifications, 49 C.F.R. Sec. 396, and several pages of regulations dictate what defects result in failure of a vehicle to pass federal inspection, 49 C.F.R. Ch. III, Appendix G to Subchapter B. The City, too, requires an annual inspection, which, as the City regulations indicate, encompasses far fewer items.

Perhaps surprisingly, the two inspection schemes overlap only slightly. Most importantly, while the federal regulations encompass all interstate trucks, and generally focus on tractor-trailer type vehicles, the City ordinance specifically addresses the safety requirements of tow trucks. As the City argued before the district court, its primary goal in implementing the ordinance was to ensure safe, standardized, high-quality towing service; the regulations reflect that goal. Most of the City regulations, therefore, specify the minimum equipment required for each tow truck. Depending on the size and category of the truck, certain winch capacities are required. The regulations require each wrecker to carry accessories such as tow bars, chains, a fire extinguisher, brooms, a shovel, "and other equipment necessary to render first class towing service." Cincinnati Ohio, Wrecker and Towing Rules and Regulations (City Regulations) Sec. C(a)-(e).

The only areas where the City Regulations arguably overlap with federal regulations is in the City's requiring wreckers to be equipped with "Class A" turn signals, City Regulations Sec. C(d), and with sufficient brakes to meet standards set out under the Ohio Code and another City ordinance. The inspection, however, requires only that the truck be able to stop from 20 miles per hour within 30 feet, for trucks over 10,000 pounds gross vehicle weight (GVW) such as the plaintiffs', actually a more stringent requirement than that promulgated under federal regulations. See 49 C.F.R. Sec. 393.52(d), Table B (requiring vehicles over 10,000 lbs. GVW to be able to stop from 20 m.p.h. within 35 feet). Since the City ordinance requires additional equipment specific to tow trucks not required under federal regulations, and since the City imposes at least the same if not more stringent requirements than do the federal regulations in the areas of overlap (brakes and turn signals), the City ordinance is not preempted by the Motor Carrier Safety Regulations, 49 C.F.R. Secs. 350-399. While ITA has presented evidence that the City may be less than diligent in its enforcement of its own regulations, that evidence has ultimately no relevance to the question of specific preemption, which requires us to look only at the potentially conflicting laws and regulations as promulgated. ⁴

B.

Next, ITA asserts the doctrine of "field preemption," arguing that in the area of interstate trucking, "Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law." Louisiana Public Serv. Comm'n, 476 U.S. at 369, 106 S.Ct. at 1898. Citing the Act's legislative history, ITA posits that the MCSA came about in an effort to establish standard trucking laws and regulations for the nation and thus largely eliminate state and local efforts to regulate trucking, which had unduly hampered the free interstate movement of trucks. The Act includes provisions requiring all states and subdivisions thereof to submit extant or planned trucking regulations to the Secretary of Transportation (Secretary) for approval. In the absence of such approval, Congress intended to preempt all state and local regulations on interstate trucking that are less stringent than the applicable federal regulations.

ITA would have us apply the recent case of Gade v. National Solid Wastes Management Ass'n, --- U.S. ----, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992), to the question of whether the MCSA preempts the ordinance. In National Solid Wastes, a plurality of the Court opined that the federal Occupational Safety and Health Act (OSH Act) and related regulations preempted worker safety standards enacted by Illinois. Examining "the provisions of the whole law, and ... its object and policy," the plurality held that "nonapproved state regulation of occupational safety and health issues for which a federal standard is in effect is impliedly preempted as in conflict with the full purposes and objectives of the OSH Act." Id. --- U.S. at ----, 112 S.Ct. at 2383. The OSH Act includes provisions by which a state wishing to implement its own comprehensive worker safety and health laws is required to submit its plan to the Secretary of Labor for approval; if approved, the state law is implemented, and the OSH Act does not apply. Id.; 29 U.S.C. Sec. 667. The fact that Congress included these approval provisions for state laws, viewed "in...