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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
TERRY RAMEY, d/b/a RAMEY WRECKER SERVICE, Plaintiff, v. HONORABLE
MICHAEL F. EASLEY, The Governor of the State of North Carolina,
the DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, the NORTH
CAROLINA HIGHWAY PATROL, and JOHN DOES 1-4, Defendants
Filed: 20 June 2006
Administrative Law_wrecker services_safety exception_not preempted by federal law
The trial court did not err by granting summary judgment for defendants in an action
challenging the Highway Patrol's regulation of private wrecker services. The General Assembly
delegated to the Department of Crime Control and Public Safety and the Highway Patrol the
authority to make regulations governing inclusion in the Patrol's Wrecker Rotation List. Those
regulations are not preempted by federal law because they fall within the safety regulation
exception of 49 U.S.C. § 14501(c)(2)(A).
Appeal by plaintiff from order entered 15 July 2005 by Judge
Ronald K. Payne in Haywood County Superior Court. Heard in the
Court of Appeals 11 May 2006.
McLean Law Firm, P.A., by Russell L. McLean, III, for
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for defendants-appellees.
Terry Ramey d/b/a Ramey Wrecker Service (plaintiff) appeals
from order entered denying his motion for summary judgment and
granting summary judgment in favor of The Honorable Michael F.
Easley, the Department of Crime Control and Public Safety
(DCCPS), the North Carolina Highway Patrol (Highway Patrol),
and John Does 1-4 (collectively, defendants). We affirm.
Plaintiff owns and operates Ramey's Wrecker Service in Haywood
County and uses trucks and equipment to tow motor vehicles. TheNorth Carolina Department of Public Safety and Crime Control adopted
rules and regulations governing private companies and equipment
included on the Wrecker Rotation Services List maintained by the
Highway Patrol. These rules and regulations became effective on 1
April 2001. Any wrecker service desiring to be included and remain
on the Highway Patrol's Wrecker Rotation Services List is required
to meet certain regulations contained in the North Carolina
Administrative Code. Plaintiff's business was included on the
Highway Patrol's Wrecker Rotation Services List. Plaintiff was
removed from the Wrecker Rotation Services List for failing to: (1)
respond to at least 75% of the calls made to him by the Highway
Patrol; (2) maintain a current Department of Transportation
inspection sticker on his large wrecker; and (3) have proper cables
installed on his wreckers.
Plaintiff initially filed a complaint in the Haywood County
District Court against Governor Easley, DCCPS, the Highway Patrol,
John Does 1-6, and the Department of Transportation Highway Division
(DOT). Plaintiff voluntarily dismissed with prejudice his claims
against the DOT and John Does 5 and 6. Plaintiff sought a
declaratory judgment for the wrecker rotation regulations to be
declared illegal. He asserts federal law preempts the Highway
Patrol's ability to establish regulations for private wrecker
companies to be included on its Wrecker Rotation Services List.
Plaintiff also sought money damages for an alleged interference with
business advantage. Defendants moved for summary judgment arguing the declaratory
judgment and money damages plaintiff sought were barred by the
doctrine of sovereign immunity. Plaintiff also moved for summary
judgment. The trial court denied summary judgment for plaintiff and
granted summary judgment in favor of defendants. Plaintiff appeals.
Plaintiff argues the trial court erred by
: (1) failing to
grant partial summary judgment in favor of plaintiff because the
Highway Patrol has no grant of rule-making authority and no
authority to regulate private wrecker businesses; and (2) granting
summary judgment in favor of defendants because federal law preempts
the rules promulgated by defendants.
III. Standard of Review
Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). The
evidence must be considered in a light most favorable to the
non-moving party. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d
247, 249 (2003). When reviewing a lower court's grant of summary
judgment, our standard of review is de novo. Id.
In most cases, the denial of a motion for
summary judgment establishes only that there is
a genuine issue of material fact, and the
ruling does not dispose of the case. However,
in the instant case, the denial of
[plaintiff's] summary judgment motion and the
grant of summary judgment in favor of . . .
defendants disposed of the cause as to allparties and left nothing to be judicially
determined by the trial court. Therefore,
[plaintiff's] appeal of the denial of its
summary judgment motion and the grant of
summary judgment in favor of defendants was a
final judgment on the merits of the case,
instead of being an interlocutory appeal.
Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999).
Plaintiff sought for a declaratory judgment. See N.C. Gen.
Stat. § 1-253 (2005) (Courts of record within their respective
jurisdictions shall have power to declare rights, status, and other
legal relations, whether or not further relief is or could be
claimed. . . . The declaration may be either affirmative or negative
in form and effect; and such declarations shall have the force and
effect of a final judgment or decree.). We review issues of
statutory construction de novo. A&F Trademark, Inc. v. Tolson, 167
N.C. App. 150, 153-54, 605 S.E.2d 187, 190 (2004), cert. denied, __
U.S. __ , 163 L. Ed. 2d 62 (2005).
