                        REVISED JANUARY 16, 2003
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                       __________________________

                            Case No. 01-10194
                             Summary Calendar
                       __________________________

PETER T COLE
     Plaintiff-Appellant
v.


CITY OF DALLAS
     Defendant-Appellee
       ___________________________________________________
           Appeal from the United States District Court
                for the Northern District of Texas
       ___________________________________________________
                         December 11, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit

Judges.

PER CURIAM:

     On June 20, 2002, in light of its decision in City of Columbus

v. Ours Garage & Wrecker Service, 122 S. Ct. 2226 (2002), the

United States Supreme Court vacated this court’s decisions in

Stucky v. City of San Antonio, 260 F.3d 424 (5th Cir. 2001),

vacated, 122 S. Ct. 2617 (2002), and Cole v. City of Dallas, 277

F.3d 1373 (5th Cir. 2001)(per curiam), vacated, 122 S. Ct. 2617

(2002),   that   49   U.S.C.   §   14501(c)   preempts   municipal   safety

regulations of the towing industry.


                                      1
     Ours Garage held that while 49 U.S.C. § 14501(c) generally

preempts state regulation of the “price, route or service of any

motor carrier,” the statutory exception to this preemption for

“safety regulatory authority of a State with respect to motor

vehicles” saves both state and municipal regulations falling within

its reach from federal preemption.     Ours Garage, 122 S. Ct. at

2237.   Left unresolved in this case on remand from the Supreme

Court is thus whether the district court erred in finding that the

City of Dallas’s Code Chapter 48A, Section 48A-13(a)(7)(A)(xiii) is

a motor vehicle safety regulation under 49 U.S.C. § 14501(c)(2)(A).

     For the reasons stated below, we find that Chapter 48A,

Section 48A-13(a)(7)(A)(xiii) is a motor vehicle safety regulation

under 49 U.S.C. § 14501(c)(2)(A).

                        STANDARD OF REVIEW

     Although the district court denied Cole’s application for a

preliminary injunction, a determination which is generally reviewed

for abuse of discretion, the specific issue relevant to this

inquiry is the district court’s conclusion of law related to Cole’s

declaratory judgment request.   The conclusion that this regulation

is not preempted by federal law is thus reviewed under a de novo

standard of review.   See Kollar v. United Transp. Union, 83 F.3d

124, 125 (5th Cir. 1996); see also Branson v. Greyhound Lines,

Inc., 126 F.3d 747, 750 (5th Cir. 1997) (“We review de novo the

district court’s rulings on preemption.”).



                                 2
                 FACTUAL AND PROCEDURAL PREDICATE

     On January 26, 2000, the City Council for the City of Dallas

(“City”) passed Ordinance No. 21175, which amended Chapter 48A to

prohibit persons from receiving a wrecker driver’s permit to tow

motor vehicles if they have a criminal history including certain

specified criminal convictions, documented mental illnesses or

unsafe driving records. On February 2, 2000, Peter T. Cole applied

for and was denied a wrecker driver’s permit based on Section 48A-

13(a)(7)(A)(xiii)   of   the   Dallas   City   Code.   Section   48A-

13(a)(7)(A)(xiii) prohibits the issuance of a wrecker driver’s

permit to a person who has been convicted of a crime involving a

violation of the Controlled Substances Act (or a comparable state

or federal law) punishable as a felony for which less than five

years have elapsed since the date of conviction or the date of

confinement for the last conviction, whichever is the later date.1

     Cole appealed the permit denial to an assistant city manager.

After holding a hearing in March 2000, the assistant city manager

upheld the permit denial.

     On July 25, 2000, Cole filed suit in state court seeking

injunctive and declaratory relief.      The City removed the case to

federal court.   The district court denied Cole’s application for

     1
          Cole pled guilty to the charge of delivery of a
controlled substance (cocaine) in 1994. He was sentenced to a
ten-year prison term but later received a ten-year term of shock
probation for the crime. This probation was revoked after three
years. He thereafter was sentenced to a five-year prison term
but was released in January 1999.

                                  3
preliminary injunction and later entered judgment against him,

finding that the State had authority to redelegate its regulatory

power     to   the   City   and   that    the   City   properly   utilized   this

authority to pass the “safety” ordinance at issue.

         Cole appealed the district court’s ruling to this court,

specifically arguing that the regulation at issue is preempted by

federal law because (1) the State cannot delegate its regulatory

power to a municipality under the express language of the statute,

and (2) even if the City has jurisdiction to pass a safety

regulation under the statute, this particular regulation falls

outside the safety exception to federal preemption.                   In light of

the City’s acknowledgment that this court’s decision in Stucky

prevented the City, rather than the State itself, from passing a

regulation of this kind, the court vacated the district court’s

judgment and remanded the case.                 As stated, the Supreme Court

subsequently vacated Stucky and this case based on Ours Garage and

remanded both cases to this court for further disposition.

