F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C A L I F O R

N I A T O W T R

U C K A S S O C I A T I O N , Plaintiff-Appellant

,

v

.

C I T Y A N D C O U N T Y O F S A

N F R A N C I S C O , Defendant-Appellee

. N o. 13-15614

D.C. No. 3:10-cv-03184- CRB

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Charles R. B rey er, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 11, 2015—San F rancisco California

F iled Aug ust 13, 2015

B efore: Michael Daly

Hawkins, Richard A. Paez

, and Marsha S. B erz on, Circuit J udg es.

Opinion by J udg e B e rz onCTTA V

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SUMMARY *

F ederal Aviation Adm inistration Authorization Act /

P reem ption

The panel affirmed in part and reversed in part the district court’s summary judg ment, which followed this court’s earlier decision vacating

the district court’s partial summary judg ment and remanding

, i n a n action c halleng ing San F rancisco ordinances that comprehensively reg ulate the towing industr y w i thin the city and provide a number o f conditions and requirements concerning towing permits.

Tow car firms are “motor c a r r i e rs” under the F ederal Aviation Administration Authoriz a t i o n Act, and the San F ran c i s co ordinances, known as the “Permit Scheme,”
g enerally relate to a p r ice, r oute, or service of a motor c arrier. The panel held, therefore, that Permit Scheme p ro v isions

w e r e preempted by the F AAAA unless they fell w ithin th e F AAAA’s saving s clauses, which included a “safety

ex c e ption.”

Ag reeing with the Second Circuit, the panel held that the safety e x ception covered reg ulations related both to the safety of the tow trucks t h e m s e l v e s and to the safety of the people whose vehicles are towed. The panel held that Permit Scheme’s permit r equirements fell within the s a f ety

ex c e ption, as d id multiple other Per mit Scheme provisions, including permit application requirements, permit fee a nd penalty provisions, a

n d recordkeeping and brochure

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.CTTA V

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requirements. The panel also held that possession and display requirements w ere not subject to preemption. F inally

, t h e panel held that the Permit Scheme’s complai n t sy stem requirement fell within the safety ex ception, but its business plan requirement did not and therefore was preempted. The panel r emanded the case t o t h e district court f or f urther proceeding s.

COUNSEL

P at rick J

. W halen, T h e L aw Offices of B rooks Elliso n , Sacramento, California, for Plaintiff-Appellant.

W a y ne Snodg rass (arg

ued), Deputy City Attorney ; Dennis J

. Herrera, City Attorney ; Vince Chhabria, Deputy City Attorney
, San F rancisco, California, for Defendant-Appellee.

OP INION

B ERZ ON, Circuit J udg e :

The City a

nd County of San F rancisco requires tow truck dr i v e r s and towing firms to obtain permits to operate a nd conduct business within San F r a n cisco. T he City enacted two ordinances, Articles 3 0 and 30.1 of the San F rancisco Police Code (the “Permit Scheme” )

, which comprehensively
reg ulate the towing industry within the city a n d provide a number o f conditions and requirements concerning the towing permits.

The Cal i fornia Tow Truck Association (“CTTA”) challeng ed the Permit Scheme, c o n tending that it isCTTA V

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preempted by the Fe d e r al A viation Administration Authoriz ation Act of 1 994, 49 U.S.C. § 1 4501 (“F A AAA” o r t h e “Act”). A fter the district court initially g ranted p arti al

s u m m ary judg ment, the parties appealed to this court. S e e Ca l

. Tow Truck Ass’n v. City & Cnty. of S.F.
, 693 F .3 d 8 4 7 (9th Cir. 2012) (“ CTTA I ”). W e held that the distri c t c ourt did n ot analy

z e the Permit Scheme a s r e q uired b y our precedent, and so vacated the judg ment and r emanded for the required provision-by

- provision analy sis. See id. at 866.

F ollowing remand, the district c ourt upheld nearly a ll o f
t h e Permit Scheme, holding some provisions outside t h e ambit of the Act’s ex press preemption clause, 49 U .S.C. § 1 4501(c)(1 ), and others covered by the Act’s saving s clauses, id. § 14501(c)(2)(A)–(C). I n particular, the district

co u rt determined that many of the provisions fell within the F AAAA’s “safety ex ception,” id. § 14501(c)(2)(A), because they are “g e nuinely responsive to safety concerns.” C i t y of Columbus v. Ours Garage & W recker Serv., Inc.
, 5 36 U.S. 424, 442 (2002). The district court thus gr an t e d the City ’s cross-motion f

or s u m mary judg ment, from which CTTA appeals. W ith the ex ception of t h e challeng e to the Permit Scheme’s business plan requirement, we affirm.

I

.

A.

Pursuant to i t s a uthority under California law, see Cal. Veh. Code § 21100(g )(1), the City enacted the Permit Scheme. Article 30 of the Permit Scheme reg ulates “tow c ar drivers,” S.F

. Police Code § 3000 et. seq. , a n d A rticle 30.1CTTA V

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reg ulates “tow ca r f

i rms,” id. § 3050 et seq. 1 “Tog ether, Articles 30 and 30.1 s et forth a comprehensive reg ulatory
reg ime requiring tow truck drivers and towing firms to obtain
p e rmits to operate and conduct b usiness in San F rancis c o

. ” CTTA I
, 693 F .3d at 851.

Article 30 provides that “[ n] o person shall drive o r operat e a tow car within the City

. . . without first obtaining

a permit from the Chief of Police

. . . . ” S

. F

. Police Code § 3000. To obtain a p ermit, tow car drivers must submit identify ing information, a nd d isclose any criminal arrest h i s t ory

. See id. § 3002. Along with the applicatio n , a p p l i c a n t s m u s t s u b m i t f i n g e r p r i n t s , p a s s p o r t

- s i z e photog raphs, a letter from a n employ e r, and a f

iling fee. Id. § 3003. A ft e r receiving an application for a permit, “[ t] he Chief of Police shall

. . . make an i n v e s t i g ation without
unnecessary delay

. . . and g rant such application,” unless the applicant was convicted of violating

, or acted in violation of, certain e numerated criminal statutes, or falsified information on the application. Id. § 3004.

The tow car driver must keep the p ermit, which contains the nam e s a n d r esidences of the driver and e mploy er a nd

1 T h e P erm it Sch em e ad o p ts th e Calif o rn ia V eh icle Co d e’ s d ef

in itio n of
to w car: “ [A ] m o to r v eh icle w h ich h as b een altered o r d esig n ed an d
eq u ip p ed f

o r, an d p rim arily u sed in th e b u sin ess o f

, tran sp o rtin g v eh icles b y m ean s o f a c r a n e , h o ist, to w b ar, to w lin e, o r d o lly o r is o th erw ise
p rim arily u sed to ren d er assistan ce t o o t h e r v eh icles.” Cal. Veh

. Co d e § 6 1 5 (a); s ee S.F. P o lice Co d e § 3 00 1

.

A “t o w car f

irm ” is d ef

in ed as “ [a]n y p erso n , f irm

, p artn ers h i p , asso ciat i o n , co rp oratio n , o r an y o th er g ro u p

. . . en g ag ed in th e b u sin ess

o f t ran sp ortin g , r em o v in g , o r sto rag e o f m o to r v eh icles, i n clu d in g th e

o w n er/o p erato r o f

an y to w car as h erein d ef

in ed .” Id

. § 3 0 5 1.CTTA V

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other identify ing information, in “his immediate possession
at all times while d

riving or oper a t i n g a tow car and shall

ex h ibit such permit on d e m a n d of any peace officer.” Id. §§ 3006, 3007. The permits last for one y ear, are renewable
upon pay ment of the annua l l i ce n se fee, id. § 3008, and can be revoked after a hear i n g i f t h e Chief of Police “finds that
g rounds ex ist which would h a v e constituted just cause for refusal to issue such permit,” id. § 3011. Driving or operating

a tow car within the City without a permit, or not maintaining possession of a permit while dri v i n g or operating a tow car, is a misdemeanor. Id. § 3012.

The Permit Scheme’s requirements for tow car firms are similar to those for tow car drivers. As w ith tow car drivers, “[ n] o person shall eng ag e in o r conduct b usiness as a tow c ar firm within the City

. . . without first obtaining a permit from the Chief of Police

. . . . ” I d

. § 3050. Applicants for such permits must provide not only identify ing information about themselves and their business, id. § 30 5 2 ( 1)–(2), but also additional information, including : details o f “ every tow c ar that will be operated by the tow car f irm,” id. § 3052(3); “[ a] description o f the applicant’s busin ess plan, and proposed services to be provided, including

. . . a sy stem for handling complaints that is acceptable to t he Chief of Police,” id. § 3052(4); the name and p er m it number of all tow c ar operators employ ed by the firm, id. § 3052(5); evidence of a minimum level of insurance, id. § 3052(6); and a “ record o f all crimes of which the appli c a n t has been convicted, plead[ ed] g uilty

, or plead[ ed] no contest,” id. § 3052(7). L ike
tow car driver a

pplicants, tow car firm applicants must submit fing erprints, photog raphs, and a filing fee. Id. § 3053.

