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    Rebel Enterprises v. Palm Beach County, 299 F.3d 1261, 11th Cir. (2002)

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    The court reversed the district court's ruling in favor of the Sheriff of Palm Beach County. The court found that the Sheriff did not have the authority to establish a wrecker operator system and threaten arrests, as the county had never officially adopted such a system as required by Florida law. While various preemption and constitutional issues were raised, the court determined it only needed to address the fact that the Sheriff was not authorized to legislate or institute a system carrying criminal penalties without action by the county commissioners. The case was remanded with instructions to grant injunctive relief to the wrecker operator challenging the Sheriff's actions.

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    Rebel Enterprises v. Palm Beach County, 299 F.3d 1261, 11th Cir. (2002)

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    The court reversed the district court's ruling in favor of the Sheriff of Palm Beach County. The court found that the Sheriff did not have the authority to establish a wrecker operator system and threaten arrests, as the county had never officially adopted such a system as required by Florida law. While various preemption and constitutional issues were raised, the court determined it only needed to address the fact that the Sheriff was not authorized to legislate or institute a system carrying criminal penalties without action by the county commissioners. The case was remanded with instructions to grant injunctive relief to the wrecker operator challenging the Sheriff's actions.

    Original Description:

    Filed: 2002-07-31 Precedential Status: Precedential Citations: 299 F.3d 1261 Docket: 01-15738

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    The court reversed the district court's ruling in favor of the Sheriff of Palm Beach County. The court found that the Sheriff did not have the authority to establish a wrecker operator system and threaten arrests, as the county had never officially adopted such a system as required by Florida law. While various preemption and constitutional issues were raised, the court determined it only needed to address the fact that the Sheriff was not authorized to legislate or institute a system carrying criminal penalties without action by the county commissioners. The case was remanded with instructions to grant injunctive relief to the wrecker operator challenging the Sheriff's actions.

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    16 views6 pages

    Rebel Enterprises v. Palm Beach County, 299 F.3d 1261, 11th Cir. (2002)

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    Scribd Government Docs
    The court reversed the district court's ruling in favor of the Sheriff of Palm Beach County. The court found that the Sheriff did not have the authority to establish a wrecker operator system and threaten arrests, as the county had never officially adopted such a system as required by Florida law. While various preemption and constitutional issues were raised, the court determined it only needed to address the fact that the Sheriff was not authorized to legislate or institute a system carrying criminal penalties without action by the county commissioners. The case was remanded with instructions to grant injunctive relief to the wrecker operator challenging the Sheriff's actions.

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    of 6

    299 F.

    3d 1261

    REBEL ENTERPRISES, INC. a Florida Corporation, d.b.a.


    King's Wrecker Service, Plaintiff-Appellant,
    v.
    PALM BEACH SHERIFF, Robert Neumann, Edward Bieluch,
    Sheriff of Palm Beach County, Defendants-Appellees.
    No. 01-15738.

    United States Court of Appeals, Eleventh Circuit.


    July 31, 2002.
    1

    Usher Bryn, Miami, FL, for Plaintiff-Appellant.

    Thomas D. DeCarlo, Glenn S. Cameron, Cameron, Davis, Gonzalez &


    DeCarlo, P.A., West Palm Beach, FL, for Defendants-Appellees.

    T. Kent Wetherall, Matthew J. Conigliaro, Tallahassee, FL, for State of Florida,


    Amicus Curiae.

    Appeal from the United States District Court for the Southern District of
    Florida.

    Before TJOFLAT and KRAVITCH, Circuit Judges, and DOWD * , District


    Judge.
    DOWD, District Judge:

    I.
    6

    This case was initiated by the appellant, Rebel Enterprises, Inc., a motor vehicle
    wrecker operator, when it sought injunctive relief and damages from the Sheriff
    of Palm Beach County after the Sheriff began threatening to arrest appellant's
    employees for violations of Fla. Stat. 323.002 (1999), which regulates certain
    tow truck activities.

    The district court denied relief and, on appeal, a preemption issue has been the
    centerpiece of the efforts of counsel, including the Attorney General of the

    State of Florida who has filed an amicus curiae brief supporting the district
    court.1
    8

    We decline to address the preemption issue because we conclude that, because


    the County of Palm Beach has never adopted a "wrecker operator system," the
    county Sheriff was simply not authorized to arrest or threaten to arrest the
    employees of the appellant for alleged violations of the applicable Florida
    statutes.