                              PREEMPTION ANALYSIS

         The remaining issue before this court is whether the specific

regulation in dispute, Chapter 48A, Section 48A-13(a)(7)(A)(xiii),

is   a    motor   vehicle    safety      regulation    saved   from   preemption.

Whether this conclusion is correct depends on the parameters of the

safety exception, an issue the Supreme Court expressly declined to




                                           4
answer in Ours Garage.2

      The federal legislation preempts provisions by “a State [or]

political subdivision of a State . . . related to a price, route,

or   service   of   any   motor   carrier       .    .   .   with    respect   to   the

transportation      of    property.”       49       U.S.C.    §     14501(c)   (2000).

However, as an exception to this preemption directive, Congress

provides   that     the   directive    “shall         not    restrict    the   safety

regulatory authority of a State with respect to motor vehicles.”

Id. at § 14501(c)(2)(A).3

      Cole contends that the regulation in this case does not

qualify as an exercise of “safety regulatory authority” under 49

U.S.C. § 14501(c)(2) when the plain language of the statute is

considered.    Cole directs this court’s attention to a Texas court

      2
          Ours Garage, 122 S. Ct. at 2237 (“We express no
opinion, however, on the question whether Columbus’ particular
regulations, in whole or in part, qualify as exercises of ‘safety
regulatory authority’ or otherwise fall within § 14501(c)(2)(A)’s
compass.”).
      3
            The relevant text of the statute reads:
      (c) Motor carriers of property.--
      . . .
      (2) Matters not covered.--Paragraph (1)--
      (A) shall not restrict the safety regulatory authority
      of a State with respect to motor vehicles, the
      authority of a State to impose highway route controls
      or limitations based on the size or weight of the motor
      vehicle or the hazardous nature of the cargo, or the
      authority of a State to regulate motor carriers with
      regard to minimum amounts of financial responsibility
      relating to insurance requirements and self-insurance
      authorization . . . .

49 U.S.C. § 14501(c)(2)(A) (2000) (emphasis added).


                                       5
of appeals decision, Whitten v. Vehicle Removal Corp., 56 S.W.3d

293 (Tex. App. – Dallas 2001, pet. denied), decided before Ours

Garage, which holds that chapter 684 of the Texas Transportation

Code — providing a private cause of action against companies that

violate the state’s regulations governing towing operations — is

not   a   motor   vehicle   safety    regulation   excepted   from   federal

preemption.       We decline to get into an extended discussion of

Whitten.      It is enough to say that Whitten is premised on a

definition of “motor vehicle safety” in 49 U.S.C. § 30102(a)(8).

As the City points out, § 30102(a) contains the definitions for

Chapter 301, entitled “Motor Vehicle Safety,” of Title 49 of the

United States Code, as distinguished from the definitions for

Chapter 145, entitled “Federal-State Relations,” of Title 49, which

includes § 14501.     In addition, the term “motor vehicle safety” is

obviously narrower than the term “safety regulatory authority of a

State with respect to motor vehicles” that was the subject of Ours

Garage and is the subject of this case.

      Although the Supreme Court in Ours Garage did not elaborate on

the specific parameters of the exception under § 14501(c)(2)(A) for

motor vehicle safety regulations, it did opine on the congressional

purpose behind the statute.          See Ours Garage, 122 S. Ct. at 2236

(stating that “Congress’ clear purpose in § 14501(c)(2)(A) is to

ensure [] its preemption of States’ economic authority over motor

carriers of property, § 14501(c)(1), ‘not restrict’ the preexisting

and traditional state police power over safety.”) (emphasis added).

                                       6
The Ours Garage Court anchored this interpretation to Congress’s

desire   to    leave   for    the   states        and   local   governments   those

responsibilities regarding motor carriers that do not relate to the

slender congressional goal of addressing economic authority over

such carriers.      To this end, it concluded that:

     These declarations of deregulatory purpose [addressing
     the economic authority of states over motor carriers],
     however,   do   not  justify   interpreting   through   a
     deregulatory prism "aspects of the State regulatory
     process" that Congress determined should not be
     preempted.
          A congressional decision to enact both a general
     policy that furthers a particular goal and a specific
     exception that might tend against that goal does not
     invariably call for the narrowest possible construction
     of the exception. Such a construction is surely
     resistible here, for § 14501(c)(1)’s preemption rule and
     § 14501(c)(2)(A)’s safety exception to it do not
     necessarily conflict.      The problem to which the
     congressional conferees attended was "[s]tate economic
     regulation"; the exemption in question is for state
     safety   regulation.   Corroboratively,   the   measure’s
     legislative history shows that the deregulatory aim of
     the legislation had been endorsed by a key interest group
     – the American Trucking Association – subject to "some
     conditions that would allow regulatory protection to
     continue for non-economic factors, such as ... insurance
     [and] safety."