A tow car firm permit sha ll b e g ranted unless the Police Department f

inds that the applicant, a mong other thing s, doesCTTA V

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not possess a minimum level of insurance, does not possess requisite tow car equipment, or has been convicted of c ertain crimes. I d

. § 3 054. Every firm issued a permit must display
t h e permit “in a conspicuous place within the tow car f i r m business address, so that the [ permit] may be readily seen b y p e r s o ns entering the premises.” Id. § 3055. The Police Department may suspend or r evoke a tow car firm permit for
any of the g rounds listed in § 3054, as well as for additional
reasons, including failing t o m a i ntain required levels o f insurance a

nd e mploy ing a tow car operator who lacks a valid operating permit. Id. § 3056.

L ike the individual tow car d r iver permits, a tow car f

irm
p e r m i t lasts for a y ear and is renewable upon pay ment of a n annual license fee. Id. § 3 0 62. Article 30.1, however, contains some additional r e q u i rements for tow c ar f irm permit-holders. F or ex ample, tow ca r firms a re r equired
reg ularly to submit proof of insurance a n d e v i dence o f
reg istration, a

nd must notify the Polic e Department of the number of t o w vehicles or chang es in tow car drivers’ employ ment status. Id. § 3058. Additionally

, “[ t] ow car f irm vehicles may be inspected for cod e a n d safety v iolations b y any peace officer.” Id. § 3059. T o w car firms are also required to maintain r ecords of each vehicle towed for three
y ears and to make such records av a i l a b l e for inspection b y any peace officer. Id. § 3060. Conducting business without

a t o w car firm permit or failing to display the permit at t h e tow car firm business is a misdemeanor. Id. § 3064.

The San F r ancisco B oard of Supervisors amended Article 30.1 in 2009 to inc l u d e a b rochure requirement. See id. § 3055.2(c). W hen a vehicle has b een towed, tow c ar firms
must “pro v ide information to towed-vehicle o wners b y display ing and making a v ailable a b rochure ‘in a c onspicuousCTTA V

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place in the location where a vehicle o wn e r m ust come to reclaim their towed vehicle.’” CTTA I
, 693 F .3d a t 854 (quoting S.F

. Police Code § 3055.2(c)). Th e b r ochure, developed by the City ’s p olice department, consists of “a concise summary of California law, including the max imum
rate that c an be leg ally charg e d for a p rivate property tow a nd the r ig hts and responsibilities of all p arties who participate in towing from private property

. . . . ” S.F. Police Code § 3055.2(b). Non-compliance with this requirement trig g ers an administrative penalty of $500. Id. § 3055.2(f).

W h en it promulg ated the brochure requirement in 2009,
t h e Board of Supervisors made a number of leg islative finding s, including :

(i) that there are frequent incidents of illeg al
t owing from private property in S a n F rancisco; and

(ii) that there is a sig nificant risk to the safety of r esidents and visitors when illeg a l towing from private property

occurs at nig ht; and

(iii) that there is a r isk to p u blic health a

nd safety when the vehicles of senior citiz ens a nd
persons with disabilities a r e illeg ally towed from private property ; and

(iv) that illeg al towing from private property affects vulnerable populations when people o f limited eco n o mic means are required to pay hundreds of dollars to recover their vehicle, o r

are subjected to d e f

iciency claims b y collection ag encies if they could not a fford toCTTA V

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pick up their v ehicle even thoug h the vehicle was illeg ally

towed; and . . .

(ix ) that c onsistent adherence to leg al towing practices w ill substantially increase the quality of life for residents and the ex perience of visitors to San F rancisco.

S.F

. Poli c e C o d e § 3 055.2(a). B oth Articles 30 and 30.1 include severability c lauses, providing that if any part is “held
to be unconstitutional or invalid,” such a decision “shall not affect the validity or effectiveness of the remaining p ortions.” Id. §§ 3013, 3065.

B

.

I n J u ly 2010, CTTA, a n onprofit org aniz ation representi n g more than 1 ,000 towing companies doing business in California, filed a complaint ag ainst the C i t y in San F ranci s c o Superior Court. According to CTTA, its members had been “harassed and subje c t to citations, f ines, and in some cases the impound of the i r t o w t r u c k

. . . for failing to obtain a permit.” Moreo v e r , it alleg ed, “[ t] he ability of CTT A m e m b ers to c onduct their business is adversely affected by the San F ra n c isco ordinance, because it subjects t h em t o g reat uncertainty as to whether they a re able to conduct b u s iness in, around, and throug h the City

. ” Several owners a

nd operators of tow car firms also declared that the Permit S c h eme has impacted their routes a nd services, and caused them to incur sig nificant costs.

I n its a ction, CTTA soug h t, among other thing s, a declaration that the Perm it Scheme is preempted by federal law and an injunction prohibiting the City from enforcing itsCTTA V

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provisions. A fter the City removed the c ase to federal court, the parties f

iled cro s s

- m o tions for summary judg ment. A s relevant here, CTTA arg ued that the Permit S c h e m e is preempted by the F AAAA’s ex p ress p r eemption clause, which provides: “[ A ] Stat e

. . . may not enact or enforce a law, reg ulation, o r other provision having the force and effect of law related to a price, r oute, or service of any motor carrier

. . . with respect to the transportation of property .” 49 U .S.C. § 14501(c)(1).

Conceding that the Pe rm i t Scheme “relate[ s] to” the “price” and “service” of a towi n g company , and hence of a “motor carrier,” the City arg ued that the Permit Scheme is not preempted because it falls w ithin the Act’s saving s clauses

— in particular, the Act’s “s a fety ex ception.” The safety

ex c e ption provides that the Act’s ex press preemption clause “shall not restrict t h e s a fety reg ulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). The City emphasiz e d that the reg

ulations were motivated b y safety concerns, pointing in p articular t o a declaration b y Serg e ant W illiam Cog g an, the Commanding Officer of the San F rancisco Police Department’s Permit Section. Cog g an

ex p lained that “corruption and c riminal activity pervade the [ towing ] industry ,” leading t o “[ i] mproper conduct” such a s “towing vehicles illeg ally ; overcharg ing people whose vehicles ar e t o wed; outrig ht stealing towed vehicles; operating tow trucks i n an unsafe manner on the road; stealing merchandise from tow e d vehicles; and causing damag es to towed vehicles.” F urther, Cog g an stated that he

was “aware of instances in which tow opera tors or their employ e es have phy sically or sex ually assaulted p e rsons whose cars h a d been towed.” “[ T] he towing business,” Cog g an d eclared, “by its nature, pres e nts certain dang e rs to the public,” as “when a person discovers that her car has beenCTTA V

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towed, she is sometim e s l eft stranded in a dang erous location.”

The d istrict court initially held that the Permit S c h eme

was preempted to the ex tent it applied to companies a nd drivers that eng ag e solely in “consensual” tows, as well as to those merely “pas s i n g throug h” San F rancisco. CTTA I
, 693 F .3d a t 856–57. 2 B ut it a lso held that the Permit Scheme

was n ot preempted as applied to companies and drivers that
eng ag e in “nonconsensual tows” in the City

. I d. The district
court entered judg ment for the City on CTTA’s other federal claims, and remanded CTTA’s state claims to state court. 3

B o th p arties appealed on the F AAAA preemption question. W e c oncluded that the district court e rred in

an a l y zi n g t h e P e rmit Scheme “without specifically addressing its individual provisions,” rathe r t han “on a p rovisionby -provision basis.” CTTA I
, 693 F

. 3d at 850, 860. The district court, w e noted, need not “analy z e every sentence of

2 C o n sen su al to w in g in v o lv es “ an ag reem en t b etw een th e car o w n er an d th e to w tru ck d riv er,” w

h ile “ [ n ] o n

- co n sen su al to w in g in v o l v es to w in g , o f ten f ro m p riv ate lo ts, im

pro p erly o r ‘ i l l e ga l ly ’ p ark ed cars.” C TTA I
, 6 9 3 F.3 d at 8 5 7

. “ In n on

- co n sen su al to w s th e car o w n er ty p ically d o es n o t k n o w th at h is car h as b een to w ed u n t il h e co m es to retriev e i t an d it is n o t th ere.” Id

.

