Can a New York town license tow truck operators, set up a rotational call list for accident scenes, and ban tow operators from cruising for tows?

Plain-English summary

The Town of Montgomery was considering a local law to license tow truck operators, create a town-maintained rotational "tow-of-the-day" list for accident scenes, and prohibit unauthorized operators from cruising for towing business. The town was responding to traffic chaos at accident scenes (multiple operators converging, slowing investigation, creating safety risks) and wanted to put structure around the dispatch process.

The AG approved the basic plan. Three statutory sources combine to provide authority.

First, the local police power. Under Municipal Home Rule Law § 10(1)(ii)(a)(12), local governments can enact local laws to protect the health, safety, and well-being of persons and property and to license or regulate occupations or businesses. Tow truck operations at accident scenes are within that grant.

Second, the town-specific authority. Town Law § 136 lets a town board enact an ordinance to license and regulate vehicles for hire and the solicitation of business on public highways or private property.

Third, the precedent. New York courts have repeatedly upheld municipal towing schemes that include licensing, rotational lists, and bans on cruising. The Court of Appeals in Wharram v City of Utica, 56 NY2d 733 (1982), implicitly recognized the authority for the rotational list but struck down the specific exclusion of nonresident operators. Lower courts in Richard's Service Station and Hempstead T-W Corp. upheld cruising bans. People v Francis affirmed the conviction of a tow operator who refused to leave an accident scene where he was not authorized to be.

The major caveat is General Municipal Law § 80. It voids any local regulation that restricts nonresidents from doing business in the municipality unless the restriction is necessary for proper regulation of the trade. Wharram applied that rule to invalidate a residency requirement on the rotational list. A prior AG opinion (Op Atty Gen (Inf) No. 90-66) reached the same conclusion: requiring all towing businesses to maintain a place of business inside the city failed § 80. A municipality can prefer operators who can meet response-time requirements, but cannot back-door that into a residency requirement.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the source of a town's authority to license tow trucks?

Three layers. The local police power for licensing occupations under Municipal Home Rule Law § 10(1)(ii)(a)(12); the specific Town Law § 136 power to regulate vehicles for hire and solicitation on town streets; and judicial recognition of those grants as covering tow truck regulation (Wharram, Richard's Service Station, Hempstead T-W).

What is a rotational towing list?

A municipality maintains a list of licensed tow operators and calls them in sequence when the police need a tow for a disabled, abandoned, or scofflaw vehicle (and when the vehicle owner has not selected a particular operator). The system replaces a free-for-all at accident scenes with predictable dispatch.

Can the list exclude operators based outside town limits?

Not on residency alone. Under General Municipal Law § 80, a local restriction on nonresidents doing business in the municipality is void unless the restriction is necessary for proper regulation of the trade. Wharram struck down a Utica ordinance for that reason. The municipality can require quick response times and reasonable redemption convenience, but cannot dress up those rules as a residency requirement that excludes outside operators who can meet the substantive standards.

Can the law ban cruising for tows?

Yes. Hempstead T-W Corp. upheld a ban on cruising and on uninvited solicitation at accident scenes. Richard's Service Station upheld a similar provision. The justifications, traffic safety, accurate police investigation, and consumer protection from high-pressure tactics, all fall within municipal police power.

What about an unauthorized operator who shows up uninvited?

People v Francis upheld the conviction of a tow operator who refused a police order to leave an accident scene where he was not authorized to be. The town's law can give the police explicit authority to direct unauthorized operators away.

Can a tow operator be licensed if it has a record of consumer complaints or unsafe practices?

The opinion does not detail license criteria. It cites Hempstead T-W Corp. for the proposition that the town can limit licenses to "responsible" operators, which the courts have treated as a permissible exercise of police power. Specific criteria should be tied to substantive concerns (safety, financial responsibility, equipment standards), not residency.

Background and statutory framework

The General Municipal Law § 80 framework is central. It reads in part: "Any restriction or regulation imposed by the governing board of a municipal corporation upon the inhabitants of any other municipal corporation within this state, carrying on or desiring to carry on any lawful business or calling within the limits thereof, which shall not be necessary for the proper regulation of such trade, business or calling, and shall not apply to citizens of all parts of the state alike . . . shall be void."

Wharram applied that text to invalidate Utica's residency requirement on its rotational tow list. The Court of Appeals put the burden on the municipality to come forward with evidence establishing necessity; on the record there, no such evidence appeared. The trial court's necessity conclusion failed.

