• Due Process Did Not Require City to Provide Notice Each Time It Towed Illegally Parked Trailers Owned By Chronic Offender of Parking Ordinance
  • December 2, 2009 | Author: Mona Ebrahimi
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In Lone Star Security & Video, Inc. v. City of Los Angeles, (--- F.3d ----, C.A.9 (Cal.), October 21, 2009), the United States Court of Appeals for the Ninth Circuit considered whether a city violated the due process rights of a corporation when it towed some of the corporation’s trailers without advance notice. The Court of Appeals held that due process did not require the city to provide notice to the corporation, who was a chronic offender of the parking ordinance at issue, each time it towed a trailer.

    This Legal Alert replaces our previous Legal Alert entitled, “City Did Not Have To Give Advance Notice To Tow Illegally Parked Trailers Owned By Chronic Offender Of Parking Ordinance,” August 18, 2009.

    Lone Star Security & Video, Inc. (“Lone Star”), sells home and business security systems. To market its business, Lone Star attached advertisements to mobile trailers and then parked them for extended periods of time on residential streets in the City of Los Angeles (“City”). City has an ordinance which prohibits “parking in an otherwise legal public spot ‘for more than 72 hours in the aggregate during any period of 73 consecutive hours.’” A vehicle is deemed to have been left standing or parked for “72 hours unless during that period [it] is either driven a minimum of one mile after leaving the location where it has been parked or left standing, or within that period, is removed from any highway, street or alley.”

    Over the period of several years, the Los Angeles Police Department (“LAPD”) and the Los Angeles Department of Transportation (“LADOT”) officers had towed and impounded 77 trailers that Lone Star had left parked longer than 72 hours in violation of the ordinance. Both departments attach formed notices to a vehicle to inform the owner that the vehicle may be towed because it has been parked for more than 72 hours. City policy requires that officers from LAPD and LADOT to attach a notice form to any vehicle that belongs to a first-time offender. Individual officers, however, have discretion to decide whether to attach one of these forms to the vehicle of a repeat offender. Lone Star does not dispute that it received multiple notices of violation of the ordinance. In addition to 77 of its trailers being towed, Lone Star also received hundreds of citations for violating City’s ordinance.

    Lone Star filed a lawsuit in California state court, which it later voluntarily dismissed. Lone Star then filed a lawsuit in federal court alleging that it’s due process rights were violated because (1) City failed to provide adequate notice before towing the vehicles, and (2) the ordinance is invalid because it is preempted by the California Vehicle Code. The federal district court granted summary judgment in favor of Lone Star on the preemption issue, but also held that City did not have to provide Lone Star notice each time it towed one of its vehicles.

    The Court of Appeals held that the district court should have rejected Lone Star’s claim that the ordinance is invalid. Lone Star asserted that its due process rights under 42 U.S.C. § 1983 were violated solely by the fact that City was acting under an ordinance that is invalid under California law. The court found Lone Star’s claim fails as a matter of law and reversed the district court’s grant of summary judgment on the invalid-ordinance claim.

    Lone Star cannot assert a substantive due process violation because it concedes City’s ordinance serves the rational purpose of encouraging the removal of vehicles parked for 72 hours in a public place. Lone Star also cannot establish a colorable procedural due process claim by simply asserting that the ordinance contravenes California law. “To satisfy procedural due process, a deprivation of life, liberty, or property must be ‘preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Lone Star asserted that if City’s ordinance is invalid under California law, “it necessarily fails to provide a level of notice sufficient to satisfy due process.” The court rejected this rigid interpretation of the requirements of procedural due process. The question is not whether City’s ordinance is defective under state law “but whether the City, in implementing the ordinance, provided the level of notice required whenever the government ‘alter[s] substantive rights through enactment of rules of general applicability.’” Lone Star did not allege that City was deficient in enacting the ordinance or in giving those affected by the ordinance an opportunity to become familiar with the ordinance and comply with its terms.

    The Court of Appeals rejected Lone Star’s claim that City was required to provide advance notice each time it towed a trailer. Although it was City’s policy to notify first-time offenders before towing their vehicles, City left it to the discretion of individual officers to decide whether to provide such notice to repeat offenders. “Due process ‘require[s] that notice generally be given before the government may seize property.’” There are numerous exceptions to the general rule such as where there is an emergency, where “notice would defeat the entire point of the seizure,” or “when the interest at stake is small relative to the burden that giving notice would impose.” In order to determine if notice was required under the circumstances, the court was required to weigh the private interest of Lone Star versus the governmental interest of City.

    Here, the Court concluded that City’s notice policy did not violate Lone Star’s due process rights. First, the Court recognized that “[t]he uninterrupted use of one’s vehicle is a significant and substantial private interest.” Lone Star, however, was not using the trailers for transportation, but, rather, as an advertising medium. Lone Star continued to violate the ordinance even though it knew its trailers were subject to towing without individualized notice. The Court stated, “Were violating the ordinance unprofitable, we presume that Lone Star would stop violating it.” Second, although there is a risk of erroneous towing of a first-time offender’s vehicle under the ordinance, this risk is considerably reduced for repeat offenders such as Lone Star. Third, the government has a valid interest in implementing parking regulations to prevent vandalism, abate nuisances, and deter repeat offenders.

    City’s interests in implementing the parking ordinance “outweigh Loan Star’s uniquely low interest in additional, individualized notices.” The Court concluded that the towings did not violated Lone Star’s due process rights.