Can a New York village require every tow truck on its rotational call list, including out-of-village towers, to drop towed cars at a yard inside the village, so residents can pick them up locally?

Plain-English summary

The Village of Wappingers Falls wanted to make it easier for residents to retrieve cars after a police-ordered tow. Its idea: a local law requiring every tow company on the Village's rotational call list to tow vehicles to a yard inside the Village. The Village Attorney asked whether the law would run into General Municipal Law § 80, which voids local laws that impose restrictions on non-resident businesses unless they are "necessary for the proper regulation of [the] trade, business or calling."

The AG concluded that the proposed rule should survive a § 80 challenge on the facts described, while warning that its operation could reveal discrimination against nonresident tow companies.

Municipal authority over towing. Villages can regulate towing under the police power. Richard's Serv. Station, Inc. v. Town of Huntington and prior AG opinions (Op. Att'y Gen. (Inf.) Nos. 97-37 and 81-104) confirm that rotational tow lists are within local authority. Wharram and Dun-Rite implicitly recognize them.

GML § 80's anti-favoritism rule. Section 80 voids any local restriction or regulation on the inhabitants of other municipalities carrying on a business within the regulating corporation that is (a) not necessary for proper regulation and (b) does not apply to citizens of all parts of the state alike. Historically applied to invalidate residency requirements for peddlers (Hervieux, Schrager) and tow operators (Wharram, Village Auto Body Works).

How the cited cases differ.

• Place of business requirement: A towing business requirement of that kind is void under § 80 unless the municipality shows it is necessary for proper regulation. Wharram and Village Auto Body Works.
• Distance rule: Matter of Dun-Rite Towing, Inc. v. Village of Tarrytown upheld a tow-yard rule covering yards within half a mile of village borders because it "neither requires residency nor discriminates against nonresidents." The AG separately cites Sperling and Price, which involved store or warehouse exemptions for vendors regardless of residence.

Why the AG did not find a facial § 80 violation. The proposed rule applied to every rotational tower regardless of where the tower was based. Out-of-village towers did not have to relocate; they could drop the car at an in-village yard, which the AG noted could be owned, leased, or arranged with the municipality. The AG concluded that there was no residency requirement on the face of the proposal.

The subterfuge risk the AG flagged. The AG warned that if local tow companies in practice use only yards they own or maintain, a court could treat the proposal as a disguised place-of-business requirement. Wharram puts the burden on the municipality to justify any exclusion of non-residents from a rotational list.

The Dun-Rite alternative the AG identified. The AG pointed to Matter of Dun-Rite Towing, Inc. v. Village of Tarrytown, which upheld a half-mile-radius tow-yard rule, and cited Op. Att'y Gen. (Inf.) No. 90-66 for the principle that "a requirement of location in the city would be unreasonable" if out-of-city towers can offer the same response time and redemption convenience. The AG did not say the Village had to use that formula.

Federal preemption. The opinion flagged but did not resolve federal preemption. It cited these cases:

• City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (2002).
• Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136 (2d Cir. 2006).
• Auto. Club of N.Y. v. Dykstra, 520 F.3d 210 (2d Cir. 2008).

The AG did not decide whether the proposal would withstand a preemption challenge.

Currency note

This opinion was issued in 2008. 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

Why can't a village simply require resident towing companies on its rotational list? A residency requirement is the kind of discrimination § 80 addresses. The AG says a requirement to maintain a local place of business is likewise void without a showing of necessity, citing Wharram and Village Auto Body Works. It contrasts the distance-based tow-yard rule upheld in Dun-Rite.

What is a "rotational tow list"?
The opinion describes it as a list under which municipal police call particular tow companies on a rotating basis when vehicles need towing.

Can the village limit out-of-village towers to a portion of the list (e.g., one of every five rotations)? The opinion does not address a quota. It says § 80 applies to a local rule treating residents and nonresidents differently; such a rule is void unless shown necessary for proper regulation of the business.

What if the in-village yard option is, say, a municipal impound lot? The AG expressly names a municipal storage yard as one way an operator could comply. It also mentions company-owned lots, leased space, and space used through an arrangement with the lot owner.

