Opinion
Civ. No. 99-3131, SECTION: "R" (1).
February 15, 2000.
ORDER AND REASONS
Plaintiffs, the New Orleans Towing Association, Inc., Ducros Automotive, Inc., D G Body Shop, Inc., Don Hingle's Body Shop, Inc., and Stevens Body Fender, Inc., challenge sections 162-1011 and 162-1012 of New Orleans City Ordinance 22369, which regulates certain tow truck activities, on the grounds that these provisions are preempted by federal law. Plaintiffs seek declaratory relief as well as an injunction against enforcement of these sections of the ordinance. Because the Court finds that the provisions at issue are exempt from preemption by the safety regulatory exception in 49 U.S.C. § 14501 (c)(2)(A), plaintiffs' motion for a permanent injunction is denied. Specifically, the Court finds that when Congress deregulated the transportation industry it did not foreclose the City of New Orleans from limiting the number of tow trucks appearing at accident scenes in the interests of public safety.
The parties agreed to consolidate the hearing for a preliminary injunction with a trial on the merits for a permanent injunction, and to have this Court try the issues on a written record. See FED. R. Civ. P. 65(a)(2).
I. Background
The Towing Association is an association of towing operators domiciled in Orleans Parish, and the remaining plaintiffs are Louisiana corporations that engage in tow truck activities. On March 30, 1999, the New Orleans City Council adopted 22369, an ordinance that regulates certain tow truck activities, including "wreck chasing" and the use of police monitoring devices. Wreck chasing is a practice by which tow truck operators race to the scene of an accident in order to offer unsolicited assistance to disabled vehicles. Low truck operators often use police radios and monitor police radio frequencies in order to determine the location of these accidents. Section 162-1011 of the ordinance prohibits tow trucks from appearing at accident scenes unless they are solicited by police or the vehicle owner or operator:
Although the Towing Association is not itself a motor carrier, it has standing to bring this action on behalf of its members. See Harris, 943 F. Supp. at 718.
Tow truck operators shall not respond to the scene of a police investigation unless called by the police or by the owner or operator of a disabled vehicle. No person, including but not limited to, tow truck owner, or his agent, employee or operator shall stop at the scene of an accident, or at or near a disabled vehicle, for the purpose of soliciting an engagement for towing service. No tow truck owner, or his agent, employee or operator shall stop at the scene of an accident, or at or near a disabled vehicle, unless he has been summoned to such scene by the owner or operator of a disabled vehicle or has been requested to perform such services by the New Orleans Police Department or other police agency.
Section 162-1012, entitled "Prohibited Use of Emergency Equipment," prohibits the use of police radio monitoring devices as follows:
Rotating or strobe lights shall not be used except while at the scene of the accident/emergency or while towing a vehicle.
No towing service company or tow truck operator may operate or utilize a police radio monitoring device to obtain information regarding police emergencies or vehicular accident scenes for the purpose of soliciting towing services. The possession of radios and/or scanning devices which access police radio frequencies, in any vehicle or tow truck assigned to the towing business is prohibited.
The ordinance also contains provisions establishing a rotation system by which the City Police Department calls tow trucks to accident scenes when the vehicle owner has not done so. See § 162-998. The ordinance also establishes equipment and personnel criteria for companies to meet to be eligible for police calls in the rotation system. See § 162-1000.
On October 13, 1999, plaintiffs filed suit in this Court against the City of New Orleans, seeking a declaratory judgment that § 162-1011, on wreck chasing, and § 162-1012, prohibiting the use of police radio monitoring equipment, are preempted by 49 U.S.C. § 14501 (c), and seeking to enjoin enforcement of those sections. Plaintiffs do not challenge the other provisions of the ordinance. Plaintiffs allege that they have been ticketed and fined by the NOPD for having violated these sections of the ordinance, that they have been prohibited from legally doing business in the City of New Orleans and that the City has violated and continues to violate the Supremacy Clause of the United States Constitution by enforcing the sections.