Id. (emphasis in original).          Indeed, a survey of the legislative

history reveals that Congress intended to divorce the motor carrier

industry from state and local economic regulation in order to

provide motor carriers such as United Parcel Service the same

competitive      advantages    enjoyed       by    air   carriers   like   Federal

Express.      See, e.g., H.R. CONF. REP. No. 103-677, at 87, reprinted


                                         7
in 1994 U.S.C.C.A.N. at 1759 (“State economic regulation of motor

carrier operations causes significant inefficiencies, increased

costs, reduction of competition, inhibition of innovation and

technology and curtails the expansion of markets . . . The sheer

diversity    of    these    regulatory       schemes       is    a   huge      problem    for

national and regional carriers attempting to conduct a standard way

of doing business.”).

     Against      this     backdrop,    the      court     declines       to      elasticize

Congress’s     economic       goal     by       narrowly        interpreting          “safety

regulatory authority of a State with respect to motor vehicles.”

Our view finds support in Ace Auto Body & Towing, Ltd. v. City of

New York, 171 F.3d 765, 769 (2d Cir. 1999), in which the Second

Circuit addressed whether certain New York City towing laws were

saved from preemption under § 14501(c)(2)(A).                         At issue was the

requirement that tow truck businesses and operators employed by

them be licensed by the New York City Department of Consumer

Affairs to engage in towing.                 To qualify for such a license,

operators had to be at least eighteen years of age, possess an

appropriate       driver’s       license    and     lack        traffic      or      criminal

convictions.      Id.      The     Second        Circuit        held that for these

regulations       to    escape     federal       preemption          under     the     safety

exception, “it is enough, in light of the text and history of

§ 14501(c), that the [] provisions are reasonably related to the

safety aspects of towing disabled vehicles and that the economic

burdens thereby imposed are only incidental.”                        Id. at 777.         With

                                            8
respect to the city’s criminal history regulation (among others),

the court held that “[m]ost of these requirements are so directly

related   to   safety   or   financial     responsibility       and   impose   so

peripheral and incidental an economic burden that no detailed

analysis is    necessary     to    conclude    that   they     fall   within   the

§ 14501(c)(2)(A) exemptions.” Id. at 776.             See also Tocher v. City

of Santa Ana, 219 F.3d 1040, 1051 (9th Cir. 2000) (pre-Ours Garage

case holding that sections of the California Vehicle Code are

exempt from preemption because “[e]ach of these provisions is

designed to make the towing and removal of vehicles safer by

insuring that only professionals tow vehicles and that the removal

does not endanger the general public or the owner of the property

where the vehicle was removed”), cert. denied, 531 U.S. 1146

(2001).

     The Dallas City Council passed the Chapter 48A amendment to

address safety concerns “with respect to motor vehicles,” as

expressly   allowed     by   the   exception    for    motor    vehicle   safety

regulations. The ordinance delineates several safety concerns that

underlie the regulations found in Chapter 48A.                   Chapter 48A’s

stated policy is to protect “the public interest as it relates to

the parking of vehicles on private property and to the removal of

those vehicles to vehicle storage facilities without the consent of

the vehicle owners or operators.”          The specific criminal history

requirement at issue is designed to curtail confrontation between

truck operators and non-consenting vehicle owners.                The ordinance

                                       9
states that:

     [T]he city council believes that the proposed safety-
     related regulations for nonconsensual tows would promote
     the public safety of both visitors and residents of the
     city of Dallas by contributing to a decrease in the
     potential for confrontation and violence between vehicle
     owners and the persons who tow their vehicles; a decrease
     in bodily injury and property damage caused by faulty tow
     truck vehicles and equipment or by incompetent,
     negligent, and criminal actions of tow truck operators
     and drivers . . . .

That the criminal history regulation has, at its core, concern for

safety is manifest.   It is difficult to imagine a regulation with

a more direct protective nexus or peripheral economic burden.

Moreover, despite providing this court with supplemental briefing,

Cole has raised no argument pointing the court to some hidden

pretextual economic goal behind the provision.4

                            CONCLUSION

     The disputed regulation, Section 48A-13(a)(7)(A)(xiii), is a

motor vehicle safety regulation under 49 U.S.C. § 14501(c)(2)(A).

The final judgment of the district court is AFFIRMED.




     4
          The district court’s holding in this case covered all
of Chapter 48A. Our opinion is limited to the specific provision
of Chapter 48A that created Cole’s problem, specifically Chapter
48A, § 48A-13(a)(7)(A)(xiii).

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