FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 AUGUST 14, 2003 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-10539

Non-Argument Calendar

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D. C. Docket No. 02-20877-CV-PCH

GALACTIC TOWING, INC., 

a Florida corporation,

Plaintiff-Appellant,

versus

CITY OF MIAMI BEACH, 

a municipal corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 14, 2003)

Before BARKETT, HULL and RONEY, Circuit Judges.

PER CURIAM:
1

 The Interstate Commerce Act, as amended by the Federal Aviation Administration

Authorization Act of 1994, 108 Stat. 1606, and the ICC Termination Act of 1995, 109 Stat. 899,

states in relevant part:

2

Plaintiff Galactic Towing, Inc. (“Galactic”), a motor vehicle towing operator,

filed a complaint seeking declaratory and injunctive relief to enjoin enforcement of

certain sections of Defendant City of Miami Beach’s (“City”) Municipal Code

regulating motor vehicle towing. The district court denied Galactic’s requested relief

and granted summary judgment in favor of the City. The principal issue in this case

is whether the City’s regulations fall within the public safety exception to the

preemption contained in The Interstate Commerce Commission Termination Act

(“ICCTA”), as amended, 49 U.S.C. § 14501(c)(2)(A). After de novo review, we

affirm the district court’s ruling that the City’s challenged motor vehicle towing

regulations fall within the public safety exception to ICCTA, as recently interpreted

by the Supreme Court in City of Columbus v. Ours Garage & Towing Serv., Inc., 536

U.S. 424 (2002), and thus escape federal preemption. See Galactic Towing, Inc. v.

City of Miami Beach, ___, F. Supp.2d ___, (S.D. Fla. Mar. 25, 2003).

Section 14501(c) of ICCTA, as amended, preempts provisions by a “State [or]

political subdivision of a State . . . related to a price, route, or service of any motor

vehicle carrier . . . with respect to the transportation of property.” 49 U.S.C. §

14501(c) (2000).1 ICCTA, however, provides an exception to this general federal
(1) GENERAL RULE. – Except as provided in paragraphs (2) and (3), a State, political

subdivision of a State, or political authority of 2 or more States 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.

(2) MATTERS NOT COVERED. – Paragraph (1) –

(A) shall not restrict the safety regulatory authority of a State with respect to motor

vehicles ... 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. § 14501(c) (2000).

3

preemption, directing that it “shall not restrict the safety regulatory authority of a

State with respect to motor vehicles.” Id. § 14501(c)(2)(A).

In Ours Garage, a similar vehicle towing case, the Supreme Court recently

interpreted the preemptive force of § 14501(c) of ICCTA. The Court first noted that

although § 14501(c) generally preempts state regulation of the “price, route, or

service of any motor carrier,” the statutory exception to this preemption for “safety

regulatory authority of a State with respect to motor vehicles” saves both state and

municipal regulations falling within its reach from federal preemption. Ours Garage,

536 U.S. at 428. The Court reasoned that “Congress’ clear purpose in §

14501(c)(2)(A) is to ensure that its preemption of States’ economic authority over

motor carriers of property, § 14501(c)(1), ‘not restrict’ the preexisting and traditional

state police power over safety.” Id. at 439. As such, the Court stated that any local

regulation of “prices, routes, or services of tow trucks that is not genuinely responsive

to safety concerns garners no exemption from § 14501(c)(1)’s preemption rule.” Id.
2

Sec. 106-264. Permit required.

(a) No business enterprise shall engage in the business of recovering, towing, removing and

storing of vehicles parked on private real property and parked without the permission of the

owner of the private real property unless such business enterprise shall first apply for and obtain,

and subsequently maintain in unrevoked status, a permit issued pursuant to this article.

(b) The requirement for a permit described in subsection (a) of this section is a requirement

separate and apart from and in addition to any county or city requirements for occupational

licenses. The required permit is a regulatory permit and not a revenue-generating permit.

Sec. 106-266. Permitting of business enterprises.

(a) Application. All business enterprises desiring to obtain an initial permit or renew a

previously issued and unrevoked permit shall submit an application in writing to the city manager

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at 442. The Court expressed no opinion as to the scope of local regulations that are

indeed “genuinely responsive” to public safety concerns.

Galactic makes essentially three arguments on appeal. 

1. Whether the Ordinance is Genuinely Related to Safety.

Galactic argues that the district court erred by ruling that the challenged

sections of the City’s vehicle towing ordinance fall within § 14501(c)(2)(A)’s public

safety exception because the record fails to support a finding that the ordinance is

“genuinely responsive” to safety concerns, as required by Ours Garage.

Galactic contends that certain sections of the City’s non-consensual towing

ordinance, embodied in §§ 106-264 (towing permit), 106-266 (business application

requirement), 106-268(a)(1) (written authorization for tow), and 106-268(a)(5)

(storage within city limits) are not genuinely responsive to the City’s safety concerns.2
or his designee on forms prescribed by the city manager.