II. Discussion
A. Legal Standard
A court may grant a preliminary injunction if plaintiff establishes four factors: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction would result in irreparable injury; (3) the threatened injury outweighs any potential harm to the opposing party; and (4) the injunction will not disserve the public interest. See Allied Marketing Group, Inc. v. CLD Marketing, Inc., 878 F.2d 806, 809 (5th Cir. 1989). In order to grant a permanent injunction, a plaintiff must prove actual success on the merits, and the three remaining factors are identical to those that must be proved to obtain a preliminary injunction. See Amoco Product Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S. Ct. 1396, 1404 n. 12 (1987). "Because this case involves preemption, a finding of success on the merits carries with it a determination that the other three requirements have been satisfied." Greyhound Lines, Inc. v. City of New Orleans, 29 F. Supp.2d 339, 341 (E.D. La. 1998), citing Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 783 (5th Cir. 1990). If the local ordinance is preempted by federal law, failure to grant the injunction would result in irreparable injury to plaintiffs who would be deprived of a "federally created right to have only one regulator in matters pertaining to rates, routes and services." Mattox, 897 F.2d at 784. Further, granting the injunction would not harm the City, as it would merely require it to comply with federal law under the Supremacy Clause. See id.; see also Greyhound, 29 F. Supp.2d at 341, citing Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir. 1962) (granting permanent injunction requiring compliance with federal law does not impose hardship on opposing party). Last, because Congress determined that federal regulation of the rates, routes and services of motor carriers serves the public interest, if the Court finds that the ordinance is preempted, granting the injunction would also satisfy the fourth requirement. See Mattox, 897 F.2d at 784. Accordingly, this Court will address the merits of plaintiffs' motion.
B. Preemption
1. Basic Preemption Principles
The Supremacy Clause of the United States Constitution provides that "the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. State laws that conflict with federal law are without effect. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617 (1992), quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128 (1981) State laws are displaced by federal law when (1) Congress expressly preempts state or local law; (2) Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme; or (3) state or local law conflicts with federal law or frustrates the accomplishment of federal objectives. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 n. 1 (5th Cir. 1995), citing Hillsborough Country, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 2375 (1985). The parties agree that the central issue in this case is whether the ordinance is covered by the preemption language expressed in § 14501. In an express preemption case, "analysis of the scope of the preemption statute must begin with its text." Medtronic, Inc. v. Lohr, 518 U.S. 470, 484, 116 S.Ct. 2240, 2250 (1996). When a statute is facially ambiguous, however, courts can seek Congressional intent by examining the legislative history behind the statute. See Medtronic, at 486, 116 S.Ct. at 2251. Under the Supremacy Clause, the constitutionality of a local ordinance is analyzed in the same way as that of a state law. See Cardinal Towing Auto Repair, Inc. v. City of Bedford, Texas, 180 F.3d 686, 690 (5th Cir. 1999), citing Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 S.Ct. 2476, 2482 (1991); accord Greyhound, 29 F. Supp.2d at 341.
The first inquiry in this case is whether Congress expressly preempted local regulation of intrastate tow trucking, and, if so, whether § 14501 expressly preempts §§ 162-1011 and 162-1012 of the local ordinance. In making this determination, this Court must begin with the presumption that the historic police powers of the states should not be superseded unless Congress clearly intended to do so. See Medtronic, 518 U.S. at 485, 116 S.Ct. at 2240, quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152 (1947)
2. Express Preemption under § 14501(c)
Language expressly preempting state regulation may be found on the face of the statute, in its legislative history or in regulations promulgated under the statute. See R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538, 542 (11th Cir. 1998), cert. denied, City of Atlanta v. R. Mayer of Atlanta, 119 S.Ct. 1334 (1999), citing Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1523 (11th Cir. 1988); Harris County Wrecker Owners for Equal Oppty v. City of Houston, 943 F. Supp. 711, 720 (S.D. Tex. 1996). "Interpretation of the statutory language is key to construing its preemptive force." Hodges, 44 F.3d at 335-36, citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84, 112 S.Ct. 2031, 2037 (1992). In order to discern Congress' intent, this Court must examine the language of § 14501(c) in the context of the legislation of which it is a part. See Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 1166 (1997) (statutory provisions must be examined in context of entire statute).
