De Franks v. Mayor & City Council of Ocean City

777 F.2d 185
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 21, 1985
DocketNo. 84-1624
StatusPublished
Cited by2 cases

This text of 777 F.2d 185 (De Franks v. Mayor & City Council of Ocean City) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Franks v. Mayor & City Council of Ocean City, 777 F.2d 185 (4th Cir. 1985).

Opinion

HAYNSWORTH, Senior Circuit Judge.

In two separate incidents, automobiles belonging to couples on vacation in Ocean City, Maryland were towed from private parking lots because of a failure to display required parking permits. In each instance, the automobile owners obtained release of their vehicle upon the payment of a $50 towing and impoundment fee. Each couple requested and obtained a post-impoundment hearing during which one hearing officer ruled that the tow was illegal because the owners had actually obtained a permit, though they had failed to display it. Their $50 payment was refunded. In the other case, the officer ruled that the tow was lawful, even though the owners had obtained a parking permit, because of the requirement of the ordinance that the permit be displayed.

Each couple filed an action under 42 U.S. C.A. § 1983 seeking compensatory and punitive damages, attorney fees, and a declaration that the ordinance was unconstitutional.

The district court upheld the constitutionality of the statute, and we affirm its ruling.

I.

Ocean City, Maryland is a beach resort community on a narrow strip of land. It attracts summer vacationers in large numbers. Its off-season population of approximately 5,000 people swells on summer weekends to approximately 250,000. In Ocean City, there are approximately 10,000 condominium units, 116 hotels containing approximately 6,000 rooms, 800 apartment buildings, and many cottages. In addition, particularly on summer weekends, many visitors come just for a day at the beach without overnight housing. It is estimated that on a summer weekend visitors may come in as many as 75,000 automobiles.

Such an influx of automobile driving visitors obviously cannot be accommodated by public parking available on the streets of Ocean City. In order to attract and retain patronage, the owners of rental units have found it necessary to provide private parking, but they appear to have provided for no more than their own essential needs. Mr. and Mrs. DeFranks rented a unit in Pyramid Condominium where there were 171 units and 171 parking spaces. Mr. and [187]*187Mrs. Barney rented a unit at Braemar Towers Condominium for a week. At Braemar there were 245 units and 261 parking spaces, including two reserved for handicapped individuals and two for service vehicles.

II.

With such a scarcity of parking spaces, unauthorized use of private parking facilities became a concern to Ocean City officials, as well as to the owners of rental housing units seeking to serve the convenience of their patrons. The response was the adoption of an ordinance authorizing the owners of private parking lots to impose a permit requirement. The ordinance required the posting of conspicuous signs to inform arriving automobilists of the permit requirement and warning them that vehicles not displaying the appropriate permit would be towed away. When the owner of a lot found a vehicle on his lot not displaying a permit, he was authorized to call a towing company who would then tow the vehicle to the public impoundment lot where it would be received, inventoried and protected by city employees. The owner could reclaim the vehicle upon payment of the towing and impoundment fees.

As initially enacted, the ordinance contained no provision for a hearing on the question of the lawfulness of the tow of an impounded vehicle. The constitutionality of that action was challenged in Huemmer v. Mayor and City Council of Ocean City, 474 F.Supp. 704 (D.Md.1979), affirmed in part, reversed or vacated in part, and remanded, 632 F.2d 371 (4th Cir.1980). In its opinion, the district court held explicitly that the ordinance was defective because of its failure to provide a post-seizure hearing as to the validity of the tow and the impoundment. We, too, held the ordinance “manifestly defective” because “[n]o opportunity was presented for notice and a hearing to establish whether or not the initial removal of the vehicle was rightful or wrongful.” Id. 632 F.2d at 372.

After the decision of the district court in Huemmer, a revised towing ordinance was enacted as § 98. It retained the old scheme of towing upon the complaint of the owner of the private parking lot, but it added a provision requiring written notice to the owner of the vehicle, within one working day of the tow, of his entitlement to a hearing on the question of legality of the seizure, the hearing to be had within twenty-four hours after a request for it. Thus, the mayor and city council of Ocean City undertook to supply the deficiency that the district court and we had pointed out in the earlier ordinance.

III.

In determining what process is due the owner of an automobile towed and impounded upon a charge that it was illegally parked, the courts have considered those relevant factors identified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Thus, in Sutton v. City of Milwaukee, 672 F.2d 644 (7th Cir.1982), the court held that it was enough that there was a provision for a prompt post-impoundment hearing. The interest of the owner in not having his possessory interest temporarily interrupted the court found to be slight compared with the public interest in having illegally parked vehicles promptly • cleared, even in non-emergency situations. Indeed, a pre-towing hearing would be entirely ineffective, for the vehicle could not be removed until the owner was identified, notified, and offered an opportunity to be heard. By that time, a polite request that the owner remove the offending vehicle would usually be as effective as a towing threat. Moreover, a requirement of a hearing before towing the vehicle would largely destroy the deterrent effect of the towing threat; the operator of a vehicle could park it illegally with full assurance that his automobile would not be moved until, after notice to him, he had an opportunity to move it himself.

Other cases involving the towing of illegally parked vehicles have come to the same conclusion. Cokinos v. District of Columbia, 728 F.2d 502 (D.C.Cir.1983); Goichman v. City of Aspen, 590 F.Supp. 1170 (D.Colo.1984); Goichman v. Rheuban Motors, Inc., 682 F.2d 1320 (9th Cir.1982); [188]*188cf. Stypmann v. City and County of San Francisco, 557 F.2d 1338 (9th Cir.1977) (finding unconstitutional a towing ordinance that provided for a post-seizure hearing within five days for those unable to pay the towing fee).

There are differences between Sutton and those other cases and this one. Those other cases involved the towing of vehicles illegally parked on public streets or public property, and the towing had been directed by a police officer. In this case, the towed vehicles had been parked in private parking lots, and the towing was instigated not by a policeman but by the owner of the lot. Nothing said by the district court or by this court in Huemmer

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