Going Tow-to-Tow With the Law


Using a little-noticed gap in federal law, a Santa Ana-based tow truck operator has been able to haul hundreds of cars off private lots without informing police or the car owners.

Patrick Tocher II, who owns California Coastal Towing, was granted the right to tow the cars by winning a federal injunction barring the city of Santa Ana from enforcing local towing regulations, which set rates and require that cars be towed from private parking lots only when a signed request is made.

Pending appellate court action in the case could set national precedent concerning the regulation of tow truck drivers.

Tocher, as a result of the injunction, has obtained contracts to haul away cars parked illegally on private property, including apartment complexes, and charges higher rates than would have been allowed under Santa Ana regulations.

Police estimate that the company tows anywhere from two to 20 cars a night--eliciting protests about excessive rates and no warning that the cars will be towed. The city is appealing the injunction.

Tocher has also sued in an attempt to win similar concessions in Costa Mesa, Tustin, Anaheim, Fullerton, Westminster, Huntington Beach and Orange.

"It was just something that had to be done," said Tocher, who said he filed the suit over frustration with what he saw as harassment of his tow truck drivers. He also is seeking more than $2 million from Santa Ana, Costa Mesa and Tustin for damages he said his business suffered from police enforcement of ordinances that he argues have been superseded by the federal law.

Some disagree vehemently with his tactics.

"I believe it's piracy," said Arthur Lucero, patrol operations manager for E.C. Team Patrol, a private security firm whose employees have witnessed California Coastal impounding cars from private property. "He's waving this injunction around like a MasterCard."

If Tocher prevails in court, the cases could set national standards for how freely towing firms can operate, according to lawyers involved in the case. At least eight similar legal challenges have surfaced nationwide, but none have progressed as far as Tocher's. A challenge by Houston tow truck operators was dropped last year after the City Council scrapped most of its towing regulations. Towing operators agreed to annual drug tests for drivers and improved safety standards and training programs.

"There is no other similar case in the federal appellate court system in the country," said Robert J. Wheeler, chief assistant city attorney for Santa Ana. "This is a very important case that affects cities throughout the country. It's a possible landmark."

Law Was Intended to Protect Deliveries

At the heart of the issue is a 1994 federal law aimed at streamlining regulations for United Parcel Service and other shippers. The law inadvertently barred states and municipalities from enforcing local ordinances on the conduct of tow truck operators, regulations that usually include protections against the unauthorized towing of motor vehicles.

The error was noticed almost immediately, said James Zoia, an aide to Rep. Nicholas Rahall Jr. (D-W. Va.), who was involved in drafting the legislation. But efforts to correct the error collapsed under a flurry of amendments as Congress ended its session.

When the new Republican-controlled Congress convened in January 1995, attempts at re-regulating the industry were limited to compromise legislation that allows municipalities to set rates for vehicles towed without the owner's consent.

"Congress never should have limited the cities' right to regulate what is a local concern," said Moses Johnson, deputy city attorney for Anaheim. "The law may interpret interstate commerce broadly, but as a practical matter the towing of vehicles usually, at best, only crosses city lines. This ought to be an area that cities can regulate."

An undercurrent to the debate is whether Congress really intended to give free rein to tow truck operators.

"We're really putting that before the court, to have that reviewed," said Thomas J. Feeley, a Los Angeles lawyer representing the city of Costa Mesa. "Undoubtedly it's going to have to go up to the high courts, because this is a nationwide issue."

For Graham and Bahara Stapelberg, the issue is local. And personal.

The Laguna Beach couple arrived at Santa Ana's Galaxy Theater for a private function one July night to find the parking lot full. Businesses in the adjoining Lake Center Business Park were closed for the day, so the couple slipped their station wagon into the parking lot.

They figured there would be no problem.

They figured wrong.

Workers for California Coastal Towing hauled the Stapelbergs' car--and at least four others that night--to a nearby storage lot, whose owner contracts with the company to remove cars parked illegally.

It cost the Stapelbergs $200 to get their car back--some $60 more than the city ordinance would have allowed.

"It's a pretty violating thing to know that someone can just take your car and demand cash for it," said Bahara Stapelberg, 26. "And the cops can't do anything about it. Things like that should not be happening."

Tocher says his legal assault on the ordinances began over his growing frustration with the way Santa Ana police dealt with his business.

He said his business permit was suspended twice--once for three weeks--over disputes about whether he had the proper permit. City codes said only firms engaging in emergency towing needed permits; Tocher said police shut him down even though he didn't perform emergency towing.

Tocher said he was also required to obtain permits from any city in which his trucks did business even though his firm was based in Santa Ana.

"What they want is the money," Tocher said. "They were extorting money out of these small business guys."

Some Call Company's Methods Unfair

Tocher said he saw an article about the new federal law in a towing industry publication. In March 1995, he filed a lawsuit against Santa Ana asking that the courts rule that the federal laws preempt state and local towing ordinances.

After lengthy filings, U.S. District Judge Alicemarie Stotler granted the injunction Dec. 30, 1996.

The city of Santa Ana has appealed the injunction to the U.S. 9th Circuit Court of Appeals. It is uncertain when a ruling will come.

In the second lawsuit, Tocher seeks to have the same judge order the cities of Huntington Beach, Westminster, Costa Mesa, Orange, Fullerton and Anaheim to stop enforcing their ordinances. It also seeks to void local requirements that Tocher get a business license in each city.

Exacerbating emotions in the legal squabble are what some critics contend are heavy-handed and opportunistic tactics by California Coastal.

Armando Rodriguez, 38, of Santa Ana, said he decided to stop at a neighborhood bar just before the 2 a.m. closing time last summer. As he parked in a store lot across the street, he said, he noticed a tow truck parked toward the rear of the lot. A passenger in the truck was drinking a beer, he said, so he decided they were off duty.

But when he came back out 20 minutes later, both the truck and his car were gone. It cost $200 to get the car back from California Coastal's lot, which was a few blocks away.

"I still see them driving around looking for cars," said Rodriguez, who lives in the neighborhood. "They always get them."

Tocher has no sympathy, noting that the owners of the parking lots he monitors want him to remove cars that don't belong there.

"They're [complaining] about it because they parked illegally," Tocher said.

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