In 1994, Congress enacted the Federal Aviation Administration Authorization Act ("FAAA Act"), which was codified as part of the Interstate Commerce Act ("ICA"), effective January 1, 1995. Pub.L. No. 103-305, 108 Stat. 1569, 1607 (1994). The Act contained the following language preempting the regulation of prices, routes and services of motor carriers:
(1) General Rule. — Except as provided in paragraph (2) . . . a State, [or] political subdivision of a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.49 U.S.C. § 11501(h) (1995). It exempted from the scope of its preemption a state's authority to regulate with respect to motor vehicle safety. The Act provided:
(2) Matters not covered. — Paragraph (1) —
(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization. . . .49 U.S.C. § 11501(h) (1995). On December 29, 1995, Congress passed the Interstate Commerce Commission Termination Act ("ICCTA"), effective January 1, 1996. Pub.L. No. 104-88, 109 Stat. 899 (1995). In doing so, Congress recodified former § 11501(h) as 49 U.S.C. § 14501 (c) and amended the statute to include a new exception to preemption for regulation of the prices charged by tow truck companies for nonconsensual tows:
(2) Matters not covered. — Paragraph (1) —
(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.49 U.S.C. § 14501 (c)(2)(C). Under Title 49, a "motor carrier" is defined as a "person providing motor vehicle transportation for compensation." 49 U.S.C. § 13101 (12). Neither party disputes that plaintiffs are motor carriers within the meaning of the statute, and cases have uniformly recognized that towing companies are motor carriers within the definition of Title 49. See, e.g., Cardinal, 180 F.3d at 690; Mayer, 158 F.3d at 543; Harris, 943 F. Supp. at 721. Thus, under the plain meaning of § 14501(c), the federal statute expressly preempts state and local subdivisions from regulating the prices, routes or services of tow truck companies.
The City argues that § 14501(c) does not preempt the provisions at issue because 49 U.S.C. § 13506 (b)(1) and (3) exempt from preemption the emergency towing of an accidentally wrecked or disabled vehicle in a municipality, and because the provisions are not related to a price, route or service of the tow truck industry.
(a) Effect of 49 U.S.C. § 13506 (b)(1) and (3)
Title 49, United States Code, Section 13506 provides in pertinent part:
(b) Exempt unless otherwise necessary. — Except to the extent the Secretary or Board, as applicable, finds it necessary to exercise jurisdiction to carry out the transportation policy of section 13101, neither the Secretary nor the Board has jurisdiction under this part over —
(1) transportation provided entirely in a municipality . . .