Op Atty Gen (Inf) No. 90-66 followed Wharram. A municipality may run a rotational towing service list and may require tow operators to be conveniently located (for response time and vehicle redemption), but a residency requirement is not the right way to achieve that. A nonresident operator who can offer the desired response time and redemption convenience cannot be excluded.

Citations

• General Municipal Law § 80 (voids local restrictions on nonresident businesses unless necessary for proper regulation).
• Municipal Home Rule Law § 10(1)(ii)(a)(12) (local police power; licensing of occupations and businesses).
• Town Law § 136 (town authority to license vehicles for hire and regulate solicitation on streets).
• Wharram v City of Utica, 56 NY2d 733 (1982) (implicit approval of rotational list; struck down residency requirement under § 80).
• Richard's Service Station, Inc. v Town of Huntington, 79 Misc 2d 834 (Sup Ct Suffolk Co 1974), mod, 47 AD2d 963 (2d Dept 1975) (upheld cruising prohibition).
• Hempstead T-W Corp. v Town of Hempstead, 13 Misc 2d 1054 (Sup Ct Nassau Co 1958), affd, 7 AD2d 637 (2d Dept 1958) (upheld licensing and ban on uninvited accident-scene solicitation).
• People v Francis, 53 Misc 2d 6061 (Dist Ct Nassau Co 1967) (upheld conviction for refusing police order to leave accident scene).
• Op Atty Gen (Inf) No. 90-66 (residency requirement for towing license fails § 80).
• 1981 Op Atty Gen (Inf) 104 (rotational towing service list authorized).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-37_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

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Opn. No. 97-37
GENERAL MUNICIPAL LAW § 80; MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(12); TOWN
LAW § 136.
A municipality may utilize its police power to license tow truck operators, establish a rotational list,
summon operators to the scenes of accidents and prohibit cruising for towing work.
August 6, 1997
Informal Opinion
Richard W. Hoyt, Esq.
Town Attorney
Town of Montgomery
P.O. Box 402
Walden, New York 12586
Dear Mr. Hoyt:
You have requested an opinion as to whether the town may adopt local legislation to license tow truck
operators and establish a rotational "tow-of-the-day" list for use by police requesting tow truck operator
assistance for removal of disabled motor vehicles at accident scenes. The town does not have a local law
governing tow truck operators and currently uses a rotating "tow-of-the-day" list maintained by the New
York State Police.
The town is contemplating the enactment of a local law to license tow truck operators and establish a
rotational towing service list for response to motor vehicle accident scenes. Presumably, the list would
be used when the driver of a disabled vehicle is unable or does not desire to request the services of a
particular towing company. The law would enable the town to determine through a background check
whether a tow truck operator should be issued a license. Also, only tow truck operators called for
assistance from the rotational list would be authorized to perform towing and it would be unlawful for
unauthorized tow truck operators to solicit business by "cruising for a tow" at accident scenes.
The basis for the law is the finding that the presence of numerous tow truck operators causes
unnecessary traffic congestion and chaos at accident scenes. The town is also concerned with safety,
orderly removal of disabled vehicles and proper police accident investigation.
In our view, the enactment of the proposed local law falls within the so-called "police power" of the
town which enables it to enact local laws to protect the health, safety and well-being of persons and
property. Municipal Home Rule Law § 10(1)(ii)(a)(12). Also, under section 136 of the Town Law, a
town board may enact an ordinance to license and regulate "vehicles for the transportation of persons or
property over or upon the streets of a town for hire, and soliciting either on private property or on the
public highway". Further, local governments are authorized to "adopt local laws providing for the
regulation or licensing of occupations or businesses . . .". Municipal Home Rule Law § 10(1)(ii)(a)(12).
Local legislation licensing and regulating towing, including the establishment of a rotating list, has been
upheld. Wharram v City of Utica, 56 NY2d 733 (1982); Richard's Service Station, Inc. v Town of
Huntington, 79 Misc 2d 834 (Sup Ct Suffolk Co 1974), mod, 47 AD2d 963 (2d Dept 1975); Hempstead
T-W Corp. v Town of Hempstead, 13 Misc 2d 1054 (Sup Ct Nassau Co 1958), affd, 7 AD2d 637 (2d

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OPINIONS OF THE ATTORNEY GENERAL

