Article Courtesy of The Union Tribune

By Onell R. Soto

May 22, 2005

When they spot one, boom, up it goes on the truck.

And when the car owners spot the tow trucks, boom, out they go to demand their cars back.

The situation can get pretty heated. Police are often called.

But officers in San Diego have been powerless to enforce a state law banning so-called patrol towing. A federal judge acting at the request of a local towing company said police couldn't enforce it.

Two weeks ago, however, an appeals court reversed that decision and in the process restored a California law outlawing patrol towing.

If the decision is upheld, it will once again be illegal in most cases to tow a car parked on private property unless the property owner or one of its agents is present.

City officials say they hope police get fewer calls from irate car owners and fearful tow truck drivers.

But the decision might also mean layoffs of drivers and make it impossible for property owners to enforce parking regulations late at night, when parking is at a premium, say towing company officials and apartment managers.

"It translates into 40 jobs lost by our company, out of 130," said Mick Malone, general manager of San Diego-based Western Towing.

About 40 percent of the 60,000 to 70,000 cars, trucks and sport utility vehicles towed from private property in San Diego County every year are moved as a result of patrol towing, he said.

"The market demand from the property management industry is huge," he said.

He says apartment owners and condominium and homeowner associations rely on companies like his to enforce their regulations, curb trespassers and ensure there is parking for those who pay for it.

The court decision has property managers on edge. "I'm not happy with it at all, not at all," said Patty Troublefield, who manages a 184-unit apartment complex in Oceanside.

The state law is designed to have someone other than the tow truck driver make the call on whether someone parked where they shouldn't have, said a former deputy San Diego city attorney who handled the case.

There's someone for the owner of the vehicle to appeal to, Grant Telfer said. "It sort of gives you a hearing," he said.

But Troublefield said injecting managers into the mix doesn't help calm irate car owners. She recalled an incident in which someone nearly ran her over after getting a tow truck driver to release his car.

Troublefield, president of the North County Apartment Managers Association, said managers sometimes must deal with drug dealers and don't want to stand in the parking lot to wait for cars to be towed.

Safety issue?
Getting tow truck drivers to remove the cars without management involvement makes sense, she said, and that's why her organization hired a lawyer to write a brief in support of the tow truck companies.

Towing companies boast that drivers with specially equipped trucks don't even have to get out of the driver's seat to pick up a car.

"A tow truck can hook it up and be out of here in two minutes flat," Troublefield said. "It's a safety issue for us."

Safety. That was the question the San Francisco-based 9th Circuit Court of Appeals was considering when it decided the case of John Tillison v. City of San Diego.

When Congress deregulated the trucking industry in 1994, it said local and state rules don't apply to trucking operations unless it's a safety issue.

Tow truck owners used the deregulation to argue that the state ban on patrol towing doesn't apply to them.

The practice became widespread beginning in 1999.

Towing companies started signing up property owners, saying they'd patrol the parking lots and tow away violators. The apartment complexes and condo associations generally didn't have to pay a dime.

The people whose cars were towed, however, had to pay to get their cars back. Under state law, the fee can't exceed what the local government would charge if the car had been towed for parking illegally on a street; in San Diego it's $125 plus storage fees.

But the drivers who were towed weren't happy, and calls to San Diego police went up dramatically in 2002, Telfer said.

"There was a big problem with compliance with the state law," he said. "We said, 'Wait a second. This is a safety issue.' "

Apartment dwellers complained about cars being towed because the parking pass was on the dash instead of hanging from the rear-view mirror or because they parked a rental car in their assigned spot.

Telfer recalled an incident in which undercover federal agents had their car towed from a South Bay apartment complex. The car had a gun inside. The agents had left their business cards on the dashboard.

"No landlord is going to have a federal undercover vehicle towed," he said.

And there was another problem. The state law required tow truck companies to notify local law enforcement whenever they towed a car, but many weren't doing it quickly enough.

"We were wasting time chasing down stolen cars," Telfer said.

Another safety issue, he said.

Tillison sued the city of San Diego after one of his drivers was stopped by police in December 2001 and refused to return a towed car to the private parking lot from where he took it.

He challenged the law saying the presence of property managers or security guards doesn't make a difference.

"If the vehicle owner comes out, it doesn't matter if there's 10 people there authorizing the vehicle to be towed," he testified. "If he wants to be confrontational, he's going to be confrontational."

A skeptical judge
In February 2003, a San Diego federal judge granted a permanent injunction against the city, barring it from enforcing the ban on patrol towing.

U.S. District Judge Rudi Brewster said he wasn't convinced by the city's evidence that patrol towing was a safety issue – statistics of more calls to police from three apartment complexes with patrol towing than from three that didn't have it.

Many calls came during baseball season from a complex near Qualcomm Stadium, he said.

The city appealed the case to the 9th Circuit.

While the case was pending, the Legislature amended state law to say the ban on patrol towing was "promoting the safety" of the people who ask a car be towed and the tow truck driver.

The three-judge appeals court panel cited that change in the law to strike down patrol towing.

So what happens now?

San Diego police are deciding whether they will try to enforce the law again, a spokesman said.

Tillison couldn't be reached. He sold his business assets to Western Towing and tried a similar venture near Seattle before local officials there shut him down citing a state law against patrol towing.

Malone, who says his company now consults with Tillison before making decisions on the case, said lawyers will ask for a full panel of the appeals court to review the decision, and the case may end up before the U.S. Supreme Court.

In the meantime, he said, the injunction against the city remains in effect until Brewster revisits the case, and patrol towing is still legal.

But Troublefield, the Oceanside apartment manager, said she's not taking chances. Patrol towing, as far as she's concerned, is dead.

"I won't remove vehicles at night," she said.

Unwanted guests will stay until morning, she said.

"I'm going to assume that a little further down the line we're going to have a lot of complaints from the residents," she said.