OPINION AS RENDERED FROM THE BENCH
ROBERT L. TAYLOR, District Judge.
This suit was filed by Mr. James C. Hale against the Mayor of Knoxville, The Chief of Police and two individual officers. Both the City and Mr. Hale have moved for summary judgment. The principal issue in the case is whether the City Ordinance providing for the confiscation and impoundment of illegally parked automobiles by officers of Knoxville comports with the Due Process requirements of the Fourteenth Amendment.
The Ordinance
is contained in Chapter 26, Article XVII of the Code of Knoxville.
The facts are not disputed. Hale owns a television repair shop on Magnolia Avenue adjacent to the fair grounds. During the week of September 9, 1979, the City posted temporary “No Parking” signs in that area, and specifically in front of Mr. Hale’s shop. On September 10, after having asked Hale and his son to move Hale’s 1976 Ford van from the “No Parking” zone, the defendant police officers towed it to the Pound. It was retrieved later that day after Hale paid a towing fee of $40.00.
On September 11, Hale phoned John H. Murrian, an Executive Assistant to Mayor Tyree, complaining that his van had been wrongfully towed in violation of certain alleged assurances from the City that Hale would be allowed to use the area for loading and unloading purposes. Murrian interceded and was successful in getting the $40.00 returned to Hale. He also suggested to the Traffic Engineering Department that the “No Parking” signs be replaced with 15-minute parking signs, which they were.
On September 12, Hale’s 1976 brown van was impounded for violation of the 15-min-ute parking zone. The van was released to Hale on September 20 upon payment of $92.00 towing and storage fee. Plaintiff’s only effort to recover this amount has been the filing of the present lawsuit.
On the foregoing facts Hale seeks a declaratory judgment and injunctive relief, claiming that the Ordinance is unconstitutional in that it:
maker on the merits of the violation giving rise to the tow.
(1) Does not provide for prior notice or opportunity for hearing before seizure of a vehicle.
(2) Requires payment of towing and storage fees without opportunity for a hearing before an owner can recover his impounded vehicle.
(3) Does not in any event provide for any type of hearing before an impartial decision
The Ordinance provides for the removal of any vehicle which is parked in violation of the City Code, or which is obstructing traffic, or which is being driven by a driver who is being arrested or which is “abandoned, inoperative or dismantled” or stolen, or which is the subject of two or more delinquent parking tickets. In addition, if a police officer deems it impracticable or inadvisable to tow a vehicle when he witnesses the infraction, he may place the “pound tag” on it directing the owner to pay the fee which would have been charged had the vehicle in fact been impounded. If such fee is not paid within five days, the vehicle may be towed without notice. Sections 26-1701, 26-1705. The Ordinance further provides for a schedule of towing and storage fees which must be paid by the owner or his representative before he may recover his vehicle. Section 26-1703.
The only recourse available to the owner is provided for in Section 26-1703(d) and (e), which states:
(d) In each case the officer in charge shall give proper receipt for the fee paid and where the owner or his authorized agent denies the violation, under oath, the receipt shall be marked “paid under protest.”
(e) Where fees are “paid under protest,” said complaint shall be forwarded to the Chief of Police or his designated representative for review, with any refunds to be recommended by the same.
The City claims that plaintiff is barred from recovery for failure to exhaust his state administrative remedies.
Myers v. Bethlehem Shipbuilding Corp.,
303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638. We do not agree. The informal appeal to the Mayor’s Executive Assistant is neither desirable nor prescribed by the statute. And in view of the holding of this Court today, requiring plaintiff to pursue his avenue of review by the Chief of Police would be forcing him to do a futile act.
One of the main issues is whether the provision for towing a vehicle to the impound lot without prior notice or opportunity for hearing violates the requirements of the Due Process Clause of the Fourteenth Amendment. Constitutional Due Process requires an opportunity for a hearing before the state or city may deprive a person of his property, absent exceptional circumstances.