3 A f ter th e S an F ran cisco Su

p erio r Co u rt g ran ted j u dg m en t f o r th e City

o n its s tate p reem

p t io n claim s, CT T A ap p ealed

. T h e Co u rt o f A p p eal

rev ersed

, n o tin g t

h at, u n d er Calif

o rn ia law

, a l o c a l au th o rity m ay “ o n ly licen se an d reg u late to w tru ck serv ices an d driv ers h av in g th eir ‘ p rin cip al
p lace o f b u s i n ess o r em p lo y m en t’ w ith in th e j u risd ictio n o f th e l o cal

au th ority .” Ca l . To w Tru ck Ass’n v. City & Cn t y. o f S.F.
, 2 2 5 Cal. A p p

. 4 th 8 4 6
, 85 8 (2 0 1 4 ). It th u s h eld th e City ’ s reg u l atio n o f to w in g serv ices

an d d riv ers w

h o se “ prin cip al p lace o f

b u s in ess o r em

p lo y m en t is lo cated in an o th er j u

risd i ctio n ” p reem

p ted b y state law

. Id

.CTTA V

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the Permit Scheme

, l i n e b y line.” I d. at 863. B ut “ where a multi-faceted law or r eg ulation is challeng ed as a whole,” we

ex p lained, “it is still necessary to analy z e each of its essential

or major component p arts.” I d. at 860. A lthoug h the district
court applied the correc t test in determining whether the Permit Sch e m e w a s preempted, id. a t 861–62, it did not “analy ze the major provisions identified

. . . and a d dress whether t he Permit Sy stem can survive, after severing provisions, if any

, that are pre-empted,” id. at 863. W e thus vacated and remanded to the district c ourt to conduct the F AAAA preemption analy sis “in the first instance.” Id. 4

After remand

, the p arties ag ain filed cross-motions for
summary judg ment. T h e district court then g ranted summary judg ment to the City as to all but one of the challeng ed provisions of the Permit Scheme, holding that a majority o f the Permit Scheme’s p r ovisions w ere ex empted from
p r eemption by the A ct’s safety

, insurance, and price

ex c e ptions. 5 I n so h olding

, it rejec t e d C T TA’s “ narrow” definition o f “motor vehicle safety

, ” noti n g t h at “the Ninth Circuit has endorsed a concept of mo tor vehicle safety that
encompasses but surely g oes well bey ond the safe

4 CTTA I also h eld th at, as th e “ u n d isp u ted ev id en ce” estab lish ed th at th e City d o es n ot req u i r e t o w t r u c k d riv ers an d to w f irm s to o b t ain a p erm i t j u s t to p ass th ro u g h

, CT T A co u ld n o t s h o w “ a realistic d an ge r o f

en f o rcem en t,” an d th u s lack ed stan d i n g

. 6 9 3 F .3 d at 8 6 5

– 6 6

. A s a resu lt, th e d istrict co u rt lack ed j u risd ictio n t o en j o in th e City f

ro m en f orcin g th e P erm i t Sch em e ag ain st “ to w t ru ck s m erely p assin g th ro u g h San Fran cisco .” Id

.

5 T h e d istrict co u rt co n clu d ed th at sectio n 3 0 5 6 (2 ), w h ich au th o rizes th e Ch ief o f P o lice to rev o k e t h e perm it o f an y to w f

irm th at im

p o ses ch arg es

“ i n ex cess o f th e m ax im

u m rate estab lish ed b y th e [City ] f o r its co n tracted
to w car f irm s,” w as p reem

p ted . T h e City

d o es n o t ap p eal th is h o ld in g

.CTTA V

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performance of towin g s ervices.” The district court also d e t e r mined that several challeng ed provisions — the perm i t display requirement (sections 3007 a nd 3055) and the b u siness plan requirement (section 3052(4)) — w e re n o t

s u bject to the F AAAA’s ex press preemption clause a t a l l

. CTTA appeals from that judg ment.

I I

.

A.

“The principal purpose o f the F AAA A was ‘to prevent States from undermining federal dereg ulation of interstate trucking ’ throug h a ‘patchwo r k ’ of state reg ulations.” D ilts

v. P enske Logistics, LLC , 769 F .3d 637, 644 (9th Cir. 2 014) (quoting Am. Trucking Ass’ns v. City of L.A.
, 660 F.3d 384, 395–96 (9th Cir. 2011), rev’d in part , 133 S.Ct. 2096 (2013)). Toward that end, the F AAAA contains an ex press preemption clause, which provides:

Ex cept as provided in [ the saving s clauses in]
parag raphs (2) and (3)

, a State [ or] political

s u b d ivision of a State

. . . may not enact o r enforce a law, reg ulat i on, or other provision having the force and effect of law related to a price, route, o r service of any motor carrier

. . . .

49 U.S.C. § 14501(c)(1). The parties ag r ee that tow car firms

are “moto r carriers” under the statute, and that the Permit Scheme g enerally “relate[ s] to a price, route, or service” of a motor carrier. See CTTA I
, 693 F .3d at 8 57. According ly

, at least some of the Permit Scheme’s provisions are p reemptedCTTA V

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. O F S A N F R A N C I S C O 14

unless t h ey f

all within the F AAAA’s saving s clauses, 49 U.S.C. § 14501(c)(2)–(3).

Three of those clauses are at issue here. See CTT A I
, 693 F .3d at 857–58. The “safety ex ception” provides that the F AAAA “shall not restrict the safety r eg ulatory auth o r i t y o f

a State with respect to motor vehicles.” 49 U .S.C. § 14501(c)(2)(A). The “insurance ex ception” saves from preemption state laws “relating to insurance requirements a nd self-insuran c e authoriz a tion.” I d. F inally

, the “price

ex c e pti o n” permits “ a State or a political subdivision of a St a t e t o enact or enforce a law

. . . relating to the price o f for-hire motor vehicle transportati o n b y a tow truck, if such transportation is perfor

m e d without the p r ior consent o r authoriz ation of the owner or operator of the motor vehicle”

— i.e., is a nonconsensual tow. I d. § 14501(c)(2)(C). As the district court observed, “[ t] he motor vehicle safety ex c eption is the main, thoug h not ex clusive, f o c u s o f the parties’ dispute.”

I mportantly

, “[ p] reemption analy sis ‘start[ s] with the assumption that the historic police powers of the States were not to b e superseded by the F ederal Act unless that was the clear and ma n i f

est purpose of Cong r ess.’” O urs Garage
, 5 3 6 U.S. at 438 (second a lteration in orig inal) (quoting Medtronic, I

n c

. v. Lohr

, 518 U.S. 470, 485 (1996)). F urthermore, the Act “does not pre-empt state laws that affect rates, routes, o r services in too tenuous, r emote, o r peripheral

a manner.” Rowe v. N.H. Motor Transp. Ass’n
, 552 U.S. 364, 375 (2008) (internal quotation marks omitted).CTTA V

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. O F S A N F R A N C I S C O 15

B

.

Ours Garage held that the F AAAA’s safety ex ception can apply to ordinances e nacted by municipalities, even th o u g h § 1 4 5 01(c)(2)(A) refers only to “ the safety reg ulatory authority of a State.” 536 U.S. at 428. That is so, Ours Garage ex plained, because “Cong ress’ clear purpose i n § 14501(c)(2)(A) is to ensure that its pre e m p t i on of States’

ec o n o m i c authority over motor carriers of property

. . . ‘not restrict’ the preex isting and tr a d i t i onal state police power

over sa f ety [ ,]

. . . includ[ ing ] the choice to deleg a te the State’s ‘safety reg ulatory authority ’ to localities.” Id. at 439. “At the same time, ho w e v e r , Ours Garage a lso warned that
states and municipalities could not hide economic reg ulation

u n d e r the g uise of safety reg ulation.” CTTA I
, 693 F

. 3 d at 858 (internal citation and quotation marks omitted).

Ours Garag e went on to direct a basic framework for apply ing the F AAAA’s safety ex c e ption: A state law is saved from preemption only if it is “g enuinely responsive to safety concerns.” 536 U.S. at 442. We have g i v e n t h a t approach shape by fashioning “a two-part inquiry ”:

The first step e x amines any “ex pressions o f leg islative intent,” including (1) the p a rticular lang ua ge of the statute or reg u lation being challeng ed, a

n d any ex plicit statutory o r reg ulatory finding s in the pro v ision; a nd ( 2 ) available leg i s l a t i v e o r r e gu l a t o r y history

. . . . Once a s a f ety motivation is identi fi e d

, the second step looks to “the

ex isting record evidence” to determine whether there is a “log ical” or “g enuine” connection between the re g ulation and theCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 16

s a fety justification, or, instead, whether th e purported safety justification is a pretex t for undue economic reg ulation. The m o r e attenuated or spe culative the connection, the

more likely it will b e that a c ourt will find the
p u r p o r t e d s a f

ety mot i v e s “i l l u s o r y o r pr e tex tual” and that the safety justification will not withstand scrutiny

.

CTTA I
, 693 F .3d at 860.

CTTA I also articulated some more specific g uidelines concerning the F A AAA’s safety ex c eption “applicable to the district court’s preemption a n a l y sis on r emand.” Id. at 863. F irst, w hile the initial step of the safety

- e x ception test “addresses wha t e v er traditional sources of leg islative intent are available,” it “also allows for the situation where history is lacking

— especially at a local l ev el where committee reports or municipal statements mig ht not be published.” Id.
at 864. “[ M] e rely bec a u s e a safety rationale is not documented d oes n ot necessarily mean the s afety ex c eption
cannot a pply

, ” CTTA I ex plained, as “[ s] o metimes a safety justification is so obvious that it need not be stated — intent

can be o bvious from th e s u bject o f the reg ulation itself, a s well as from the surrounding circumstances.” I d. (citing Tillison v. Gregoire
, 424 F .3d 1093, 1102– 0 3 ( 9 th Cir. 2005)).