(3) the emergency towing of an accidentally wrecked or disabled motor vehicle.49 U.S.C. § 13506 (b)(1), (3), emphasis added. Provisions similar to this section were previously codified as 49 U.S.C. § 10526, and were recodified by Pub.L. No. 104-88, 109 Stat. 861 (1995). The City asserts that §§ 13506(b)(1) and (3) evidence Congress' decision not to exercise jurisdiction over local emergency towing, and thus exempt the challenged provisions from preemption. Section 13506 provides exceptions to the general grant of jurisdiction to the Department of Transportation and Surface Transportation Board. Courts that have addressed this issue after the ICCTA took effect have consistently found that, despite the "linguistic morass" of the statutory scheme, legislative history, policy considerations, and, especially, the addition of § 14501(c)(2)(C), removed any doubt that Congress intended to preempt state and local towing regulations. 426 Bloomfield Ave. Corp. v. City of Newark, 904 F. Supp. 364, 369 (D.N.J. 1995). See, e.g., Mayer, 158 F.3d at 543-44 (transportation policy driving § 13101 and passage of § 14501(c)(2)(C) provide conclusive evidence that Congress intended to preempt local regulation of towing services); Greyhound, 29 F. Supp.2d at 345; Ace Auto Body Towing, Ltd. v. City of New York, 1997 WL 669891 (S.D.N.Y. Oct. 28, 1997), aff'd 171 F.3d 765 (2nd Cir.), cert denied 120 S.Ct. 166 (1999); Harris, 943 F. Supp. at 721-22. For example, when presented with the identical argument, the court in Harris found that Congress' addition of a new subsection specifically allowing state and local regulations relating to the price of nonconsensual towing (i.e. § 14501(c)(2)(C)), confirms its intent in § 14501(c)(1) to preempt state and local towing regulations. The court reasoned that if Congress had not intended to preempt such regulations, "the addition of § 14501(c)(2)(C) to cancel this preemptive force would have been unnecessary." Harris, 943 F. Supp. at 722. Further, in Greyhound, the court noted that § 13506 is an exemption from the jurisdiction of federal regulation, not an exemption from the preemption contained in § 14501(a)(1). 29 F. Supp.2d at 345. The court further reasoned that 49 U.S.C. § 14501 (a)(1) did not condition preemption on the carrier's activity being subject to the jurisdiction of federal regulations:
[S]ection 14501 does not condition preemption under subsection (c) on the motor carrier['s] being subject to jurisdiction under the Transportation Equity Act. Indeed, unlike subsections (a) and (b) [,] which preempt state regulations with respect to passenger carriers "subject to jurisdiction under subchapter I of chapter 135 of this title," subsection (c) makes no mention of jurisdiction. 49 U.S.C. § 14501 (a)(1) Thus, the charter provision is not limited by section 13506.Id., citing BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 1761 (1994) (general presumption is that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another). This Court finds the reasoning of these courts persuasive. It therefore concludes that §§ 13506(b)(1) and (3) do not exempt from preemption municipal ordinances that are related to the price, route or service of the towing industry.
(b) Related to Service
The City also submits that the main objective of the ordinance is to promote public safety by preventing wreck chasing, which creates traffic hazards and congestion, and impedes access to accident scenes by police and other emergency personnel. Thus, claims the City, it is not related to the services provided by tow truck operators, except that it provides a rotational list system for the City to call upon such services as a consumer. In construing a similar statute, the United States Supreme Court rejected the argument that only state or local laws that specifically prescribe rates, routes or service are preempted. See Hodges, 44 F.3d at 336 (construing statute expressly preempting state or local regulation of rates, routes or service of airline carriers), citing Morales, 504 U.S. at 385, 112 S.Ct. at 2037-38. Rather, "[l]aws of general applicability, even those consistent with federal law, are preempted if they have the `forbidden significant effect' on rates, routes or services." See Hodges, 44 F.3d at 336, quoting Morales, 504 U.S. at 388, 112 S.Ct. at 2039; see also Harris, 943 F. Supp. at 725 (because courts have given broadest possible scope to equivalent preemptive clause in the ADA, courts should likewise accord § 14501(c) a broad preemptive reach). Therefore, even if the City Council's primary objective was to promote public safety, the law would be preempted if it relates to the services of tow truck operators, unless there is an exemption to preemption.
The City fails to cite a single case in which its argument has prevailed. It merely claims that all the ordinance does is restrict tow truck operators who have not been called to an accident scene from providing towing services. ( See Def.'s Opp'n at 8.) However, courts have held that local ordinances that "limit who is permitted to provide [towing] services" are related to the price, route, or provision of consensual towing services. Mayer, 158 F.3d at 545; New Orleans Towing Ass'n v. Foster, Civ. No. 99-593, Section "F," Order and Reasons Granting Partial Summary Judgment (E.D. La. Aug. 27, 1999) (state law preventing wreck chasing is clearly related to towing service). This is so even when, in the final analysis, the court found that the regulations were exempt from preemption. See Ace, 171 F.3d 765. This Court finds that provisions prohibiting and/or impeding tow truck operators from stopping at an accident scene are related to the service of a motor carrier. It therefore finds that § 162-1011, which prohibits wreck chasing, and § 162-1012, which prevents tow truck operators from engaging in this practice by outlawing the use of police monitoring devices, are covered by the preemption provision in 49 U.S.C. § 14501 (c). Accordingly, the Court must determine whether these sections are exempt from preemption under any subsections of 49 U.S.C. § 14501 (c).
