### 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

________________________ No. 03-10539 Non-Argument Calendar

________________________ D. C. Docket No. 02-20877-CV-PCH GALACTIC TOWING, INC., a Florida corpora

tion, Plaintiff-Appel lant,

versus CITY OF MIAMI BEACH, a municipal cor

poration, Defendant-Appellee.

________________________ Appeal from the United States District Court for the Southern D istrict of Florida

_________________________ (August 14, 2003) Before BARKE

TT, HULL a

nd RONEY, Cir

cuit 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 relevan

t part: 2 Plaintiff Galactic Towing, Inc. (“Galactic”), a motor vehicle

towing operator, filed a compla

int seeking declara

tory and injunc

tive relief to enj oin enforceme ntof certain sections of Defen

dant City of Mia

mi Beach’s

(“Cit y”) Municipal Code regulating

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

relief and granted summ

ary judgm

ent in favor of the C

ity. The prin

cipal issue in this ca

se is whether the City ’s regulations fa ll within t

he public safety

exception to the preemption

contained in The Interstate Commerce Comm ission Terminat ion Act (“ICCTA”), as amended, 4 9 U.S.C. § 14501(c)( 2)(A). After de novo review, we affirm the district court’ s ruling that the City ’s challe nged motor vehicle t

owing regulationsfall within the public safety exception to ICCTA, as recently interpreted by the Supreme C ourt in City of Columbus v. Ours Garage & Towing Serv., Inc. , 536 U.S. 424 (2002), and thus es cape federal pre emption. See G alac tic Towing, Inc. v. City of Miami Beach , ___, F. Supp.2d ___, (S.D. Fla. Mar. 25, 2003). Section 14501(c) of ICCTA, as amended, preempts provis ions b y a“State [or] political subdivision of a State . . . related to a price, route, or ser vice of any

motor vehicle carrier . . . wi th resp ect to the transport ation of property.” 49 U.S.C. § 14501(c) (200 0 ). 1 ICCTA, however, provides an exception to this general federal(1) GENERAL RULE. – Except as provided in paragra phs (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 re lated to a price, rou te, or s ervi ce of

any m oto r car rie r .. . wi th r esp ect to t he t rans por tat ion of p rop ert y. (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 carrie rs with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insura nce authorization . . .. 49 U.S.C. § 14501(c) (2000). 3 preemption,

directi n g 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 vehicl e to wing case, the Su preme Court r

ecently interpreted

the preemptive force of § 14501(c) of ICCTA. The Court first noted that altho ug h § 14501(c) generall y preempts

state regulation of

the “price,

route, or service of any

motor carrier,” the

statutory exce

ption to this preem

ption for “safe

ty regulatory

au thor ity of a State w

ith respect to m

otor vehicles” save s both state and municipal regulations falling w ithin its reach from f

ederal preem

ption. Ours Garage , 536 U.S. at 428. The Court reasoned that “ Congress’ clear

purpose in § 145 01(c)(2 )(A) is to ensure that its preemption of States’ economic authority over motor carriers of prop erty, § 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 servic es of tow trucks tha t is not genuinely r

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

Sec. 106-264. Pe

rmit required. (a) No business enterprise shall engage in the business of recovering, towing , removing and storing of vehicles parked on private real property a nd parked without the permission of the owner of the private real property unless such business enterprise sha ll 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 re

quired permit is a r

egulatory permit and not a re

venue-gener

ating permit. Sec. 106-266. Pe

rmitting 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 4 at442. The Court expressed no opinion as to the scope of local regulations that are indeed “genuinel

y responsive” to p

ublic safety co

ncerns. Galactic makes essentially thr ee arguments on appeal. 1. Whether the Or

dinance is Genuinel

y Related to Sa

fety

. Galac ti c argues that the district court erred by ruling that the challenged sections of the City’s

vehicle towing ordin

ance fall within § 1 4501(c)(2)(A)’ s public safety except ion because the record fails to support a finding that t

he ordinance is “genuin ely resp onsiv e” to sa fety con cerns, a s requi red by Ours Garage

. Galactic contends that certa

in sections of the Cit

y ’s non-consensual towin g ordinance, embodied in §§ 106- 264 (towing permi

t), 106-266 (business

application requirement), 106-268(a)(1) (w ritten authorizatio

n for tow), and 106-

26 8( a)(5) (storagewithin city lim

its) are not genuinel

y resp onsive to the City’s sa fety concerns. 2or his designee on forms prescribed by the city manager. * * * (b) Standards for issuanc e of a permit. The city manager or his designee shall approve the application for issuance or rene wal of a license h

ereunder wher

e 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 affec ts the towing industry, conducted by the chie f 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 revoke d within five years of the date of application; b. The applying business enterprise, if a partnership, does not have a s a partner a person who is or was an of