Nex t, CTTA I described how to assess l e g islative intent when reg ulators had “mix ed motives”

— for ex a mple, where

a reg ulation was motivated by safety concerns and economic

concerns. W e observed tha t “ ‘ [ t] he presence o f such mix ed motives

. . . d oe s n o t p reclude the application of the safety

e x c e ption, provided that the State’s safety motives are n o tCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 17

pre-tex tual.’” Id. at 860 (alteration in o rig inal) (quoting A m

. Trucking

, 660 F .3d at 405). Determining whether an asserted safety motive is not pretex tual “is equivalent t o asking whether a law is ‘g enuinely re s p o nsive’ to safety concerns”

— in other w ords, whether the challeng ed provision ha s a “log ical connection” to motor v ehicle safety

. CTTA I
, 693 F .3d at 860.

F inally

, we reiterated in CTTA I that proper analy sis o f an F AAAA preemption challeng e to a comprehensive reg ulation
must b e conducted on a “provision-by -provision basis.” Id. “‘W ere it otherwise, a sing le valid ex cepted provision would allow a vast amount of nonex c e pted provisions to stand.’” Id. (quoting Am. T

r u c k i n g Ass’ns, Inc. v. City of L.A.
, 559 F .3d 1046, 1 055 ( 9th Cir. 2009)). “Similarly

, the mere fact that

one part of the reg ulatory scheme is preempted does not mean that other parts of the scheme are p r e e m pted, or that the scheme as a whole is preempted.” I d.

I I I

.

B ef o r e apply ing the above principles to San F rancisco’s Permit Scheme, we consider a threshold dispute between the parties over the proper scope of the FA A A A’s safety

ex c e ption.

CTTA a rg ues that an appr o priately circumscribed understanding of the Act’s safet y e x c eption covers only
reg ulations related to the “motor vehicle safety ” of the t ow trucks themselves — for ex ample, “the manner in which tow trucks operate, the way they are driven o n the roadway s, a nd the manner in which they transport motor vehicles” — a nd
not the safety of the people whose ve h i c les are towed. Conversely

, th e City contends that CTTA “assumes anCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 18

artificially n arrow d e f

i n i tion of the term ‘safety ,’” and that,
p r o p e r l y u n d e r s t o o d

, t h e s a f e t y e x c e p t i o n c o v e r s “reg u la t ion[ s] seek[ ing ] to prevent or mitig ate the d a ng er a person e x periences when her motor vehicle is being or has been towed by

another motor vehicle.” The City is correct.

The very lang uag e o f the safety ex ception demonstrates that CTTA’s understanding o f the F AAAA’s s a f et y concept is unduly n a r r o w. Section 14501(c)(2) provides that the F AAAA “ shall not restrict the safety regulatory authority o f

a State with respect to motor vehicles.” 49 U .S.C. § 14501(c)(2)(A) ( e mphases a dded). The safety ex c eption nowhere mentions “motor vehicle safety ,” the talismanic phrase to wh i c h CTTA repeatedly refers. 6 Rather, it

ex p ressly states that the F AAAA shall not restrict the State’s general “safety reg ulatory a u t h o r ity ,” not just its reg ulatory authority reg arding the safe operation of the reg ulated motor vehicles.

Nor d oes the lang uag e of the ex ception limit the “motor vehicles” covered by the ex emption to the reg ulated vehicles covered by t h e FA A AA as a whole. I ndeed, the F AAAA specifically defines “motor vehicle” for purposes of this part of the statute as:

a vehicle, m a ch ine, tractor, trailer, o r semitrailer propelled or drawn by mechanical
p o w e r a n d u s e d o n a h i g h w a y i n transportation, or a combination determined

6 W e ack n ow led g e th at co u

rts h av e o ccasio n ally ref erred to “ m o to r

v eh icle saf

ety ” w h en ap p ly in g th e saf

ety ex cep tio n

. See, e.g

. , R o w e , 5 5 2 U .S. at 3 7 4 ; CTTA I

, 69 3 F.3 d at 8 6 0
, 8 6 2

. Bu t, as n o ted

, th e relev an t statu to ry lan g u ag e co n tain s n o su ch p h rase.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 19

by the Secretary
, but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus o perated by electric
power from a fix ed o verhead wire, a nd providing local p asseng er transportation similar to street-railway

service.

49 U.S.C. § 13102(16). “[ T] he ‘cardinal canon’ of statutory construction” is that “ Cong ress ‘say s in a statut e wh a t it

means and m eans in a statute what it say s there.’” Planned Parenthood Ariz. Inc. v

. Betlach

, 727 F

. 3d 960, 968 (9th Cir. 2013) (quoting Conn. Nat’l Bank v. Germain

, 503 U.S. 249, 2 5 3–54 (1992)). Cong ress chose to fashion the F AAAA’s safety ex ception to encompass the State’s safety r eg ulato ry authority with respect to t h e b roader categ ory of “motor vehicles,” g enerally

, instead of the more limited set o f vehicles denoted by the term “[ m] otor carriers of p ropert y

. ” 49 U.S.C. § 14501(c). According ly

, as tow trucks a re eng ag ed in towing other motor v ehicles, the e x ception in
terms ex tends to “safety reg ulatory authority ” concerning the vehicles towed.

F urthermore, “[ t] h e phrase ‘with respect t o ’ i s g enerally understood to be sy

nony mous with the phrase[ ] ‘relating to.’” In re Plant Insulation Co.
, 734 F .3d 900, 910 (9th Cir. 2013). And, althoug h the “ the breadth of the words ‘related to’ does
not mean the sky is t he limit,” the Supreme Court has reiterated that the “ordinary m e a n i n g of

. . . [ the] words [ ‘related to’] is a broad one,” meaning “having a connection with or reference to.” Dan’s City Used Cars, Inc. v. Pelkey

, 133 S. Ct. 1769, 1778 (2013) (second alteration i n o rig inal) (internal quotation marks omitted); see also Nw., I n c

. v. G insberg

, 134 S. Ct. 1422, 1428, 1430–31 (2014). Consequently

, the F AAAA’s safety ex ception ex empts fromCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 20

preemption safety reg ulations that “hav[ e ] a connection with”
motor vehicl e s , not o nly those that d irectly g overn the phy sical operation of the tow trucks themselves. See Dan’s City , 133 S. Ct. at 1778.

Consistent with the statutory lang uag e, Ace Auto Body & Tow i n g , L t d

. v. City of N.Y

. , 171 F .3d 765, 774 (2d Cir. 1999), h o l ding modified on other grounds by Loyal Tire & Auto Ctr., Inc. v. Town o

f W oodbury

, 445 F .3d 136 ( 2d Cir. 2006), specifically r ejected the arg ument that the safety

ex c e ption “ex tends on l y to safety reg ulation of the

m echanical components of motor v ehicles.” Noting th at

“ [ n ] e i t h er t h e tex t nor the leg islative history o f § 14501(c)(2)(A) supports such a narrow reading ,” Ace Auto Body concluded that e ven if the ph r a s e “ safety reg ulatory authority

. . . w ith respect t o m o tor vehicles” were ambig uous, it must be r ead “to encom p a s s the authority to enact safety reg ulations with respect to m o t o r vehicle accidents and break-downs.” Id.

More g enerally

, and contrary to CTTA’s arg uments, “[ c] ase law

. . . has on the w hol e g iven a broad c onstruction
to the safety reg ulation ex c eption.” VRC LLC v. Ci ty of Dallas

, 460 F. 3 d 607, 612 (5th Cir. 2006). Ours Garage specifically rejected “ the narrowest possible construction o f the [safety ] ex ception,” 536 U.S. at 440, noting that Cong r ess’s clear purpose in enacting § 14501(c ) ( 2 )(A) was “t o ensure that its preemption of States’ economic authority

over motor carriers o f property

. . . ‘not restrict’ the
preex isting and traditional state p olice power over safety ,” id. at 439.

W e have likewise held that towing reg ulations directed at

s a f ety in a fairly broad sense are ex e mpt from preemp t i o nCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 21

under the F AAAA’s safety ex ception. Tillison v. City of San Diego
, 406 F .3d 1126, 1127 (9th Cir. 2 005), for ex ample, h eld that a state law requiring towing companies to obt a i n written a uthoriz ation before r emoving a vehicle from private
p r operty , fell within the F AAAA’s safety ex ception. I n s o holding

, Tillison emphasi z e d the California L eg islature’s statement that it enacted the statute

“to f urther the safety of the g eneral public by ensuring t hat a private p roperty owner o r lessee has provided his or h e r authoriz ation for the re m oval of a vehicle from his or her property , thereby promoting t h e safety of those pers o n s involved in ordering the removal o f the vehicle as well as those
per s o ns removing

, towing

, and storing the vehicle.”