Armstrong v. Manzo,
380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62;
Boddie v. Connecticut,
401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113;
Fuentes v. Shevin,
407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. The Supreme Court has held a temporary, nonfinal deprivation of property is nevertheless a deprivation.
Fuentes, supra,
84-85, 86, 92 S.Ct. 1996, 1997. Other courts have recognized a protected interest in a person’s continued use of his automobile, especially for business.
Stypmann v. San Francisco,
557 F.2d 1338 (9th Cir. 1977). Since the ordinance in question requires what amounts to the temporary deprivation of either a person’s automobile or his money, a property interest is involved.
The issue thus narrows down to whether the ordinance provides for an opportunity to be heard at “a meaningful time” and “in a meaningful manner.”
Armstrong, supra,
380 U.S. at 552, 85 S.Ct. at 1191;
Boddie, supra,
401 U.S. at 378, 379, 91 S.Ct. at 786, 787. It is not necessary that an opportunity to be heard be granted prior to the deprivation in every situation. In
Fuentes v. Shevin,
the Supreme Court announced a three-part test for when the hearing may be had subsequent to the deprivation.
First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. 407 U.S. at 91, 92 S.Ct. at 2000.
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OPINION AS RENDERED FROM THE BENCH
ROBERT L. TAYLOR, District Judge.
This suit was filed by Mr. James C. Hale against the Mayor of Knoxville, The Chief of Police and two individual officers. Both the City and Mr. Hale have moved for summary judgment. The principal issue in the case is whether the City Ordinance providing for the confiscation and impoundment of illegally parked automobiles by officers of Knoxville comports with the Due Process requirements of the Fourteenth Amendment.
The Ordinance
is contained in Chapter 26, Article XVII of the Code of Knoxville.
The facts are not disputed. Hale owns a television repair shop on Magnolia Avenue adjacent to the fair grounds. During the week of September 9, 1979, the City posted temporary “No Parking” signs in that area, and specifically in front of Mr. Hale’s shop. On September 10, after having asked Hale and his son to move Hale’s 1976 Ford van from the “No Parking” zone, the defendant police officers towed it to the Pound. It was retrieved later that day after Hale paid a towing fee of $40.00.
On September 11, Hale phoned John H. Murrian, an Executive Assistant to Mayor Tyree, complaining that his van had been wrongfully towed in violation of certain alleged assurances from the City that Hale would be allowed to use the area for loading and unloading purposes. Murrian interceded and was successful in getting the $40.00 returned to Hale. He also suggested to the Traffic Engineering Department that the “No Parking” signs be replaced with 15-minute parking signs, which they were.
On September 12, Hale’s 1976 brown van was impounded for violation of the 15-min-ute parking zone. The van was released to Hale on September 20 upon payment of $92.00 towing and storage fee. Plaintiff’s only effort to recover this amount has been the filing of the present lawsuit.
On the foregoing facts Hale seeks a declaratory judgment and injunctive relief, claiming that the Ordinance is unconstitutional in that it:
maker on the merits of the violation giving rise to the tow.
(1) Does not provide for prior notice or opportunity for hearing before seizure of a vehicle.
(2) Requires payment of towing and storage fees without opportunity for a hearing before an owner can recover his impounded vehicle.
(3) Does not in any event provide for any type of hearing before an impartial decision
The Ordinance provides for the removal of any vehicle which is parked in violation of the City Code, or which is obstructing traffic, or which is being driven by a driver who is being arrested or which is “abandoned, inoperative or dismantled” or stolen, or which is the subject of two or more delinquent parking tickets. In addition, if a police officer deems it impracticable or inadvisable to tow a vehicle when he witnesses the infraction, he may place the “pound tag” on it directing the owner to pay the fee which would have been charged had the vehicle in fact been impounded. If such fee is not paid within five days, the vehicle may be towed without notice. Sections 26-1701, 26-1705. The Ordinance further provides for a schedule of towing and storage fees which must be paid by the owner or his representative before he may recover his vehicle. Section 26-1703.
