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United States Court of Appeals for the Fifth Circuit
July 22, 1999, Decided
[*688] GARWOOD, Circuit Judge:
Plaintiffs-appellants Cardinal Towing & Auto Repair, Inc. and its owner David Matoke (collectively, Cardinal) sued defendants-appellees--the City of Bedford, Texas, the members of the City Council, the City's Police Chief and B&B Wrecker Services, Inc. (all appellees collectively, the City)--complaining of the City's 1995 towing ordinance and the 1996 award of the City's towing contract thereunder to defendant-appellee B&B Wrecking Services, Inc. (B&B). The suit alleged preemption by 49 U.S.C. § 14501(c) and intentional racial discrimination. The district court granted summary judgement for the City. We affirm.
Facts and Procedural History
The City of Bedford--located outside of Fort Worth--has a population of about 45,000. The Bedford police have the authority to call tow trucks to remove vehicles on public streets that are abandoned or disabled in accidents. These "police [*689] tows" were historically handled using a rotation system. Local towing companies that [**2] applied and met certain requirements were placed on a police list, and a police tow job would go to the company whose turn it was. The towed vehicle would be stored at the tower's lot and the owner would ultimately pay for the service. For a number of reasons, in November 1995 the City decided to abandon this system and instead contract with a single company to perform all of the tows requested by the City police. Accordingly, the City repealed the previous statutory scheme and passed the here-challenged ordinance directing that the City's non-consensual City police tows be handled by the recipient of the contract with the City. As before, the owner of the vehicle would actually pay for the service. The ordinance did not affect non-consensual tows requested by private property owners--property owners remained free to strike agreements with any towing company they wished; nor did it affect situations in which the owner of a disabled car was available and expressed a preference for a particular company at the scene of the accident. 1 The ordinance thus limited itself to purely non-consensual situations in which the Bedford police requested a tow.
[**3] The City drafted contract specifications and solicited bids. The evidence demonstrates that none of the City defendants were aware at the time these specifications were drafted that David Matoke was an African-American (or of the race of the owner(s) of B&B). Applicants were required to comply with a number of requirements, the most significant of which were a guarantee of response time within fifteen minutes and access to a class eight wrecker. Class eight wreckers are large towing vehicles able to remove tractor trailer trucks. Cardinal, B&B and another company submitted bids to the City. Cardinal's bid stated it was "minority owned." Cardinal averred below that it had "made arrangements to acquire" a class eight wrecker and stated in its bid that it would take some time to put the wrecker in service. In the interim, it stated that it would be able to call on a class eight wrecker owned by another company, Beard's Towing. A letter from Beard's was attached, in which access to a wrecker was confirmed. However, the letter reflects that Beard's was only able to guarantee a response time averaging forty-five minutes to an hour. The City Council in February 1996 voted to award the contract [**4] to B&B. The members of the City Council testified that at that time they were unaware of the race of either Matoke or B&B's owner(s). After the award of the contract, Cardinal protested, claiming that it had been discriminated against. In the wake of these allegations, the City decided to rebid the contract. The second set of bid specifications contained some additional requirements, including ownership of a class eight wrecker, maintenance of an office at the company's vehicle storage facility, and computerized record keeping. The specifications were later amended by raising the required insurance level. Cardinal's second bid stated that it was in the process of acquiring a class eight wrecker and suggested usage of Beard's in the interim. Cardinal also claimed that it was in the process of establishing compliance with the computerized records and office at the storage location requirements and both would be completed a month and a half after the bid was submitted.
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180 F.3d 686 *; 1999 U.S. App. LEXIS 16865 **
CARDINAL TOWING & AUTO REPAIR, INC.; DAVID MATOKE, Individually, Plaintiffs-Appellants, versus CITY OF BEDFORD, TEXAS, a Municipal Corporation; RICK HURT, Mayor of City of Bedford in his official and individual capacity; BECKY GREIN, City Council Member in her official and individual capacity; LISA DALY, City Council Member in her official and individual capacity; STEPHEN PEAK, City Council Member in his official and individual capacity; CHARLES OREAN, City Council Member in his official and individual capacity; DANNY MCDOWELL, City Council Member in his official and individual capacity; LEAHMON CHAMBERS, City Council Member in his official and individual capacity; JIM R. SIMPSON, Chief of Police in his official and individual capacity; B&B WRECKER SERVICES, INC., Defendants-Appellees.
Prior History: [**1] Appeal from the United States District Court for the Northern District of Texas. 4:97-CV-112-A. John H. McBryde, US District Judge.
tows, preemption, regulation, proprietary, ordinance, preempted, contracting, wrecker, bid, specifications, municipality, exemption, state action, transportation, owner of the vehicle, summary judgment, towing company, private party, consumer, contract specifications, racial discrimination, force and effect, prima facie case, spending power, tow truck, non-consensual, interaction, minutes, preemption clause, district court
Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, General Overview, Standards of Review, Summary Judgment, Entitlement as Matter of Law, Constitutional Law, Supremacy Clause, Federal Preemption, Public Contracts Law, Types of Contracts, Local Government Contracts, Supreme Law of the Land, Governments, Local Governments, Ordinances & Regulations, Police Power, Business & Corporate Compliance, Transportation Law, Air & Space Transportation, Charters, Transportation Law, Private Vehicles, Towing, Civil Rights Law, Protection of Rights, Section 1983 Actions, Scope