Id. at 1129–30 (emphasis added) (quoting C a l. Veh. Code § 22658(m)(2)). Tillison v

. Gregoire similarly held a state law restricting patrol and nonconsensual towing ex empted b y the F AAAA’s safety ex ception, listing a number of possible “safety purposes” animating the law, including “prevent[ ing ] i n v o l u n t a r y t o w s and t o w i n g m i s t a k e s , r e d u c [ i n g] confrontations, and ex pedit[ ing ] vehicle recovery .” 424 F .3d
at 1 1 0 0

– 0 1
, 1104. Some of these purposes — for ex ample, reducing confrontations — are related to the safe ty o f individuals affected by the towing process, but not directly to the safe operation o f the tow trucks w hen in use as a vehicle.

F inally

, in addition to the Second Circuit in Ace Auto Body

, our other sister c i r c u its have interpreted the scope o f the F AAAA’s safety concept consonantl y w i th our cases. Cole v. City of Dallas

, 314 F .3d 730 (5th Cir. 2002) (perCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 22

curiam), for instance, held a Dallas r eg ulation prohibiting the issuance o f a tow d

riving permit to persons w h o h a d been convicted o f certain drug crimes to be “ a motor vehicle safety
reg ulation under 49 U.S.C. § 14501(c)(2)(A).” Id. at 731. “I t i s difficult to imag ine,” the court ex plained, “a r eg ulat i o n with a more direct protective nex us or peripheral ec o n o m i c burden.” Id. at 735. Cole emphasiz e d that Ours Garage “anchored” its interpretation of t h e F AAAA’s safety

ex c e ption “to Cong ress’s desire to leave for the states a nd local g overnments those responsibilities r eg arding motor carriers that do not relate to the slender cong ressional g oal o f addressing economic authority over such carriers.” Id. at 733. Accor d i ng ly

, Cole “decline[ d] to elasticiz e Cong ress’s economic g oal by narrowly interpr e ting ‘safety reg ulatory authority of a State with respect to m o t o r v e h icles.’” I d. at 734; see also VRC LLC
, 460 F. 3 d at 615 (holding that an ordinance r equiring ex planatory sig n s concerning towing fell within the F AAAA’s safety ex ception a s p ossible “ violent

c o n frontation between unwarned vehicle o wners and tow truck drivers” could be remedied by a sig n requirement); Galactic Towing, Inc. v. City of Miami Beach

, 341 F .3d 1249, 1251–52 (11th Cir. 2003) (concluding that a n o nconsensual towing ordinance requiring permits a nd w ritten authoriz ation to tow fell within the F AAAA’s safety ex ception).

I n sum, the F AAAA’s safet y e x c eption does not, a s CTTA contends, limit the set of valid safety rationales in this

co n tex t to those c oncerned o nly with the safe phy sical

o p eration of the tow trucks themselves. Rather, reg ulati o n s that are “g enuinely responsive” to the safety of other vehicles and individuals involved in the towing p rocess may a lso be

ex e mpted f

rom preemption. Keeping this p rop er

un d e r s tanding of the F AAAA’s safety concept in mind, weCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 23

turn to CTTA’s specific challeng es to San F rancisco’s Permit Scheme.

I V.

W e fir s t a naly

z e CTTA’s challeng e to the Permit Scheme’s g eneral permit requirements. W e then a ddress the remaining p rovisions enabli n g t h e o peration of the Permit Scheme, such as the requirem e nts concerning a pplications, fees, permit possession and display , and penalties.

A.

The Permit Scheme’s r equirements that tow car operators

a nd tow car firms hold a City -issued p ermit while oper a t i n g in San F r ancisco, S.F

. Police Code §§ 3000, 3050, c learly fall within the F AAAA’s preemption clause, as they are “related
to a

. . . s e r v i ce of [ a] motor carrier,” 49 U .S.C. § 14501(c)(1). B ut the permit requirements, we hold, fall within the Act’s safety

ex ception.

I n apply ing the safety ex ception, we first “consider availab l e leg islative or reg ulatory intent” to e valuate “whether safety relating to m o tor vehicles was truly a concern,” using “ w hatever traditional sources of leg islative intent are available.” CTTA I
, 693 F

. 3 d at 860, 864. Neither party has cited le gi slative history dating f rom the initial
enactment of these ordinances, which may n ot ex i s t

. W h en amending A rticle 3 0

. 1 in 2009, however, the B oard o f Supervisors made e x plicit finding s, some of whi ch a re directly concerned with safety

. Specifically

, the B oard f

o u n d “that there is a sig nificant risk to the safety of residents and visitors when illeg a l towingCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 24

from private property o ccurs at nig ht,” and “that there is a risk to publ i c h e a lth and safety when the vehicles of senior citiz ens and p ersons with disabilities are illeg ally towed from
pr i v a te property .” S.F

. Police Code § 3055.2(a)(ii), (iii). CTTA maintains that only these safety -related findings a r e relevant to evaluating the Permit Scheme. B u t that arg ument

a s s u m es that the only safety concerns relevant to th e preemption analy sis are tho s e ex pressly stated in section 3055.2(a). T h at is not so. As CTTA I emphasiz ed, a safety justification “can b e obvi o u s from the subject o f the
reg ulation itself

, a s well as from the surrounding circumstances.” 693 F .3d at 864.

Here, as in Gregoire
, it is “reasonable to conclude” from the Per m it Scheme’s subject matter that the leg islature “had public safety in mind w hen it passed [ the law] .” 424 F .3d at 1103. I n deed, the California sta t e l a w allowing municipalities like San F rancisco to reg u late towing services demonstrates clear safety c oncerns. S ee C a l. Veh. Code § 2 1 100(g )(2). 7 F urthermore, the Cog g an D eclaration

— althoug h not direct evidence of the B oar d ’ s intent, as it was produced after the Permit Scheme was enacted — c an be considered to establish the “surrou nding circumstances” in which the ordinances were passed. CTTA I
, 6 93 F .3d a t 864. That is, the Declaration is e vide n ce of the broad rang e o f safety problems arisi ng in the towing industry

, such as the

7 T h e Calif

o rn ia L eg islatu

re, in en actin g sectio n

2 1 1 0 0 (g )(2 ), f

o u n d :

[T ]h at th e saf

e t y a n d w elf

are of th e g en eral p u

b lic is
p ro m o t ed b y perm ittin g lo cal au th o rities to reg u late to w tru ck serv ice co m

p an ies an d op erato rs b y req u i r in g licen su re,

. . . t h ereb y en su

rin g ag ain s t to w in g m istak es th at m ay lead to v i o len t co n f ro n tatio n , [an d ] stran d in g

m o to rists in

d an g ero u s situ atio n s . . . . Id

.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 25

“operati[ on] [ of] tow trucks in an unsafe manner on the road,” “stealing merchandise from towed vehicles,” and instances o f phy sical o r sex ual a ssault by tow operators o r t h eir employ e es.

Viewing the various indices o f reg ulatory intent in combination, we find that “safety relating to m o t o r vehicles

was truly a c oncern” that motivated the B oard of Supervisors
to enact the challeng ed p ermit requirements. 8 CTTA I
, 693 F .3d a t 8 6 0

. T hese safety c oncerns include the limited
set articulated when enacting the 2 0 09 amendment to Article 30.1

— the risk posed by illeg al towing from private property at nig ht or invol v ing a vehicle belong ing to senior citiz ens and persons w i t h d i s abilities

— but are not limited to those

concerns. Rather, we may infer from the other indices t hat broader safety concerns, inclu d i n g safe operation of the trucks, phy sical or s ex ual assault, the possibility of violent confrontations, and the stranding of motorist s in dang erous situations, a lso underlay the enactmen t of the challeng ed permit requirements.

The se c o n d prong of the safety ex ception analy sis requires us to “assess the nex u s between the p r ovision at issue and the safety concern.” CTTA I
, 693 F .3d at 860. Th at

nex us is more than sufficient.

8 T o be su re, CT T A ’ s o b s erv atio n th at th e P erm it Sch em e is an im ated

, in p art, b y co n su

m er p ro tectio n co n cern s is accu rate. S ee S.F. P o lice Co d e § 3 0 5 5

. 2 ( a ) ( i v)– (v iii). T h at th e B o ard h ad reaso n s o th er th an saf ety f or

en actin g th e reg u latio n , h o w ev er, d o es n o t co m p el th e co n clu s io n th at th e B o ard ’ s saf

ety

- related f

in d in g s are “ p retex tu al.” C T TA I in stru cted th at

“ m ix ed m o tiv es” d o n o t af f ect th e saf ety

- ex cep tio n an aly sis so lo n g as th e ch allen g ed reg u latio n s h av e a “ lo g ical co n n ecti o n ” to th e “ s af ety j u stif i catio n .” 6 9 3 F.3 d at 8 6 0

.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 26

That the permit requirements have a sig nific a nt a nd log ical relationship to safety is evident. As the d istrict court stated, “the presence o f a p ermit requirement implies the threat of permit revocation,” which makes the requirement “a tool f or policing misconduct in the towing industry

. ” F urthermore, the permit requirement enables the City proactively to “weed o ut” and monitor tow car drivers a nd firms on an ong oing basis.