    Therefore, we reverse and remand this action to the district court with
    instructions to grant injunctive relief and any other relief that is deemed proper.

    II.
    10

    The relevant facts are not in dispute. In 1998, the State of Florida enacted a
    statutory scheme which authorizes a county or municipal government to
    establish a "wrecker operator system" designed to prohibit what is commonly
    known as "wreck chasing."2 Where such a system is established, the statute
    prohibits certain conduct by any wrecker operator who has not been designated
    as an "authorized wrecker operator." Anyone who violates the statute in
    specified ways is guilty of a misdemeanor. See Fla. Stat. 323.002.

    11

    The appellee, Sheriff Edward Bieluch3 of Palm Beach County, has established a
    rotational tow operator system for that county. The appellant, Rebel
    Enterprises, Inc., doing business as King's Wrecker Service ("Rebel"), operates
    tow motor vehicles which are designed to remove wrecked vehicles from the
    highway. The appellant has declined participation in the Sheriff's rotational
    system by which a designated "authorized wrecker operator" would be called to
    the scene of an accident or to the aid of a motorist whose vehicle is disabled. In
    December 1999, a deputy sheriff advised Rebel that, if it continued to solicit
    towing services at the scene of a wrecked or disabled automobile, arrests would
    follow. Rebel was also warned not to utilize a police scanner to monitor police
    communications.4

    12

    Rebel filed suit alleging that the enforcement action by the Sheriff has
    prevented it from soliciting business. Ruling on motions for summary
    judgment, the district court held, in relevant part, that 49 U.S.C. 14501(c)(1)
    does not preempt Fla. Stat. 323.002 and that the ban on roadside solicitation
    did not infringe Rebel's First Amendment rights. Final judgment was granted in
    favor of the Sheriff. Rebel appealed.

    III.

    13

    The parties have raised several issues: (1) whether the Florida statute is
    preempted by federal law, or if it falls within the "safety exception" to
    preemption;5 (2) whether the statute constitutes an improper delegation of the
    State's safety regulatory authority; (3) whether the rotation wrecker system at
    issue here falls within the statutory definition of "wrecker operator system;" (4)
    whether Palm Beach County implicitly authorized its sheriff to adopt a
    "wrecker operator system;" and (5) whether the statute constitutes an
    impermissible restriction on commercial speech in violation of the First
    Amendment. We find the fourth issue dispositive and, therefore, decline to
    address any other issues, including the question of preemption.

    14

    Section 323.002(1)(c) of the Florida Statutes defines "wrecker operator system"


    as "a system for the towing or removal of wrecked, disabled, or abandoned
    vehicles,... under which a county or municipality contracts with one or more
    wrecker operators for the towing or removal of wrecked, disabled, or
    abandoned vehicles from accident scenes, streets, or highways."

    15

    The statute provides that, in a county or municipality that operates such a


    system, it is a noncriminal violation punishable by fine "for an unauthorized
    wrecker operator or its employees or agents to monitor police radio for
    communications ... in order to determine the location of a wrecked or disabled
    vehicle for the purpose of driving by the scene [to solicit business.]" Fla. Stat.
    323.002(2)(a). It is a second degree misdemeanor for an unauthorized wrecker
    operator to do either of the following: (1) "before the arrival of an authorized
    wrecker operator, initiate contact with the owner or operator of such vehicle by
    soliciting or offering towing services, and tow such vehicle[;]" or (2) where the
    owner or operator initiates the contact, fail to "disclose to the owner or operator
    of the vehicle that he or she is not the authorized wrecker operator who has
    been designated as part of the wrecker operator system and [fail to] disclose, in
    writing, what charges for towing and storage will apply before the vehicle is
    connected to the towing apparatus." Fla. Stat. 323.002(2)(b), (c). Finally, the
    statute makes it a first degree misdemeanor "for a wrecker operator to falsely
    identify himself or herself as being part of the wrecker operator system." Fla.
    Stat. 323.002(2)(d).

