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Published: Wednesday, 5/10/2006

Several charges against city over tow lot dismissed

U.S. District Judge James Carr yesterday dismissed numerous charges that a towing company made against the city of Toledo during its effort to open a citywide tow lot. However, he let stand for now two incidents where the company was temporarily dropped from the city rotation to pick up police-ordered tows.

Judge Carr overruled Magnum Towing & Recovery's motion for partial summary judgment. He said Magnum, 3400 South Ave., lacked standing to fight a $10 remittance fee, and that the fee is constitutional.

"All the legislative actions Magnum challenges are valid, regardless of the fact that Magnum received no individual due process before their enactment and implementation," the judge said in his ruling.

Those actions the company challenged include the imposition of the remittance fee, changes in the rates for police-ordered tows, the opening of the city-owned lot, and the requirement that police-ordered tows be taken to that lot.

He said Magnum's best avenue to address its concerns is through the political process.

However, he didn't dismiss a Magnum due-process claim over two removals from the towing rotation: once for failing to meet city code requirements, and again for not paying a quarterly remittance fee.

The tow company claimed it received permission to operate out of its lot before meeting all city code requirements and that the city intentionally misplaced its fee payment in retaliation.

Judge Carr declined to grant summary judgement on the first claim because both parties had not developed an adequate factual basis for adjudicating the claim, and he said that Magnum would have to prove the second claim at trial.

Magnum also claimed tow operators are subject to regulation by the Public Utilities Commission and not local ordinances, according to state law.

The judge said that the preemption, however, does not apply to municipal ordinances regulating business entities within local territorial limits.

The order also stated that Magnum cannot claim breach of contract for secondary tows to auctions because it does not have a written agreement with the city on the secondary tows. The order also stated that under state law, a municipality is not liable for unjust enrichment, or quasi or implied contracts.

Acting city Law Director John Madigan said he had not seen the ruling.

City officials had said the city-owned tow lot in North Toledo would result in motorists being able to pay their towing fees and reclaim their vehicles at one location.



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