CTTA maintains that a more appropriate safety response by the City w ould be “to in c r ease the criminal penalties for [ illeg al towing ] ,” ins tead o f creating a scheme that “places

enorm ous reg u latory and economic b urdens on leg itimate towing firms.” B ut the F AAAA’s safety ex ception does not

save f rom preemption only t h e least intrusive methods o f promoting safety

. Moreover, as Serg eant Cog g an reasonably observed, it may well be that “the threat o f permit nonrenewal

or revocation by administrative action is more effective than the threat o f c r i minal or civil p rosecution, g iven the relative certainty and timeliness of the administra t i v e process.” CTTA offers no reason to doubt this assessment.

Taking another tack, CTTA complains t h a t t h e City has produced “ no evidence” that the Permit Sche m e h a s in fact increased safety o r r educed the incidence of illeg al towing

, contending that the record evidence is “entirely bereft o f any statistical data” or other “empirical data.” B ut a r e gu l a tion falls within the F AAAA’s safety ex ception if it is “ g enuinely responsive t o s a f

ety concerns,” a test we have d escribed a s requiring “a logical connection to motor vehicle safety

. ” CTTA I
, 693 F

. 3d at 860 (emphasis added) (internal quotation

mar k s o m i tted). That is, the safety ex ception is concerned with leg islative intent , not leg islative effectiveness

.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 27

As a third line of attack, CTTA c o ntends that the p ermit requirements are not facially concerned with safety

. I n CTTA’s view, permissible safety reg ulations include

r eg ulations such as “requiring tow truck drivers to pa s s a driving test, or to demonstrate competence in towing m o t o r vehicles,” not permit requirements. This arg ument r ests on CTTA’s incorrect understanding of t h e FAAAA’s safety concept, see Part I I I
, supra

. A s we have ex plained, the safety

ex c e ption is not limited to reg ulations that narrowly address “on-the-road” safety f

o r tow trucks; rather, it ex tends to reg ulations tha t p r otect safety in connection with motor vehicles towed and t h e i ndividuals w ho interact with tow truck operators a n d f

i r m s. See, e.g. , Tillison

, 406 F .3d at 1127; Gregoire
, 424 F .3d at 1100–01; VRC LLC
, 4 60 F .3d at 609, 6 15; G alactic T

o w i n g , 341 F .3d at 1251–52; Cole

, 314 F .3d at 731. CTTA cannot plausibly claim that revoking the permit of those tow car drive rs a nd firms who commit misconduct related to their services, strand motorists in dang erous locations, or operate dang erously is not log ically connected to improving the safety of individuals involved in the towing process.

F inally

, CTTA invokes Automobile Club of New Y o rk, Inc. v. Dyks t r a , 5 2 0 F .3d 210 (2nd Cir. 2008). Dykstra involved a c halleng e to New York City ’s comprehensive
reg ulation of the tow i n g i n d ustry “as applied to tow trucks from outside New York City

. ” Id. at 212. Holding that “[ e] nforcing the Scheme ag a ins t tow trucks passing throug h New York City

or towing vehicles into New York City does
not respo n d to safety concerns and does not fall within the safety ex ception,” id. at 217, Dykstra

, presumably because it focused on those questions, did n ot discuss — or even cite

— earlier decisions like Cole

, V RC
, o r G a l a c t i c Towing
, all o f which held that the F AAAA’s safety e x ception covers towingCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 28

permit reg u lations a ffecting in-jurisdiction operators. Notably

, Dyk

s t r a o bserved that tow trucks from New York City “ would presumably already be licensed” under the c ity ’s permit reg ulation, without questioning the validity of that
reg ulation. Id. at 217. Dykstra w as thus primarily concerned with the application o f New York City ’s permit reg ulation to vehicles coming from outside the City

. 9 The c a s e d oes not support CTTA’s position in this case.

I n sum, the perm i t requirements of sections 3000 a nd 3050 are “g enuinely responsive” to the set of real safety

c o n cerns that underlay enactment of the Permit Schem e. According ly

, thes e requirements fall within the Act’s safety

ex c e ption, and so are ex empted from preemption.

B

.

The district court concluded that the majorit y o f the remaining provisions f

e l l w ithin the F AAAA’s safety

ex c e ption, while others were not covered by the F AAAA’s preemption clause in the first place. CTTA’s arg uments concerning these provisions for the most part suffer from the

same infirmities that undermine its arg uments concerning the
g eneral permit require m ents. As the district c ourt properly conducted a thoroug h “provision-by -provision” analy sis, we address most o f t h e provisions o nly in brief. W e separately address thereafter section 3 052’s complaint-handling sy stem and bu s iness plan requirements, see S.F

. Police Code § 3052(4).

9 T h e q u estio n o f ex traterrito rial ap p licatio n is irrelev an t in th is case, as th e Calif o rn ia Co u rt o f

A p p eal h eld th at th e P erm it Sch em e ap p lies o n ly
to th o s e to w in g f

irm s w h o se “ p rin cip al p lace of b u sin ess o r em p lo y m en t” is San Fran cisco

. S

ee n .3
., su p r a

.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 29

1. Permit Applicatio n R equirements, Sections 3002 and 3052

The district court conclu d ed that the Permit Scheme’s application and information-collection requirements f a l l within the F AAAA’s safety ex ception. 1 0 W e ag ree.

Requiring tow c ar o perators and tow car fi rm applicants
to submit identif

ication information as part of their applications is “log ical[ ly ] c o nnect[ e d] ,” CTTA I
, 693 F .3d at 860, to t h e safety of individuals potentially threatened b y such d r i v ers or firms. Those requirements a llow the police

m o re easily to identify drivers and firms that commit
wrong doing or misconduct.

One of the primary way s by which the Permi t Scheme
g enuinely r e sponds to safety concerns is by providing police the capability proactively to monitor the towing ind u s t r y , a capability that is predicated on the p o l i ce having basic information about tow car drivers. CTT A in fact concedes that such identify ing information “may be hel p ful to the police in identify ing tow truck drivers,” but arg ues that such identification “does nothing to improve towing safety ” a nd

ensure that drivers “will o perate their vehicle safely .” B ut, a s

we have ex p lained, the Act’s safety concept is not limited to the safe p hy sical operation of the tow trucks. I nstead, it includes protection o f customer s , w h o may be in v ulnerable situations, from dang e rous or irresponsible tow truck

10 T h e district co u rt also co n clu d ed th at th e ap p licatio n req u irem en ts are

su b j ect to th e F A A A A ’ s ex p ress p reem pti o n c l a u s e; th e City d o es n o t

co n test t h a t co n clu sio n

. We th u s assu m e w i th o u t d ecid in g th at th e req u irem en ts w o u l d b e p reem p ted i f th ey d id n o t f

all w ith in th e s af

ety

ex cep tio n

.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 30

operators. Accurate identification o f the tow car o p erator a nd car firm operators helps to provide such protection.

CTTA contends in particular that the requirements that applicants provide criminal history information as pa rt o f their application, see S.F

. Police Code §§ 3002(5), 3052(7),

are preempted by the F AAAA. That t h ese requirements “g enuinely respo n [ d ] ” to safety concerns is quite apparent. I ndeed, “[ i] t is difficult to i m a g ine a reg ulation with a more direct protective nex u s or peripheral economic burde n.” Cole

, 314 F .3d at 735. 1 1

F inally

, CTTA arg u es that, in a n y event, requiring driver permit applicants to list a ll criminal offense s fo r which they have been a rrested is n ot r esponsive to safety concerns, because an arrest is “not competent evidence of any wrong doing .” That observation is q uite v a l i d

, and curbing the misuse o f arrest records is a leg itimate concern. 1 2 A s the

11 Fo r th e sam e reaso n , th e P erm it Sch em e’ s p ro v i sio n s allo w in g f or p erm i t d en ial o r rev o catio n d u e to crim i n al activ ity

, S.F. P olice Co d e § § 3 00 4
, 3 0 1 1
, 3 0 5 4 (3 ) & 3 05 6 (1 ), f all w ith in th e A ct’ s s af

ety ex cep tio n

.

12 S ee Gary F i eld s & J o h n R

. Em sh w iller, As Arre s t R e c o rd s Rise, America n s Fin d

Co nseq u en ces Ca n La st a Lifetime

, W all St. J . (A u g . 8
, 2 0 1 4 ) (o b serv in g th at “ n early o n e o u t o f ev ery th ree A m er i c a n a d u lts” h av e arrest reco rd s, an d t h at “ [m ]an y p eo p le w

h o h av e n ev er f

ac ed ch arg es, o r h av e h ad ch arg es d ro p p ed , f in d th at a lin g erin g arrest reco rd

can ru in th eir ch an ce to secu re em plo y m en t , lo an s an d h o u sin g ”).