C. Safety Exemption in 49 U.S.C. § 14501 (c)(2)(A)
Title 49, United States Code, Section 14501(c)(2)(A) provides:
(2) Matters not covered. — Paragraph (1) —
(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight or the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating insurance requirements and self-insurance authorization[.]49 U.S.C. § 14501 (c)(2)(A). This exception authorizes a state to enact safety and insurance-related regulations. Plaintiff s argue that the challenged provisions are not shielded by the safety exception because (1) they are primarily economic measures that are not sufficiently safety-related; (2) the exception refers only to the regulation of the safety of the mechanical components of motor vehicles; and (3) the exception only applies to the states and does not shield the safety regulatory activities of municipalities. The Court addresses each of these arguments in turn.
1. Whether §§ 162-1011 and 162-1012 are safety regulations passed pursuant to the City's regulatory authority under subsection (c)(2)(A)
Plaintiffs urge this Court to find that the provisions of the ordinance at issue, although deemed "safety regulations," are in reality economic regulations that frustrate the Congressional intent behind § 14501(c). The legislative history of § 14501(c) makes clear that Congress did "not intend the regulatory authority that States may continue to exercise . . . to be used as a guise for continued economic regulation as it related to prices, routes or services." H. CONF. REP. No. 677, 103rd Con., 2nd Sess. 84 (1994), reprinted in 1994 U.S. CODE CONG. ADMIN. NEWS 1676, 1756. Thus, this Court must determine whether the wreck chasing and police monitoring device ordinances are safety or economic regulations. Because this is a preemption case, the Court need only find that the challenged provisions are "reasonably related to the safety aspects of towing" and that "the economic burdens thereby imposed are only incidental." Ace Auto Body Towing, Ltd. v. New York, 171 F.3d 765, 777 (2nd Cir.), cert. denied, 120 S.Ct. 166 (1999) (rejecting plaintiffs' argument that the provisions in issue were overbroad, and that court should apply least restrictive means test).
The ordinance states specifically that it is intended "to increase public safety." Ordinance, Preamble ¶ 1. Plaintiffs, however, rely on portions of the Ground Transportation Committee Hearing of February 22, 1999, and the City Council Meeting of March 31, 1999, for the proposition that the primary factors motivating the passage of the contested provisions were economic and social policy concerns. It is true that the speakers at the two events discussed the corruption allegedly involved in wreck chasing and the potential effect of the ordinance on small businesses. Nevertheless, review of the discussions reveals that the participants repeatedly expressed safety concerns. For example, at the beginning of the hearing, Chief of Police Richard Pennington commented as follows:
I was amazed when I arrived in New Orleans to see commercial tow trucks repeatedly racing past my police car to reach an accident scene. In fact, on one occasion, I was almost run off the road. Not only is this practice hazardous to the public, it is corrupt, a corruption that contributes to higher insurance rates, demeans the quality of life for the citizens of this city and established an atmosphere for wrongdoing by our police officers.
Chief Pennington ended with "I don't think that they even have a regard for people's safety." The very next speaker, Captain Don Moreau, stated that wreck chasing is extremely dangerous to officers and other people at the scene, and that it causes rubbernecking, traffic congestion, and leads to other accidents.