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Dept 1958); People v Francis, 53 Misc 2d 6061 (Dist Ct Nassau Co 1967); see also, Op Atty Gen (Inf)
No. 90-66, 1981 Op Atty Gen (Inf) 104.
The Court of Appeals in Wharram, supra, held that a rotational towing service list, established in
accordance with the City of Utica's towing ordinance and used by the police department to call tow truck
operators to the scene of accidents, could not unnecessarily omit nonresident tow truck operators from
inclusion on the rotational list. The Court determined that the exclusion of nonresident tow truck
operators from the rotational list violated General Municipal Law § 80, which in part provides:
Any restriction or regulation imposed by the governing board of a municipal corporation
upon the inhabitants of any other municipal corporation within this state, carrying on or
desiring to carry on any lawful business or calling within the limits thereof, which shall not
be necessary for the proper regulation of such trade, business or calling, and shall not apply
to citizens of all parts of the state alike . . . shall be void.
The Court found that the city failed to show that an ordinance excluding nonresident tow truck operators
from a rotational towing service list, used by police to call tow truck operators to motor vehicle accident
scenes, was necessary to regulate police business. The Court held that requiring a tow truck operator to
maintain a place of business within the city, in order to be placed on the rotational tow truck list,
violated General Municipal Law § 80:
The issue under section 80 is not whether there is a reasonable ground for such a restriction
of nonresident tow truck operators but whether such a restriction is necessary. It was the
burden of the municipality, which conceded that nonresidents were excluded from the
rotational list, to go forward with evidence establishing necessity. However, the record
contains no evidence to sustain Trial Term's conclusion of law that the restriction against
nonresidents was necessary for the proper regulation of police business. Wharram, supra, at
735.
Thus, the Court implicitly recognized the authority for the list but found that it was under-inclusive.
In Op Atty Gen (Inf) No. 90-66, a city had enacted a towing ordinance to establish a rotational towing
service list for police-initiated towing of abandoned and scofflaw vehicles. The city then sought to
expand the ordinance to regulate towing businesses through licensing, limiting rates and requiring that a
tow truck operator maintain a place of business within the city. While finding authority for the
regulations, we concluded that the requirement that all towing businesses maintain a place of business
within the city in order to obtain a license violated General Municipal Law § 80.
A requirement that tow truck operators be conveniently located might be justifiable for
police initiated towing where response time and convenient redemption of vehicles are valid
considerations. Even under these circumstances, however, a requirement of location in the
city would be unreasonable, in our view, where tow truck operators outside city limits can
offer the desired response time and redemption convenience.
Op Atty Gen (Inf) No. 90-66.
We have concluded that a town could establish a rotational towing service list of qualified tow truck
operators to tow disabled, abandoned and illegally parked vehicles. 1981 Op Atty Gen (Inf) 104.
In Richard's Service Station, Inc. v Town of Huntington, supra, the Appellate Division upheld a

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provision of the town's tow truck law prohibiting driving on any street or highway, outside of village
limits, for the purpose of soliciting towing business. The court determined that the provision was within
the town's ordinance-making powers.
Similarly, in Hempstead T-W Corp. v Town of Hempstead, supra, the lower court upheld the town's
towing ordinance, which prohibited solicitation of towing work and required that the owner of the
disabled vehicle, his authorized representative or the police request the presence of a towing company.
The court commented:
What it does prohibit is unregulated solicitation that interferes with free choice by the
damaged car owner who is in a poor position or condition at that moment to properly
protect himself, the racing to the scene of an accident by tow car operators to first solicit
and garner the towing contract with the resultant interference with the rights of other
motorists and traffic in general, and the interference with the proper police investigation and
other necessary police work at the scene of the accident. Hempstead T-W Corp., supra, at
1059.
The court also upheld the town's licensing provisions permitting only responsible tow truck operators to
hold a license.
Further, in People v Francis, supra, a tow truck operator was convicted of violating a local ordinance
prohibiting solicitation of business at an accident scene. An unauthorized tow truck operator had
appeared at the scene of an accident. When the police directed the tow truck operator to leave, he
refused. The court determined that the tow truck operator refused to leave the scene in order to solicit
the tow.
We therefore conclude that the town may enact a local law to license tow truck operators and establish a
rotational towing service list to be used by police to request tow truck operators' assistance at motor
vehicle accident scenes. The town, however, must comply with section 80 of the General Municipal
Law. We also conclude that such legislation may prohibit "cruising for a tow" by unauthorized tow truck
operators attempting to solicit business.
The Attorney General renders formal opinions only to officers and departments of the State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JULIA RYAN CHRIST
Assistant Attorney General

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