I n recen t g u id an ce co n cern in g th e u se o f crim in al reco rd s in t h e

em p l o y m en t co n tex t, th e Eq u al Em p lo y m en t Op p ortu n i ty Co m

m issio n

ex p lain ed : “ T h e f

act o f an arrest d o es n o t estab lish th at crim i n al co n d u ct h as o ccu rred

. A rrests are n o t p ro o f o f crim in al co n d u ct. Man y arrests d o

n o t resu lt in crim in al c h a r g e s, o r th e ch arg es are d ism issed .” EEOC En f o rcem en t Gu id an ce N o

. 91 5 .0 0 2
, Co n sid era tio n o f Arrest a n dCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 31

City points out, h owever, “the Police Code does not allow a permit denial b ased solely on arrest”; any such denials would be ex tr e mely troublesome and could be separately ch al l eng ed. 1 3 Simply collecting information on a rrests is nonetheless pertinent to assuring accurate identification o f drivers, as arrest rec o r d s contain identify ing information, including fing erprints and usag e of aliases.

I n sum, the Permit Scheme’s application requirements, including the criminal history d i s c l osure requirements, fall within the scope of § 1 4501(c)(2)(A), and are therefore not preempted.

Co n victio n Reco rd

s in Emp lo

ymen t Decisio n s Un d

er Title VII o

f th e Civil Rig h ts Act o

f 1 9 6 4 (2 01 2 ), a va ila ble a t h ttp ://w w w .eeo c.g o v

/ law s/
g u id an ce/arrest_ co n v ictio n .cf m

. T h e EEOC f

u rth er o b serv ed th at m an y states “ h av e en acted law s t o l i m it em plo y er i n q u iries co n cern i n g all or

so m e arrest reco rd s.” Id

. n .1 0 1. In Calif o rn ia, f or ex am p le, em p lo y ers

—

“ w h eth er a p u

b l ic ag en cy o r p r i v a t e in d iv id u al o r co rp o ratio n ” — are g en erally p ro h ib ited f

ro m “ ask [in g ] an a p p l i can t f o r em p lo y m en t to d isclo se

. . . i n fo r m atio n co n cern in g an arrest or d eten tio n th at d id n o t

resu lt in co n v ictio n .” Cal. L ab . Co de § 4 3 2 .7 (a).

13 T h e P erm it Sch em e d o es allo w d en i al o r rev ocatio n o f a perm it w h ere th e d r i v e r h as “ acted in v io latio n ” o f th e listed crim in al statu tes, ev en if

n o t co n v icted

. S.F. P olice C o d e § 3 0 04 (b ). CT T A pro v id e s n o

su b stan tiv e arg u m en t ch allen g in g th i s p articu l ar g ro u n d f or d en i al, eith er

o n th e m e rits o r w ith reg ard to an y p ro ced u res th at m ig h t be req u ired b ef o re den y in g a p erm it o n th at g ro u n d

. S ee Un ited S ta t es v. K

a ma , 3 9 4 F.3 d 1 2 3 6
, 1 2 3 8 (9 th Cir. 2 0 0 5 ) (“ Gen erally

, an issu e is w aiv ed w h en th e ap p ellan t d o es n o t sp ecif ically an d d i stin ctly arg u e th e issu e i n h is o r h er o p en in g b rief

.”).CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 32

2. Permit Fees, Section 3003 and 3053; Penalties, Sections 3012 and 3064

The district court correctly concluded that the permit fee and penalty

provisions fall within the safety ex c eption.

The filing and license fees reimburse the City for the costs of proces s i n g the application. The p ermit fees thus directly support the Permit Scheme’s other requirements. As the district c o u r t ex plained, “that the permit f ee requirements
reg ulate so m ewhat more indirectly is not by itself fatal, for, like th e essential permit r equirements themselves, they remain ‘log ically ’ and ‘g enuinely ’ connected to obvious [ safety ] concerns.” 1 4 “[ I ]t would make no sense to conclude that certain provis ions of the [ Permit Scheme] are not preempted because they are g enuinel y r e s ponsive to safety
concerns, but that the state is forbidden from taking measures to make those provisions effective.” Prof’l T o w i n g & Recovery Operators of

Ill. v. Box
, 965 F

. Supp. 2d 9 81, 1003 (N.D. I ll. 2013).

The penalty provisions for d riving or operating a tow truck in the City without r equiring the requisite permit a re likewise integ r al to the fu nctioning of the Scheme’s p ermit

14 CT T A arg u es th at th i s an aly sis is co n trary to CTTA I ’ s in stru ctio n to

ex am in e a p reem

ptio n ch allen g e to a co m

p reh en s iv e law o n a “ p ro v isio n

b y

- p ro v isio n

b asis.” 69 3 F.3 d at 8 6 0 . Yet CT T A ’ s arg u m en t o v erstates th e m ean in g o f CTTA I ’ s in stru ctio n

. A p ro v isio n

- b y

- p ro v i sio n an aly s is

en su res th at “ t

h e m ere f

act th at on e p art o f a reg u l a t i o n o r g ro u p of
reg u latio n s m i g h t co m e w ith in an ex cep tio n to p reem p tio n d o es n ot m ean th at all o th er p arts o f th at reg u latio n o r g r o u p are also ex cep ted .” Id

. (in t ern al q u o tatio n s o m itted ). B u t CTTA I co u ld n o t p o ssib ly r eq u ire

co u rts to ig n ore th e p articu l ar f u n ctio n o f a p ro v isio n in th e co n tex t o f th e

co m preh en siv e sch em e, as d o in g so w ou ld resu l t in ab su rd o u tco m es.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 33

requirement. Absent some p enalty for non c o m pliance, the permit requi rement would be a dead letter. CTTA’s only
arg ument is a reiteration of its basic theme: “W hile the threat of misdemeanor c onvictions may serve as a deterren t t o encourag e drivers to com p ly with the o rdinance, there has been no showing that comply ing with the ordinance enhances the safety of the motoring public.” R e p e a t i ng the same refrain does not improve it.

W e thus hold that the f ee and penalty provisions fall under the safety e x ception and are not preempted.

3. Possession and Display Requirements, Section 3007 and 3055

The d istrict court conclude d that the permit possession and dis p l a y requirements “are not subject to F AAAA preemption” in the first place, as display ing a permit does not constitute a “ service” under § 1 4501(c)(1). CTTA arg ues to the contrary — that directing “drivers to affir matively perform an act,” such as display a permit to a police officer, is inherently

a “service.”

W e cannot ag ree with CTTA. A requirement desig ned to de m o nstrate compliance with a leg al oblig ation is not ordinarily termed a “service.” One who ha n d s over his driver’s license to a police officer when stopped for a traffic violation, for ex ample, is not providing a “ service” to the officer. Mor e o v e r , the o nly state laws “whose effect is forbidden under [ t h e F AAAA] are those with a sig nificant impact on c arrier rates, r outes, or services.” Rowe
, 552 U.S.
at 375 (internal quotation marks and emphasis omitte d ). CTTA has not shown that the permit possession and display requirements a ffect its members in any sig nificant ma nnerCTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 34

distinct from the r e quirement of obtaining the permit in the first place.

Consequently

, sections 3007 and 3055 are not p reempted by the F AAAA. 1 5

4. Complaint System a nd Business P lan R equirements, Section 3052(

4)

To obtain a tow c ar firm permit, applicants must include in their applic at i on “ [ a] d escription of the applicant’s business plan, . . . and a sy stem for handling complaints that is acceptable to the C h i e f of Police.” S.F

. Police Code § 3052(4). The district court concluded that both requirements fell w ithin the F AAAA’s safety e x ception. 1 6

15 Da n ’s City recen tly

h eld th at f

o r FA A A A

p reem p tio n to ap p ly , “ it is

n o t su f f icien t th at a state law relates to th e ‘ price, ro u te, o r s e rv ice’ o f a

m o to r carrier in a n

y c a p a city ; [it] m

u st also co n cern a m o to r carrier’ s

‘ tra n sp o rta t io n o

f p ro perty .’ ” 13 3 S

. C t. at 1 7 7 8

– 7 9 (em p h asis ad d ed ). Da n ’s City f

u rth er ex p l ain ed th at th e “ w ith resp ect to tran sp o rtatio n of
p ro p erty ” p h rase “ m assiv ely lim i ts th e sco p e o f p reem p tio n o rd ered b y th e FA A A A .” Id

. at 17 7 8 (in tern al q u o tatio n m ark s o m itted ); see a l so M a ss. Delivery A s s ’ n v. C

o a kley

, 7 6 9 F .3 d 1 1
, 2 3 (1 st Cir. 2 0 1 4 ) (“ [T ]h e FA A A A is caref

u lly tailo red to preem

p t o n ly t h o s e statu tes th at af f ect a

m o to r carrier’ s tran s p o rtatio n o f p ro p erty .”). T h e p erm it p o s sessio n an d d isp l ay req u i rem en ts m ay escap e p reem p tio n f o r th is ad d itio n al reaso n , as th ey d o n o t ap pear related t o s erv i ces “ w ith resp ect to tr a n s p o r t a t io n of
p ro p erty .” Cf. Da n ’s City
, 1 3 3 S. Ct. at 17 7 9 (d ef in in g “ tran s p o rtatio n ”

as “ serv ices related to th [e] m ov em en t” o f p ro p erty , “ i n clu d in g arran g in g f o r, receip t, d eliv ery , elev atio n , t ran s f er in tran sit, ref

rig eratio n , i cin g , v en tilatio n , sto rag e, h an dlin g , p ack in g , u n p ack in g , an d in terch an g e of
p assen g ers an d p ro p erty ” (q u o tin g 4 9 U.S.C. § 1 3 1 0 2 (2 3 )(B )).