IV. Summary Judgment in Favor of Plaintiff: Statutory Authority
Plaintiff asserts the trial court erred in failing to grant
summary judgment in his favor and argues the Highway Patrol has no
grant of rule making authority. We disagree.
Article II, Section 1 of the North Carolina Constitution vests
the legislative power in the General Assembly. N.C. Const. art. I,
sec. 1. The General Assembly is constitutionally prohibited from
delegating its law making power to any other branch or agency which
it may create. Adams v. North Carolina Dep't of Natural & Economic
Resources, 295 N.C. 683, 696, 249 S.E.2d 402, 410 (1978).
However, it has long been recognized by this
Court that the problems which a modernlegislature must confront are of such
complexity that strict adherence to ideal
notions of the non-delegation doctrine would
unduly hamper the General Assembly in the
exercise of its constitutionally vested powers.
A modern legislature must be able to delegate
-- in proper instances -- a limited portion of
its legislative powers to administrative bodies
which are equipped to adapt legislation to
complex conditions involving numerous details
with which the Legislature cannot deal
directly. Thus, we have repeatedly held that
the constitutional inhibition against
delegating legislative authority does not
preclude the legislature from transferring
adjudicative and rule-making powers to
administrative bodies provided such transfers
are accompanied by adequate guiding standards
to govern the exercise of the delegated powers.
Id. at 696-97, 249 S.E.2d at 410 (internal quotations omitted)
N.C. Gen. Stat. § 20-184 (2005) provides:
The Secretary of Crime Control and Public
Safety, under the direction of the Governor,
shall have supervision, direction and control
of the State Highway Patrol. The Secretary
shall establish in the Department of Crime
Control and Public Safety a State Highway
Patrol Division, prescribe regulations
governing said Division, and assign to the
Division such duties as he may deem proper.
(emphasis supplied). N.C. Gen. Stat. § 20-188 (2005) provides,
[the Highway Patrol] shall be subject to such orders, rules and
regulations as may be adopted by the Secretary of Crime Control and
Public Safety. N.C. Gen. Stat. § 20-188 also delegates to the
Highway Patrol the duty to enforce all laws and regulations
respecting travel and the use of vehicles upon the highways of the
Plaintiff posits the legislature has not granted the Highway
Patrol authority to regulate private wrecker businesses.
stipulates the legislature granted to defendants the statutory
authority to provide public safety within the State of North
Carolina . . . . Plaintiff argues that the statutes contained in
Chapter 20 only pertain to the granting of the authority
specifically necessary for public safety.
The regulations governing the Highway Patrol's Wrecker Rotation
Services List are contained in Title 14A of the North Carolina
Administrative Code. See 14A NCAC 9H .0308 (2004). The
Administrative Code states, In order to perform its traffic safety
functions, the Patrol is required to use wrecker services to tow
disabled, seized, wrecked and abandoned vehicles. 14A NCAC 9H
.0319 (2004). The Administrative Code mandates that the Highway
Patrol's Troop Commander shall arrange for the Telecommunications
Center to maintain a rotation wrecker system within each District
of the Troop. 14A NCAC 9H .0320 (2004). Members of the Highway
Patrol must assure the impartial use of wrecker services included
on the Wrecker Rotation Services List. 14A NCAC 09H .0319.
Whenever possible, members of the Highway Patrol are required to
dispatch the wrecker service requested by the motorist requiring the
wrecker service. Id.
In order to perform its traffic safety functions, the Highway
Patrol utilizes private wrecker services to remove abandoned,
seized, damaged, or disabled vehicles from public roadways. The
Highway Patrol promulgated regulations for private wrecker servicesincluded on its rotation list to meet in order to be called to the
scene and to safely remove vehicles from the public roadways.
In the interest of public safety,
the Highway Patrol has
delegated authority to promulgate regulations setting forth the
requirements a private wrecker service must meet in order to be
included and remain on the Highway Patrol's Wrecker Rotation
Services List. N.C. Gen. Stat. § 20-184
; N.C. Gen. Stat. § 20-188.
The challenged regulations clearly relate to public highway safety.
The trial court did not err in denying plaintiff's motion for
partial summary judgment. This assignment of error is overruled.
V. Summary Judgment in Favor of Defendants: Preemption
Plaintiff asserts the trial court erred in granting summary
judgment in favor of defendants and argues federal law preempts the
Highway Patrol's authority to regulate private wrecker companies.
Plaintiff contends 49 U.S.C. § 14501 preempts the rules
promulgated by the Highway Patrol. The statute, entitled, Federal
authority over intrastate transportation, provides in pertinent
(c) Motor carriers of property.