After reviewing the ordinance and these discussions, the Court finds that the provisions of the ordinance were designed to protect citizens of New Orleans from the safety hazards associated with wreck chasing, and that any economic effects on intrastate towing are incidental. The provisions at issue are also the kind of "regulations designed to meet the legitimate safety concerns about wrecker congestion at the scene of accidents and arrests" contemplated by other courts that have addressed this issue. See Harris, 943 F. Supp. at 732 (finding "E-Tags" not sufficiently safety-related, but suggesting provision that limits number of wreckers that can arrive at the scene of an accident or arrest); Ace, 171 F.3d at 774 (finding rotation system aimed at curtailing competitive incentives motivating wreck chasing sufficiently safety-oriented).
2. Distinction between motor vehicles and motor carriers
Plaintiffs aver that, even if the contested provisions are safety-oriented, they are nonetheless preempted because the safety exemption in subsection (c)(2)(A) only applies to the safety regulation of "motor vehicles," not to the safety of "motor carriers." They rely on New Orleans Towing Ass'n v. Foster for this proposition. See Foster, Civ. No. 99-539, Order and Reasons at 10. This Court declines to read subsection (c)(2)(A) so narrowly. The Fifth Circuit has found that the spirit and purpose of § 14501(c) is to encourage market forces by eliminating state and local regulation of motor carriers that reduces competition and curtails the expansion of markets. See Cardinal, 180 F.3d at 695, citing H. CONF. REP. No. 103-677, reprinted in 1994 U.S.C.C.A.N. 1715, 1758-59. Thus, as the Second Circuit observed in Ace, it appears that § 14501(c) was crafted to prevent local economic regulation of towing activities, rather than local safety regulation. See Ace, 171 F.3d at 774-76. Therefore, to the extent the safety exception is unclear, it is plausible that the phrase "safety regulatory authority of a State with respect to motor vehicles" was meant to include a state's authority to enact safety regulations dealing with motor vehicle accidents and break-downs. See id. at 774. This view comports with the Department of Transportation's ("DOT") interpretation: "We believe that State or local regulations governing the towing of damaged or abandoned vehicles that are public safety hazards would fall within the exemption, assuming . . . [they] are not a guise for broader economic restrictions." U.S. DEP'T OF TRANSP., INTRASTATE TRUCKING DEREGULATION: AN ANALYSIS AND INTERPRETATION OF TITLE VI, FEDERAL AVIATION ADMINISTRATION AUTHORIZATION ACT OF 1994, Pub.L. No. 103-305 (Mar. 1995) Furthermore, federal law for the most part deprives the relevant federal agencies of jurisdiction over emergency tows of wrecked vehicles. Unless states and localities can pass regulations in this area, no one can protect the public from safety hazards caused by unsolicited tow trucks converging on accident scenes. This Court does not believe that by deregulating the transportation industry, Congress intended to prevent localities from regulating emergency responses to accidents on their streets in the interests of public safety. The remaining issue is plaintiffs' argument that the State has no power to delegate its safety regulatory authority to the City of New Orleans.
3. Whether State can delegate authority to City
Under Title 49, "State" is defined as "the 50 States of the United States and the District of Columbia." 49 U.S.C. § 13102 (18). Conspicuously absent from the safety regulation exception are the words "or political subdivision," which appear seven times throughout § 14501. 49 U.S.C. § 14501 (a)(1), (b)(1), (c)(1), (c)(2)(C), (c)(3)(A), (c)(3)(B), and (c)(3)(C). The City asserts that despite the omission of this language, subsection (c)(2)(A) shields New Orleans from the statute's preemptive force because it encompasses a state's authority to delegate regulatory authority to a city. The Fifth Circuit has not addressed whether the preemption exemption for safety regulations in § 14501(c)(2)(A) can be invoked by municipalities. Currently, there is a split between the Second and Eleventh Circuits on this issue. See Ace, 171 F.3d at 771 (state can delegate regulatory authority to municipality, thus shielding city's regulation from preemption); Mayer, 158 F.3d 538 (state cannot delegate authority to city). The district courts that have ruled on this issue are also divided. See Petrey v. City of Toledo, 61 F. Supp.2d 674 (N.D. Ohio 1999) (state cannot delegate to city); Harris, 943 F. Supp. 711 (state can delegate authority to city); AJ's Wrecker Service, Inc. v. City of Dallas, 1999 WL 185521 at *3 (N.D. Tex. Apr. 15, 1998) (same)
