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September 29, 2005
TO THE PRESIDENT ANDMEMBERS OF THE
COUNCIL OF THE CITY OF PHILADELPHIA:
I am returning herewith as disapproved Bill No. 040698, passed by the Council on September 15, 2005. This bill would require the City to deny a license to any towing company if that towing company is located in a jurisdiction which, as a matter of practice or policy, will not issue towing licenses to Philadelphia-based towing companies. I have disapproved this bill for policy reasons, practical reasons and legal reasons.
As a matter of policy, although I appreciate the sentiment that motivated this bill, namely, that Philadelphia-based businesses should not be denied the right to operate in other jurisdictions merely because they are based in Philadelphia, I cannot agree with the approach taken by this bill to express our displeasure by taking out our displeasure on an innocent business owner.
As a practical matter, it will be the very rare case indeed where our Department of Licenses and Inspections will be able to know with any level of certainty that a towing company, in fact, is located in a jurisdiction that practices the discriminatory policies the bill wants to combat. It is highly unlikely that any jurisdiction openly proclaims that Philadelphians are not welcome; more likely, such insidious discrimination is practiced subtly and quietly.
Finally, I have been advised by the City Solicitor that, as a matter of federal law, it would be unlawful for the City to enforce the license restrictions established by the bill. With limited exceptions not applicable here, federal law preempts local governments from enacting or enforcing any law “related to a price, route or service of any motor carrier…with respect to the transportation of property.” 49 U.S.C. §14501(c)(1). Moreover, case law has made clear that this restriction applies to the regulation of towing companies, and that local governments may not enforce licensing requirements with respect to towing companies, other than licensing requirements related to insurance, safety, and certain pricing regulations. The retaliation provisions of Bill No. 040698 do not relate to one of these three permissible areas, and therefore, I am advised, we are preempted from enacting or enforcing them.
In vetoing this bill, I recognize that there are similar, though not as restrictive, provisions relating to towing licenses enacted in 1995 already are in the City Code. It was enacted when the federal preemption provision was both quite new and not nearly as clear. It is my understanding, however, that these provisions have generally not been enforced, for the same practical and legal reasons set forth in this letter.
Respectfully,
John F. Street
Mayor
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