1 6 T h e City ’ s co u n sel ag reed at o ral arg u m en t th at t h e sectio n 3 0 52 (4 )
req u irem en ts are co v ered b y th e FA A A A ’s e x p ress p reem p tio n clau se. W e so assu m e f

or th e p u rp o ses o f

th is o p in io n

.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 35

W h ile we ag ree that t h e complaint sy stem r equirement
g enuinely responds to safety conce r n s , w e conclude that the business plan re q uirement falls outside of the safety

ex c e ption and is therefore preempted.

(a) Requiring tow car firms to have acceptable sy stems for handling customer complaints is log ically conne c t e d to improving safety

.

F irst, as the district court found, “ having such a complaint
sy stem in place could reduc e t h e incidence of heated confrontations” between tow car f i rm employ ees a

nd i n dividuals whose vehicles were towed. I t is reasonable to conclude that individuals who a r e upset or ang ered by the towing process are less likely personally

to confront tow car firm operators or employ ees when they are a w a r e that there is an official mechanism for h andling their c omplaints. A nd reducing such confrontations, we have h eld, is a permissible safety -related concern under the F A AAA. See G r e g o i r e , 424 F .3d at 1103–04.

Second, having a n effective complaint sy stem can alert the tow car firm itself to a lleg ed u nsafe c onduct by its drivers or employ ees. Most fundamentally , the complaint sy stem is simply an alternative mode of enforcement of the valid safety
reg ulations. T hat is, althoug h the complaint sy stem may not in itself be a direct safety reg ulation, it — like the Perm i t Scheme’s f

ee and penalty provisions — helps to e ffectuate the Scheme’s direct safety -related reg ulations. A c cording ly

, this requirement falls within the F AAAA’s safety ex ception.

( b) The remainder of section 3052(4)’s business pl a n requirement, however, does not f it the safety rubric, even a s broadly understood. The district c ourt held that the B oard’sCTTA V

. C I T Y & C T Y

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purpose in e nacting this provision was “to ascertain whether

a permitted t o wing f

irm w ould be able to make e nds meet without resorting to illeg al means.” The City also points to the Cog g an Declaration, whic h s t a tes that the business p lan allows the City to “assess whether the [ applicant] companies have a plan to transport and store vehicles in a safe manner.”

These asserted roles f

o r the business plan requirement a re belied by the fact that no enforcement provisions are linked to the requirement. The failure to include a business plan in the application is not a g round for deny ing or revoking a tow

car permit. S

ee S.F

. Police Code § § 3054, 3 0 5 6

. A n y connection between th e b u siness plan requirement and the ascertainment of safe practices or capacities is ephemeral.

Moreover, the City ’s evidence sug g ests that the business plan r equirement is intended to f urther consumer protection
, not safety . F or ex ample, Cog g an stated that, “[ b ] y requiring that companies submit business plans and proposed services
to be provided, the Department can better determine whether the a mount charg ed by a tow company is commensurate with the services it reg u larly provides.” I n sum, unlike the other challeng ed provision, the b usi ness plan requirement is just
not g enuinely responsive to s a f e t y concerns, and so is preempted.

W e therefore must consider whether the business p l a n provision (ex cept for the complaint requirement) is severable from the remainder of the Permit Scheme. CTTA I ex p lained that the Scheme’s severance provisions, see S.F

. Police Code §§ 3013, 3065, allow us “to sever a particular provision if it would not affect the Permit [ Scheme] a s a whole.” 693 F .3d
at 863. “Severability of a local ord i n a n c e is a question o f
state law

. . . .” City o

f Lakewood v. Plain Dealer Publ’g Co.
,CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 37

486 U.S. 750, 772 (1988). I n Califor n i a , t he presence o f a severability clause “establishes a presumption in favor o f severance.” Cal

. R edevelopment Ass’n. v. Matosantos
, 53 Cal. 4th 231, 270 (2011). Additionally

, “[ t] he inv alid provision must be g rammatic ally

, functionally

, a nd volitionally

separable.” Id. at 271.

Grammatical separability

— “whether the invalid parts can be removed as a whole without affecting the wording or coherence o f what remains,” i d

. ( i nternal quotation marks omitted) — is ce r t ainly satisfied. Section 3052(4) is a freestanding provision, and so unconnected g rammatically to the rest of the e n a ctment. And after severance, the revised section read s : “A description of

. . . a sy stem for handling complaints that is acceptab l e t o the Chief of Police,” a perfectly coherent requirement.

The latter two severability criteria are a l s o met. The business plan requirement is a minor — e v e n tang ential

— provision of the Permit Scheme. I t is neither a r equirement for obtaining a permit nor a means of facilitating

, supporting

, or enforcing t he permit requirement. I ts invalidation therefore in n o way affects the “measure’s operation a nd purpose,” making it functionally severable, nor is it o f “critical importance to t h e measure’s enactment,” making it voli t i o n ally separable. Hotel Emps. & Rest. Emps. I nt’l Union v. Davis , 21 Cal. 4th 585, 613 (1999).

W e hold that the business plan requirement is p reempted by the F AAAA, but that the r equirement is severable from the valid complaint requirement c o n tained in section 3052(4), and from the Permit Scheme more g enerally

.CTTA V

. C I T Y & C T Y

. O F S A N F R A N C I S C O 38

5. Miscellaneous Provisions

The district cou r t p r o p erly concluded that the Permit Sc h e m e’s r ecordkeeping requirement, S.F

. Police Code § 3 0 6 0
, i s saved from p r eemption by the F AAAA’s safety

ex c e ption. L ike the perm i t application requirements, the recordkeeping requirement a llows the police more ea s i l y to identify drivers and firms that have committed wrong doing o r misconduct. W ithout accurate records, it may be difficult for law enforcement to investig ate a l l e g ed d ang erous activities, thus reducing the Permit Schem e ’ s potential for d eterring unsafe conduct.

L ikewise, the district court correctly determined that section 3055.2, which r equires tow firm operators to display brochures containing a concise summary of California towing law “in a conspicuous place in the location wher e a v e h i cle

owner must c ome to reclaim their towed vehicle,” S.F

. Police Code § 3055.2(c), falls within the F A AAA’s safety

ex c e ption. The B oard o f Supervisors made its safety -related finding s when adding the brochure requirement in 2009. See id. § 3055.2(a)(ii)–(iii). This tim i n g i n d icates a connection between the requirement and the Permit Scheme’s safety

concerns. N o r is there any indication that the B oard’s finding s were p retex tual. As the district court ex plained, the
requ i r ement is “obviously aimed at d iscourag ing improper towing

. . . and prevent[ ing ] illeg al tows [ ] evinces a g enuine
motor vehicle s a f

e ty concern.” L ike a r equirement that tow

car firms post ex planatory sig ns, upheld by t h e Fifth Circuit in VRC LLC
, 460 F .3d at 615, the brochures required by the Permit Scheme promote safety by providing consumers with information that could red uce confrontation. F urthermore, the brochure requirem e n t, like the fees and penalties
p r o visions, enable the effectiveness and enforcement o f t h eCTTA V

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. O F S A N F R A N C I S C O 39

other safety -related provisions by ensuring that customers a re

aware of their rig hts, a

n d so able to reg ister complaints when they are violated. Cf

. P r of’l Towing
, 965 F

. Supp. 2d at 1003. 1 7

I n sum, the Permit Scheme’s recordkeeping and brochure requirements fall within the F AAAA’s safety ex ception, a nd are therefore saved from preemption.

V.

W e reverse the d istrict court’s g r ant of summary judg ment to the City as to section 3054(2)’s b u s iness p lan requirement, and remand to the di s t r ict court f or f urther proceeding s c onsistent with this opinion. W e otherwise affirm the district court’s judg ment.

AF F IRMED IN P A RT, REVERSED IN P ART, AND REMANDED.

CTTA will bear the costs of appeal.

1 7 O f co u rse, f

o r th e b ro ch

u re req u i rem en t to su

rv iv e p reem

p tio n , t h e

co n cise su

m m ary o f state law s in clu d ed in th e b ro ch u re m u st n o t ref

er to

an y law s th at th em selv es are p reem p ted

.