After reviewing the case law, the parties' arguments and the precise facts of this case, the Court concludes that although Congress did not expressly extend the protection of the safety exception to municipalities, this does not preclude a state from delegating its regulatory authority to the city. In so concluding, the Court notes that the reasoning of Mayer and Ace are not entirely irreconcilable. In Mayer, the Eleventh Circuit observed that under Resolution Trust, 511 U.S. at 537, 114 S.Ct. at 1761, it is presumed that when Congress omits certain language from the text of a subsection of a statute and includes that language in other subsections, the omission is intentional rather than accidental. See Mayer, 158 F.3d at 545. It therefore found that the presence of the term "local subdivision" in seven subsections of § 14501 reveals that Congress intentionally excluded that language from (c)(2)(A). See id. These factors, however, do not mean that Congress eliminated the State's power to delegate to its subordinate political units if it chooses to do so. Indeed, the Second Circuit found in Ace that the Act's legislative history indicates that state safety regulatory authority, which presumably includes a state's power to delegate authority to a city, should be unaffected by the preemption statute. 171 F.3d at 775, citing Mortier, 501 U.S. at 607-09, 611-12, 111 S.Ct. at 2483-85 (finding that although FIFRA only expressly granted states power to regulate pesticides, most plausible reading leaves delegatory authority within discretion of states); see also Harris, 943 F. Supp. at 726-27; AJ's Wrecker Service, 1999 WL 185521 at *3; see also ATT Comm. of the Southwest, Inc. v. City of Austin, 975 F. Supp. 928, 939-40 (W.D. Tex. 1997) ( citing Mortier for proposition that "State's authority to regulate under a federal statute necessarily includes the authority to delegate local regulation, including regulation for public health, safety, and welfare purposes, to local authorities"). But see Mayer, 158 F.3d at 547 (observing that contested provision FIFRA, unlike § 14501(c), was devoid of reference to political subdivisions); Petrey, 61 F. Supp.2d at 678 (following Mayer).
Based on the principle that "government units are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them . . . in [its] absolute discretion," the Mortier Court noted that "[e]ven if FIFRA's express grant of regulatory authority to the States could not be read as applying to municipalities, it would not follow that municipalities were left with no regulatory authority. Rather, it would mean that localities could not claim the regulatory authority explicitly conferred upon the States that might otherwise have been preempted through actual conflicts with federal law." 501 U.S. at 607, 111 S.Ct. at 2483, quoting Sailors v. Board of Ed. of Kent Cty., 387 U.S. 105, 108, 87 S. Ct. 1549, 1552 (1967), internal quotations and citations omitted.
As the Second Circuit observed in Ace, while the spirit and purpose of the Act is clear, its legislative history is nebulous as to the scope of that purpose. See Ace, 171 F.3d at 776. Because the statute's "primary purpose was to eliminate localeconomic regulation, not local safety regulation," absent clearer evidence to the contrary, this Court declines to read into § 14501(c) Congressional intent to prohibit a municipality from regulating local safety concerns when the State has expressly authorized it to do so. Ace, 171 F.3d at 776, emphasis added, citing H.R. CONF. REP. No. 103-677, at 86-87, reprinted in 1994 U.S.C.C.A.N. at 1758-59. Here, as in Ace and Harris, the authority for the towing laws "rests precisely on this sort of delegation from the State of [Louisiana]." Id. Louisiana Revised Statute § 32:1714(2) provides in relevant part:
Any rules and regulations adopted to implement the provisions of this Paragraph, whether directly or indirectly, shall not apply to municipalities which have a population of four hundred and fifty thousand or more and which have established procedures which pertain to the subject matter of this Paragraph . . .