* * *

(b) Standards for issuance of a permit. The city manager or his designee shall approve the

application for issuance or renewal of a license hereunder where he finds:

(1) That the application has been fully completed and submitted;

(2) That the initial application or renewal application fee has been paid;

(3) That proof of insurance, as required in section 106-263, has been met; and

(4) That the applicant has been subject to a complete background investigation as it affects the

towing industry, conducted by the chief or his designee and it has been determined by the chief

that:

a. The applying business enterprise, if a corporation, does not have as an officer or

director, a person who is or was an officer, director, partner or sole proprietor of a

business enterprise which has a currently suspended permit or has had its permit revoked

within five years of the date of application;

b. The applying business enterprise, if a partnership, does not have as a partner a person

who is or was an officer, director, partner or sole proprietorship of a business enterprise

which has a currently suspended permit or has had its permit revoked within five years of

the date of application;

c. The applying business enterprise, if a sole proprietorship, does not have as the sole

proprietor a person who is or was an officer, director, partner or sole proprietor of a

business enterprise, which as a currently suspended permit or has had its permit revoked

within five years of the date of application;

d. The permit is not revoked or currently under suspension; or

e. No fraud or willful and knowing misrepresentation or false statement was made in the

application.

Sec. 106-268. Additional requirements.

(a) No business enterprise issued a permit under this article shall do any of the following:

(1) Recover, tow, remove or store a vehicle except upon the express instruction and written

authorization demonstrating a signature of the property owner or agent to the business enterprise

5
requesting the tow or removal. Such agent shall not be an officer or employee of the business

enterprise. No such instruction shall be considered to have been given by the mere posting of the

notice as required by subsection (d)(1) of section 106-269. No such instruction shall be

considered to have been given by virtue of the mere terms of any contract or agreement between

a business enterprise and a property owner. No such instruction shall be considered to have been

given where the instruction occurs in advance of the actual unauthorized parking of the vehicle. 

No such instruction shall be considered to have been given where the instruction is general in

nature and unrelated to specific, individual and identifiable vehicles which are already

unauthorizedly parked.

* * *

(5) a. For the first 48 hours, store or impound a towed vehicle unless the towed vehicle is stored

or impounded within the confines of the city at an authorized storage facility.

6

The district court carefully considered the challenged sections of the City’s

vehicle towing ordinance, identifying and discussing analogous towing ordinances

where courts held them to fall under the purview of § 14501(c)(2)(A). See Galactic

Towing, Inc. v. City of Miami Beach, ___ F. Supp.2d ___, (S.D. Fla. Mar. 25, 2003).

The record supports the district court’s ruling that the challenged sections of

the City’s ordinance are “genuinely responsive” to public safety concerns. Several

analogous cases have upheld similar city ordinances. The Fifth Circuit, on remand

from the Supreme Court subsequent to its Ours Garage decision, recently denied a

tow truck company’s preemption challenge to a similar city ordinance regulating

vehicle towing, holding that the ordinance fell under the purview of §
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14501(c)(2)(A)’s public safety exception. See Cole v. City of Dallas, 314 F.3d 730

(5th Cir. 2002) (regulation requiring criminal history included within safety

exception). Likewise, a Washington appellate court recently upheld a similar

preemption challenge under § 14501(c). See Fife Enterprises v. Washington State

Patrol, 113 Wash. App. 1011 (Wash. App. 2002) (unpub.) (licensing and record

keeping requirements exempt under safety exception); see also Ace Auto Body &

Towing, Ltd. v. City of New York, 171 F.3d 765 (2d Cir. 1999) (towing ordinance

requiring, inter alia, licensing, display of information, reporting, record keeping,

disclosure of criminal history, insurance, posting of bond by towing companies, and

maintaining local storage and repair facilities, fell within the safety exception); Hott

v. City of San Jose, 92 F. Supp.2d 996 (N.D. Cal. 2000) (holding that regulations

requiring liability insurance, criminal background check, displaying of information,

reporting, and record keeping were all within scope of safety exception).

The district court did not err in holding the challenged sections of the City’s

vehicle ordinance to fall under the purview of the § 14501(c)(2)(A)’s public safety

exception.

2. Proof of Legislative Intent.
8

Galactic argues that, because the City offered “no direct proof” of the City’s

legislative intent in the implementation of the challenged ordinances, the district court

erroneously granted the City’s motion for summary judgment. 

There is direct evidence of the City’s legislative intent in the implementation

of the challenged ordinances to support the district court’s grant of the City’s motion

for summary judgment. The text of the challenged ordinance specifically states:

The city commission finds and determines that the

unauthorized parking of vehicles that cannot be removed

constitutes a public nuisance and public emergency

effecting the property, public safety and welfare of the

citizens and residents of the city.

Miami Beach Code § 106-257. The text of the ordinance itself therefore expressly

articulates a public safety purpose. Furthermore, the City offered affidavits from two

City officials, the Assistant City Manager and the Assistant Chief of Police. Both

affidavits contained relevant information on how the challenged sections of the City’s

vehicle towing ordinance affect safety concerns. Although Galactic had the

opportunity to refute those affidavits in the district court, it failed to do so. Instead,

it rested on its pleadings. See Valdivieso v. Atlas Air, Inc., 305 F.3d 1283, 1284 (11th

Cir. 2002) (“The non-moving party, however, may not rest on mere allegations or

denials of the adverse party’s pleading when a motion for summary judgment is made

and supported by affidavits . . ..”) (internal quotation and citation omitted).
9

3. Failure to Strike Affidavits.

Galactic argues the district court abused its discretion by denying Galactic’s

motion to strike affidavits from two City officials because they consisted of

“opinions, mere speculation, and fabricated claims.” There was no abuse of

discretion by denying Galactic’s motion to strike these affidavits and admitting the

same. See Telfair v. First Union Mortgage Corp., 216 F.3d 1333, 1343 (11th Cir.

2000) (no abuse of discretion in denying motion to strike affidavits).

AFFIRMED.