    16

    Under Article VIII of the Florida Constitution, a county is a political


    subdivision of local government for which the board of county commissioners
    is the "governing body." Art. VIII, 1(e). The sheriff and others (e.g., "a tax
    collector, a property appraiser, a supervisor of elections, and a clerk of the
    circuit court") are merely officers of the county. Id., 1(d).
    The Florida Supreme Court has declared:

    17

    [t]he Legislature may not delegate the power to enact a law, or to declare what
    the law shall be, or to exercise an unrestricted discretion in applying a law; but
    it may enact a law complete in itself, designed to accomplish a general public
    purpose, and may expressly authorize designated officials within definite valid
    limitations to provide rules and regulations for the complete operation and
    enforcement of the law within its expressed general purpose....

    18

    Florida State Board of Architecture v. Wasserman, 377 So.2d 653, 655


    (Fla.1979) (emphasis added) (quoting Bailey v. Van Pelt, 78 Fla. 337, 82 So.
    789, 793 (1919)).

    19

    Although 323.002(2) permits a county to "operate[ ] a wrecker operator


    system," the county must still act to adopt the system in the usual legislative
    manner, that is, by formal resolution or ordinance. Once that step has been
    accomplished, then the sheriff would be the logical county officer to enforce
    the provisions. Absent authorization by the governing body of the county, the
    sheriff does not have the authority to institute a system which carries with it the
    possibility of criminal penalties. To put it simply: the sheriff cannot legislate.

    20

    As pointed out by the appellant, there is no record evidence that Palm Beach
    County has ever officially enacted a "wrecker operator system" as is
    contemplated by the Florida statute. The district court improperly credited the
    Sheriff's actions as official legislative actions when it explained that

    21

    the Sheriff's creation and implementation of a rotational tow truck operator


    system is made pursuant to valid delegation of authority to conduct this
    proprietary function, which falls under the judicially recognized "municipal
    proprietor," or "market participant" exception to preemption, and which meets
    the definition of a "wrecker operator system" within the contemplation of
    323.002, Florida Statutes (1999).

    22

    R-3-110, Final Summary Judgment at 7. Although we will not comment on the


    district court's conclusions with respect to preemption,6 we do reject the
    position that legislative authority can be delegated to a county officer. We hold
    to the better view that the statute requires legislative action by the board of
    county commissioners before the sheriff is empowered to control wrecker
    operators by means of a "wrecker operator system."

    IV.
    23

    For the reasons discussed above, we REVERSE the district court's ruling,

    VACATE the final summary judgment, and REMAND with instructions to


    grant injunctive relief and any other relief that is deemed proper.

    Notes:
    *

    Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of
    Ohio, sitting by designation

    In its brief, the State has indicated a four-fold interest in the outcome of this
    case: (1) the validity of its law,i.e., Fla. Stat. 323.002; (2) the safety of its
    roadways; (3) its right to delegate regulatory authority to local government; and
    (4) preservation of the Florida Highway Patrol's wrecker operator system,
    which is nearly identical to the appellee's system.

    Attempts to control "wreck chasing" have apparently generated considerable


    litigation across the country, anchored in the claim that such legislative
    controls are preempted by the Federal Aviation Administration Authorization
    Act, as codified at 49 U.S.C. 14501et seq. The Supreme Court recently
    decided, in a case arising out of the Sixth Circuit, that the federal statute does
    not bar a state from delegating to municipalities and other local units the state's
    authority to establish safety regulations governing motor carriers of property,
    including tow trucks. See City of Columbus v. Ours Garage and Wrecker
    Service, Inc., ___ U.S. ___, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002).

    The original defendant was Sheriff Robert Neumann. When Neumann lost his
    bid for re-election, Edward Bieluch was automatically substituted for Neumann
    in this action

    Under the statute, it is unlawful for an unauthorized wrecker operator to solicit


    business at the scene and/or to monitor communications between the police
    dispatcher and field units in order to determine the location of a wrecked or
    disabled vehicle for the purpose of going to the scene to solicit business

    The State of Florida has also addressed the preemption issue in its amicus brief

    We also acknowledgeR.Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538


    (11th Cir.1998), cert. denied, 526 U.S. 1038, 119 S.Ct. 1334, 143 L.Ed.2d 498
    (1999), a case which held that 49 U.S.C. 14501(c)(1) expressly preempts
    certain ordinances enacted by the City of Atlanta, Georgia. Without
    commenting on R.Mayer's conclusions with respect to preemption, we do note
    that the case is distinguishable because it involved actual ordinances enacted by
    the Atlanta City Council, not a "wrecker operator system" that arose without

    county legislative action, but purely as a result of a county sheriff's longstanding practice.

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