LA. REV. STAT. § 32:1714(2) (West 2000). Under this section, the State has expressly delegated to the City the authority to regulate the safety of tow truck activities.
In addition, the DOT has interpreted (c)(2)(A) to exempt stateand local regulations from preemption. See Ace, 171 F.3d at 776, citing U.S. DEP'T OF TRANSP., INTRASTATE TRUCKING DEREGULATION. Although the Court is not bound by the DOT'S opinion, the Court's reading is bolstered by the DOT'S concurrent view. See id.; citing Chevron, U.S.A., Inc. v. Nat'l Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82 (1984) (holding that in reviewing agency's construction of statute, when text of statute is ambiguous, court must not substitute its own interpretation for reasonable interpretation by agency charged with statute's administration); accord Texas Savings Community Bankers Ass'n v. Fed'l Housing Finance Bd., — F.3d —, 2000 WL 45521 at *2 (5th Cir. Jan. 20, 2000)
It is true that in Foster, another section of this Court ruled that certain portions of the Louisiana statute, including a wreck chasing provision, were preempted by federal law. See Foster, Civ. No. 99-539, Order and Reasons (Feldman, J.). The Court in Foster noted that under Louisiana law, invalid statutory provisions are severable, and therefore found that only those challenged provisions of the statute (rather than the entire statute) were preempted by federal law. The Foster decision did not apply to the delegation provision of the State statute; nor did it construe this municipal ordinance. This Court acknowledges; however, that its decision is inconsistent with Foster. This follows because if this Court did not implicitly find that the State could properly limit wreck chasing under the safety exemption, it could not find that the State could delegate this authority to the City of New Orleans.
In sum, this Court finds that 49 U.S.C. § 14501 (c)(2)(A) does not limit the authority of Louisiana to delegate its towing regulatory authority to municipalities. Therefore, §§ 162-1011 and 162-1012 are exempt from preemption under 49 U.S.C. § 14501 (c)(2)(A), and plaintiffs' motion for permanent injunction is denied. Because the Court finds that the provisions are not preempted, it is unnecessary to address the City's Tenth Amendment argument.
D. Overbreadth
Although plaintiffs did not allege a Due Process violation in their complaint, they argue in their reply memorandum that the contested provisions of the ordinance offend the Due Process Clause because they are unconstitutionally broad. Plaintiff s rely on City of Chicago v. Morales, for the proposition that a legislature may not simply "set a net large enough to catch all possible offenders." 527 U.S. 41, 119 S.Ct. 1849, 1861 (1999). Under the overbreadth doctrine, courts can invalidate laws that facially inhibit the exercise of constitutional rights, "if the impermissible applications of the law are substantial when judged in relation to the statute's plainly legitimate sweep." Id. at 1857, internal quotation marks omitted. Plaintiffs assert that the provisions at issue were confected to limit and therefore impermissibly affect the due process rights of towing businesses to operate and make a living. This Court does not agree. In its analysis of whether the provisions were, in fact, safety related, and thus exempt from preemption under the safety regulatory exception in subsection (c)(2)(A), this Court found that the provisions were enacted in the interests of public safety, with only incidental economic effects. Although the provisions prohibit wreck chasing and the use of police monitoring devices, they do not prevent tow truck businesses from operating or earning a living, nor were they aimed at doing so. In fact, the City Council voted to enact the provisions at issue in lieu of an arguably more restrictive solution in which the City would contract with one towing company to the exclusion of all others. Thus, in enacting these provisions, the City attempted to meet its public safety goals while minimally impacting the tow truck industry. "Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort." Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 2175 (1998), internal quotation marks omitted, quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916 (1973); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 603 (1990) (noting that "facial challenges to legislation are generally disfavored"). The Court finds that the provisions are not unconstitutionally broad and that facially invalidating them is unwarranted.
III. Conclusion
For the foregoing reasons, this Court finds that the provisions of the ordinance at issue are not preempted, and plaintiffs' motion for permanent injunction is denied.
New Orleans, Louisiana, this 15th day of February, 2000.