Jam Action, Inc. v. Colorado State Patrol, 93CA1820

• Decision Date: 17 November 1994
• Docket Number: No. 93CA1820,93CA1820
• Citation: 890 P.2d 210
• Parties: JAM ACTION, INC. d/b/a Action Towing, Inc.; Robert E. Kinyon d/b/a Blue Sky Service; Harry E. Mabis Sr. and Harry E. Mabis, Jr. d/b/a Eddie's Towing Service; Harry E. Mabis, Sr. d/b/a Harry's Discount Auto Service, Sales & Towing; Randolph S. Milan d/b/a Import Auto Sales & Service; Alvin J. Ahnstedt and Arthur J. Howell d/b/a Johnson's Corner Service; Jan Schneider d/b/a Jan's Towing; Jerry Ewing; Kramer & Houston Towing Service, Inc.; Rocky Mountain Insurance Pool, Inc.; Darrell Dean Schmer d/b/a Schmer's Towing; Richard Slatten d/b/a Slatten's Towing; Stan's Auto Service, Inc.; and, Anthony Benavides d/b/a Tony's Towing, Petitioners-Appellants, v. COLORADO STATE PATROL, Respondent-Appellee. . IV
• Court: Colorado Court of Appeals

Page 210

890 P.2d 210

JAM ACTION, INC. d/b/a Action Towing, Inc.; Robert E Kinyon d/b/a Blue Sky Service; Harry E. Mabis Sr. and Harry E. Mabis, Jr. d/b/a Eddie's Towing Service; Harry E. Mabis Sr. d/b/a Harry's Discount Auto Service, Sales & Towing Randolph S. Milan d/b/a Import Auto Sales & Service; Alvin J. Ahnstedt and Arthur J. Howell d/b/a Johnson's Corner Service; Jan Schneider d/b/a Jan's Towing; Jerry Ewing Kramer & Houston Towing Service, Inc.; Rocky Mountain Insurance Pool, Inc.; Darrell Dean Schmer d/b/a Schmer's Towing; Richard Slatten d/b/a Slatten's Towing; Stan's Auto Service, Inc.; and, Anthony Benavides d/b/a Tony's Towing, Petitioners-Appellants, v. COLORADO STATE PATROL, Respondent-Appellee.

No. 93CA1820.

Colorado Court of Appeals, Div. IV.

Nov. 17, 1994.

Rehearing Denied Dec. 29, 1994.

James A. Beckwith, Denver, for petitioners-appellants.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Stacy L. Worthington, Asst. Atty. Gen., Denver, for respondent-appellee.

Opinion by Judge CASEBOLT.

Petitioners, a group of towing carriers licensed by the Public Utilities Commission (PUC), appeal the trial court's judgment, which declared valid a written policy of the Colorado State Patrol (CSP). That policy requires any petitioner, who has obtained possession of a vehicle through a CSP referral to release personal property contained inside the vehicle to its owner without payment of accrued storage charges. We affirm.

The parties' joint stipulation of facts indicates that CSP regularly requests the dispatch of towing carriers for the purposes of clearing public roadways of damaged, abandoned, seized, or impounded vehicles. CSP employs a rotational list from which it requests towing services (Rotation Tow List). Towing carriers who wish to be placed on the Rotation Tow List must apply for inclusion under the procedures set forth in Colorado State Patrol, Manual of Policy, Rule & Procedure, Chapter 302.3 (February 1, 1991). All of the petitioners are listed on the Rotation Tow List.

The policy which is the subject of the present dispute states:

When authorized by the Patrol, towing carriers must agree to release items of personal property to the lawful owner prior to payment of any accrued charges. This applies only to those items of personal property which are contained within the vehicle but not considered part of the vehicle ...

Colorado State Patrol, Manual of Policy, Rule & Procedure, Chapter 302.3, § (I)(j) (February 1, 1991) (CSP Policy).

The towing carriers enrolled in the Rotation Tow List impose a daily charge for storing a seized or impounded vehicle. In this action, petitioners complain that the CSP Policy impermissibly restricts their right to impose a lien on unattached personal property contained in the vehicle.

I.

CSP asserts that it has never taken or threatened any adverse action against any of the Petitioners, and it is merely speculative that any adverse action will ever be taken against any towing carriers. Hence, as an initial contention, it argues that this action is inappropriate for declaratory judgment. We reject this argument.

A declaratory judgment action may be maintained by any party whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise. Any such person may have determined questions of construction, validity, rights, status, or other legal relations thereunder. Section 13-51-106, C.R.S. (1987 Repl. Vol. 6A); C.R.C.P. 57.

Here, the petitioners are listed on the Rotation Tow List, and complain that the CSP Policy is an invalid abrogation of their claimed legal right to impose a lien on personal property obtained through rendition of their services. In our view, this states a cognizable claim under C.R.C.P. 57 and § 13-51-106, C.R.S. (1987 Repl. Vol. 6A).

II.

Petitioners contend that the trial court erred in concluding that they have no property right to receive referrals from CSP for towing work and that CSP may impose the CSP Policy as a condition for placement on the Rotation Tow List. We disagree.

Our supreme court rejected a similar claim in Rocky Mountain Motor Co. v. Airport Transit Co., 124 Colo. 147, 235 P.2d 580 (1951). In that case, a taxicab company had, for a number of years, enjoyed what was in effect an exclusive concession to operate at the airport without a written lease, contract, or permit from the city. The city subsequently granted a rival taxicab company an exclusive concession. The court rejected the claim that the original taxicab company had a property right in continuing its taxicab business at the airport by virtue of its general license to operate upon the streets of the City and County of Denver.

The court stated:

Yellow Cab's contention that in this matter it had a legal right to insist that it be permitted to maintain the cab stand at the airport on city property for its own benefit is without merit. Its license to operate upon the streets of the City and County of Denver is not hereby restricted or interfered with and under such license it has no legal call upon any portion of any business regardless of where it might originate or terminate ... [H]ence it has no property right to do business at the airport and no legal right to object to the granting to another, under the circumstances, of an exclusive privilege for that purpose.

(emphasis added)

We find this reasoning persuasive.

Here, petitioners have no unqualified property right to be included on the Rotation Tow List by virtue of their permits issued by the PUC. The PUC permits obtained under § 40-13-101, et seq., C.R.S. (1993 Repl. Vol. 17) only allow towing carriers to offer their services to the general public, including CSP. CSP, like the general public, retains its right to select any towing carrier and to negotiate the terms upon which it will provide business opportunities to those selected. The fact that only those persons or entities permitted by the PUC may offer such towing services does not mandate that CSP include all carriers in its list, nor mandate that CSP accede to the towing carrier's conditions for doing business.

Moreover, petitioners have cited no other contract, statute, ordinance, or mutually explicit understanding which gives them a legitimate claim of entitlement in receiving referrals from CSP for towing work. See Abercrombie v. City of Catoosa, 896 F.2d 1228 (10th Cir.1990). Accordingly, their contention is without merit.

III.

Petitioners next argue that the CSP Policy is invalid because CSP lacks authority to impose any conditions upon participation in its Rotation Towing List. We disagree.

Section 24-33.5-203(1), C.R.S. (1988 Repl. Vol. 10A) grants the executive director of the Department of Public Safety authority and responsibility to...