(1) General rule. Except as provided in
paragraphs (2) and (3), a State, political
subdivision of a State, or political authority
of 2 or more States may not enact or enforce a
law, regulation, or other provision having the
force and effect of law related to a price,
route, or service of any motor carrier (other
than a carrier affiliated with a direct air
carrier covered by section 41713(b)(4) [49
U.S.C. § 41713(b)(4)]) or any motor private
carrier, broker, or freight forwarder with
respect to the transportation 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;
(B) does not apply to the intrastate
transportation of household goods; and
(C) does not apply to the authority of a State
or a political subdivision of a State to enact
or enforce a law, regulation, or other
provision relating to the price of for-hire
motor vehicle transportation by a tow truck, if
such transportation is performed without the
prior consent or authorization of the owner or
operator of the motor vehicle.
49 U.S.C. § 14501
(c) (2005) (emphasis supplied).
To determine whether the Highway Patrol's regulations fall
within the safety regulatory authority exception in 49 U.S.C. §
, we review whether the challenged regulations are
genuinely responsive to safety concerns. See City of Columbus v.
Ours Garage & Wrecker Serv., 536 U.S. 424, 442, 153 L. Ed. 2d 430,
446 (2002) (Local regulation of prices, routes, or services of tow
trucks that is not genuinely responsive to safety concerns garners
no exemption from § 14501(c)(1)'s preemption rule.).
Although North Carolina courts have not addressed this issue,
other jurisdictions have upheld similar regulations under the
safety regulatory authority exception contained in 49 U.S.C. §
. See Cole v. City of Dallas, 314 F.3d 730 (5th Cir.
2002) (regulation barring applicants from receiving a wreckerdriver's permit to tow motor vehicles if they had a criminal history
was held to fall under the safety exception); Ace Auto Body &
Towing, Ltd. v. City of New York, 171 F.3d 765, 766 (2d Cir. 1999)
cert. denied, 528 U.S. 868, 145 L. Ed. 2d 140 (2000) (towing
ordinance requiring, inter alia, licensing, display of information,
record keeping, disclosure of criminal history, and maintaining
local storage and repair facilities fell within the safety
exception); Hott v. City of San Jose, 92 F. Supp.2d 996, 999 (N.D.
Cal. 2000) (regulations requiring tow truck operators to maintain
liability insurance, pass criminal background checks, and to keep
records and display information fell within the safety exception).
Plaintiff failed to cite any authority to invalidate the
regulations, or to show the regulations are not exempt under the
safety regulatory authority exception of 49 U.S.C. § 14501.
Here, the Rotation Wrecker Service Regulations set forth
thirty-two conditions a private wrecker service must meet and comply
with in order to be included and remain on the Wrecker Rotation
Services List. These regulations require the wrecker service to:
(1) maintain legally required lighting and other safety equipment
to protect the public; (2) remove all debris from the highway prior
to leaving the collision scene; (3) maintain a full-time office
within the Rotation Wrecker Zone; (4) consistently respond to calls
in a timely manner; (5) impose reasonable charges for work
performed; and (6) secure all personal property at the scene of a
collision to the extent possible; and (7) preserve personal property
in a towed
vehicle. The regulations also provide for the type and amount of
insurance coverage the wrecker service must
maintain, the type of
equipment the wrecker service is required to
have available, and
prohibits persons with convictions for certain crimes from being
included on the rotation list.
These provisions promote public safety at the scene to which
the wrecker service is summoned and preserves personal property
towed from the scene. These regulations protect the public and are
genuinely responsive to safety concerns.
City of Columbus, 536
U.S. at 442, 153 L. Ed. 2d at 446.
Here, the Highway Patrol's regulations fall within the safety
regulatory authority exception set forth in 49 U.S.C.
, and are not preempted by federal law. The trial
court properly granted summary judgment in favor of defendants.
This assignment of error is overruled. Our review and decision does
not consider or condone laws, rules, or regulations related to
price, route, or service of any motor carrier which is not in the
interest of public safety or within other statutory exemption. Id.
The trial court did not err in denying plaintiff's motion for
partial summary judgment. The General Assembly delegated to the
Department of Crime Control and Public Safety and the Highway Patrol
the authority to promulgate regulations regarding the requirements
a private wrecker service must meet to be included and remain on the
Highway Patrol's Wrecker Rotation Services List in the interest ofpublic safety.
N.C. Gen. Stat. § 20-184
; N.C. Gen. Stat. § 20-188;
14 NCAC 9H .0308; 14A NCAC 9H .0319.
The trial court did not err in granting summary judgment in
favor of defendants. The Highway Patrol's regulations for private
wrecker services to be and remain on the Highway Patrol's Wrecker
Rotation Services List fall within the safety regulatory authority
exception set forth in 49 U.S.C. § 14501(c)(2)(A) and are not
preempted by federal law. The trial court's order is affirmed.
Judges MCCULLOUGH and HUDSON concur.
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