ficer, directo

r, partner or sol

e proprietorship

of a business ente

rprise which has a currently suspended permit or has had its permit revoked within five y ears of the date of application; c. The apply

ing business ente

rprise, if a sole p

roprietorship, do

es 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 revoke d 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. Addit

ional requireme

nts. (a) No busin ess enterpr ise issued a permit un der this art icle shall do any of the fol lowing: (1) Recover, tow, remove or store a vehicle except upon the express instruction and written authorization demo

nstrating a sig

nature of the pro

perty owne

r or agent to the

business enterpr

ise 5requesting the t ow or removal. Suc

h agent shall not b

e 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 betwe en a business enterprise and a property owner. No such instruction shall be consider ed to have been given where the instruction occurs in advance of the actual unauthorized parking of the ve hicle. No such instruction

shall be consider

ed to have been g

iven where the in

struction is gene

ral 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 i mpo und ed w ith in t he co nfi nes of t he ci ty at an au tho riz ed s tor age faci lit y.

6 The district court car

efully consider

ed the challenge d section s of the Cit y’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 sup ports the district c ourt’s ruling that the challenged s ections of the City’s ordinance are “genuinely responsive” to public safety concerns. Several analogous cases have upheld sim ilar city ordina

nces. The

Fifth Circuit, on

remand from the Supreme C ourt subsequent to its Ours Garage decision, recentl

y denied a towtruck company ’s preempti on challenge to a sim

ilar city ordina

nce regulating vehicle towing, holding that the ordinance fell under the p u rview of §7

14501(c) (2)(A)’s public safety exceptio n. See Cole v. City of Dallas , 314 F.3d 730 (5thCir. 2 002) (regu latio n requ iring crimi na l history included within safety exception). Likewise, a Washington appellate court recently upheld a similar preemption

challenge under § 14 501(c). See Fife En terprise s v. Washington Stat

e Patrol , 113 Wash. App. 1011 (Wash. App.2002) (un pub .) (licensing and record keepingrequirements

exempt under sa

fety exception) ; see also Ace Auto Body & Towing, Ltd. v. C

ity of New

Yo rk , 17 1 F.3d 765 (2d Cir. 1999) (towing ordinance requiring, inter alia , licensing, d ispla y of inform ation, reporting,

record keeping, disclosure of crimin al hist ory, insurance, posting of bond by tow ing companies,

and maintaining

local storage

and repair facili

ties, fell within the safety

exception); Hott

v. City of San Jose , 92 F. Supp.2d 996 ( N.D. Cal. 200 0) (holding that regul ation s requiring liability insurance, criminal

background check, d

isplaying of infor

mation, reporting, and record keeping were all within scope of safety exception). The district court did not err in holding the cha lle nged section s of the Cit y’s vehicl e ordinance to fall under the purview of the § 14501(c)(2)(A)’s public safet y exception. 2. Proof of Legislat

ive Intent

.8

Galactic argues that, because the City offered “no direct pro of” of the City’s le gislative intent in the implementatio n of the challenged o rdinances, the district cour t erroneously granted th e City’s motion for summary judgment. There is direct e vidence of the City’s legislative intent in the implem

entation of the challenged ordin

ances to support the

district court’s

grant of the City ’s motion for summa

ry judgme

nt. The text of the

challenged ordinance specifically states: The city co mm issio n finds and determ ines that the unaut horize d parking of vehicles that cannot be removed constitutes a public nuisan ce a nd public emergency effecting the property, public safe ty and we lfare o f the citize ns and r esiden ts of th e city. Miami Beach Code § 106-257.The text of the ord i nance its elf therefore ex pressly articulates a public safety purpose. Furthermore, the City offered affid avits from two City of fici als, the Assistant

City Manager a

nd the Assistant Chief of Police. Both affidavitscontained relevant informati on on

how the cha llenged s ections o f the City’s vehicle towing ordinance af fect safety concerns . Although Galactic had th e opportunity

to refute those aff

idavits in the distric

t court, it failed

to do so. Instead, itrested on its plead ings. See Valdivieso v. Atlas Air, Inc. , 305 F.3d 1283, 1284 (11th Cir. 2 002) (“The non-

moving party

, however, m

ay not rest on m

ere allegations or denials of the adve rse party’s pleading when a m otion for summ

ary judgm

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

3. Failure to Strike Affidavits

. Galactic argues the dis trict court abus ed its dis cretion by d enying Galac tic’s motion to strike af

fidavits from t

wo City offici

als because they

consisted of “opinions, mere speculation, an d fabricated claim s.” There was

no abuse of discretion by denying G

alactic’s m

otion to strike

these affidavits and adm itting the

s ame. See Telfair v. F

irst Union Mortgage Co

rp. , 216 F.3d 1333, 1343 ( 11 th Cir

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