The only recourse available to the owner is provided for in Section 26-1703(d) and (e), which states:
(d) In each case the officer in charge shall give proper receipt for the fee paid and where the owner or his authorized agent denies the violation, under oath, the receipt shall be marked “paid under protest.”
(e) Where fees are “paid under protest,” said complaint shall be forwarded to the Chief of Police or his designated representative for review, with any refunds to be recommended by the same.
The City claims that plaintiff is barred from recovery for failure to exhaust his state administrative remedies.
Myers v. Bethlehem Shipbuilding Corp.,
303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638. We do not agree. The informal appeal to the Mayor’s Executive Assistant is neither desirable nor prescribed by the statute. And in view of the holding of this Court today, requiring plaintiff to pursue his avenue of review by the Chief of Police would be forcing him to do a futile act.
One of the main issues is whether the provision for towing a vehicle to the impound lot without prior notice or opportunity for hearing violates the requirements of the Due Process Clause of the Fourteenth Amendment. Constitutional Due Process requires an opportunity for a hearing before the state or city may deprive a person of his property, absent exceptional circumstances.
Armstrong v. Manzo,
380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62;
Boddie v. Connecticut,
401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113;
Fuentes v. Shevin,
407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. The Supreme Court has held a temporary, nonfinal deprivation of property is nevertheless a deprivation.
Fuentes, supra,
84-85, 86, 92 S.Ct. 1996, 1997. Other courts have recognized a protected interest in a person’s continued use of his automobile, especially for business.
Stypmann v. San Francisco,
557 F.2d 1338 (9th Cir. 1977). Since the ordinance in question requires what amounts to the temporary deprivation of either a person’s automobile or his money, a property interest is involved.
The issue thus narrows down to whether the ordinance provides for an opportunity to be heard at “a meaningful time” and “in a meaningful manner.”
Armstrong, supra,
380 U.S. at 552, 85 S.Ct. at 1191;
Boddie, supra,
401 U.S. at 378, 379, 91 S.Ct. at 786, 787. It is not necessary that an opportunity to be heard be granted prior to the deprivation in every situation. In
Fuentes v. Shevin,
the Supreme Court announced a three-part test for when the hearing may be had subsequent to the deprivation.
First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. 407 U.S. at 91, 92 S.Ct. at 2000.
We think that the towing provision of the Ordinance does violate the Due Process Clause, except insofar as it allows for summary towing of vehicles impeding the flow of traffic or otherwise jeopardizing the public welfare. But even in situations which fall within this narrow exception, notice and an opportunity for hearing before a neutral official must be provided as soon as practicable.
Another issue is whether the provision requiring payment of towing and storage fees before an impounded vehicle may be recovered by its owner and without prior opportunity for hearing on the merits of the violation violates the Due Process Clause. We are of the opinion that it does. The situation simply does not fall within the narrow exception to the predeprivation hearing requirement outlined in
Fuentes.
There is no important governmental interest in immediate payment of the fees. Nor is there “a special need for very prompt action.”
See Remm v. Landrieu,
418 F.Supp. 542 (E.D.La.1976). The City can secure the owner’s bond pending a hearing on the merits. Accordingly, in this case, the City must return Mr. Hale’s $92.00 pending a hearing consistent with this opinion.
Finally, does the provision for review of the propriety of the tow by the Chief of Police comply with the Clause. The Chief of Police is not the “neutral official” contemplated by the Due Process Clause of the Fourteenth Amendment.
Fuentes, supra,
407 U.S. at 83, 92 S.Ct. at 1995.
The Court concludes that the Ordinance is unconstitutional insofar as it does not provide for a hearing by a neutral official before payment of towing and storage fees, and insofar as it provides for summary seizure of abandoned vehicles which are not blocking traffic. It is a proper Ordinance, however, insofar as it provides for removal of vehicles which impede the flow of traffic.
For the foregoing reasons, the defendants must be enjoined from further enforcement of the Ordinance, except as is consistent with this opinion.
Order Accordingly.