Request By:
Mr. Daniel R. Braun
Asst. City Solicitor
Department of Law
City of Newport
Fourth and York Streets
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of August 15 in which you raise the following question:
"Can the City of Newport (second class) enact a towing ordinance under 'Home Rule' powers for violations of various city traffic ordinances, i.e., expired parking permits, expired parking meters, tow away zones, etc?"
There is no question that the city can enact an ordinance regulating traffic under its Home Rule power as expressed in KRS 82.082 that could include towing away vehicles under certain conditions. As a matter of fact, prior to the enactment of the Home Rule statute in 1980 there are numerous cases declaring that the city is vested with all reasonable police power including the regulation of parking vehicles on the streets in the city and under such power has the right to provide means of enforcing reasonable regulations. See
City of Louisville v. Louisville Automobile Club, 299 Ky. 241, 161 S.W.2d 663 (1942),
Adams v. Burke, 308 Ky. 722, 215 S.W.2d 513 (1948) and
Allsmiller v. Johnson, 309 Ky. 695, 218 S.W.2d 28 (1949). The question is how far the city can go with a tow away provision in its traffic control ordinance.
The general rule regarding towing ordinances, as expressed in McQuillin, Mun. Corps., Vol. 7, Sec. 24.228, appears to be that they are subject to the 14th Amendment requirements which, except for emergencies, entitle the owner of the vehicle to some sort of notice and hearing prior to the vehicle's removal. Of course the 14th Amendment requirements would not apply to the removal of motor vehicles abandoned or disabled in the streets of the city so as to promote the free flow of traffic therein as also pointed out in McQuillin. Since we find no Kentucky cases dealing with the validity of a towing ordinance, we will quote certain excerpts from Section 24.228 which are based on numerous federal court cases covering this general subject. The following excerpts are taken from this section in McQuillin:
". . . Unquestionably, a municipality may make provision for the removal of motor vehicles abandoned or disabled in its streets so as to promote the free flow of traffic therein. . . . Municipal ordinances authorizing police towing are subject to Fourteenth Amendment requirements of 'rudimentary due process' which, except for emergency situations, entitle the vehicle owner to some form of notice and hearing prior to removal of his vehicle. At least one court has held, however, that prior notice and an opportunity for a hearing need not be afforded an owner whose vehicle is illegally parked. Of course, where an automobile owner has failed to maintain proper identification data as required by law, thus precluding a reasonably expeditious record search which might identify him, notice, if possible at all, may be postponed until after towing. . . . A city need not, it seems, comport with the procedural due process safeguards of notice and hearing where it chooses to use an immobilization technique, such as a police boot, as an alternative to towing or mere ticketing, at least on automobiles illegally parked on private property. But some forum should be provided to the owner to challenge, before collection of a fee to lift the immobilization, the propriety of assessing as well as collecting such fee."
In view of the above text citation, it would appear that any traffic control ordinance enacted by the city should include provisions giving the owner of a vehicle found in violation of parking requirements, such as expired parking permits or meters, due notice and an opportunity to appear at the police department, for example, except in cases of emergency or in situations involving disabled or abandoned vehicles. Also, a towing provision applicable to an area marked as a tow-away zone would constitute adequate notice in itself.
The city could also consider as pointed out in McQuillin the technique of utilizing a so called police boot as an alternative to towing or ticketing.