How does federal preemption interact with § 80? The opinion resolves the § 80 question on the facts presented but notes that federal law can preempt some local towing laws. It says certain types of local towing laws must be genuinely responsive to safety concerns to avoid federal preemption; it does not decide whether this proposal satisfies that condition.

Background and statutory framework

Local towing authority. The AG says the village generally has authority to regulate towing and that a municipal rotational list falls within police power. It analyzes a limit under § 80 and flags federal preemption.

General Municipal Law § 80. Voids local restrictions on non-resident inhabitants doing lawful business within the regulating corporation unless (a) necessary for proper regulation and (b) applied alike to citizens of all parts of the state. The opinion discusses earlier peddler cases and more recent towing cases.

Federal preemption. The AG says federal law raises preemption questions for some local towing laws and that certain types must be genuinely responsive to safety concerns. It cites Ours Garage, Loyal Tire, and Dykstra without resolving that question here.

Citations

• General Municipal Law § 80.
• Richard's Serv. Station, Inc. v. Town of Huntington, 79 Misc. 2d 834, 837 (Sup. Ct. Suffolk County 1974), modified 47 A.D.2d 963 (2d Dep't 1975) (municipal towing regulatory authority).
• Wharram v. City of Utica, 56 N.Y.2d 733 (1982) (residency-based exclusion from rotational list violates § 80 absent necessity showing).
• Village Auto Body Works, Inc. v. Town of Hempstead, 89 A.D.2d 612 (2d Dep't 1982).
• Matter of Dun-Rite Towing, Inc. v. Village of Tarrytown, 215 A.D.2d 654, 655 (2d Dep't 1995) (half-mile radius tow-yard rule survives § 80).
• Sperling v. Valentine, 176 Misc. 826 (Sup. Ct. N.Y. County 1941) (warehouse-based exemption for both resident and non-resident vendors).
• Price v. Horton, 170 Misc. 899, 901 (Sup. Ct. Suffolk County 1939).
• People v. Hervieux, 134 Misc. 711 (County Ct. Washington County 1929) (peddler residency requirement void).
• Schrager v. City of Albany, 197 Misc. 903 (Sup. Ct. Rensselaer County 1950).
• City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (2002) (cited on federal preemption).
• Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136, 145 (2d Cir. 2006).
• Auto. Club of N.Y. v. Dykstra, 520 F.3d 210 (2d Cir. 2008).
• Op. Att'y Gen. (Inf.) No. 97-37; Op. Att'y Gen. (Inf.) No. 81-104 (rotational tow list within police power).
• Op. Att'y Gen. (Inf.) No. 90-66 (location-within-city requirement unreasonable if out-of-city towers offer comparable response and redemption).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-9_pw.pdf

Original opinion text

General Municipal Law § 80

A local law that would require tow truck operators included on a municipal rotational list to tow vehicles to a tow yard within the regulating municipality’s boundaries would not violate General Municipal Law § 80.

September 18, 2008

Louis J. Viglotti
Informal Opinion
Village Attorney
No. 2008-9
Village of Wappingers Falls
1136 Route 9
Wappingers Falls, NY 12590

Dear Mr. Viglotti:

You have requested an opinion regarding whether the Village is authorized to enact a local law that would require tow truck operators included on the Village’s rotational tow list to tow vehicles to a tow yard within the Village’s boundaries. You have indicated that the justification for such a requirement is to make it easier for village residents to retrieve their towed vehicles. You have confirmed that the language of the local law would not distinguish between tow companies located within the Village and those located outside the Village; that is, all tow companies included on the Village’s rotational list, wherever located, would be required to tow vehicles to a storage lot within the Village. As explained more fully below, we are of the opinion that such a local law would not violate General Municipal Law § 80.

I. Background

The Village generally has authority under state law to regulate the towing business. Richard’s Serv. Station, Inc. v. Town of Huntington, 79 Misc. 2d 834, 837 (Sup. Ct. Suffolk County 1974); modified by 47 A.D.2d 963 (2d Dep’t 1975). We have previously opined that establishing a rotational tow list, whereby the municipal police call particular tow companies on a rotating basis when vehicles need to be towed, falls within a municipality’s police power. See Op. Att’y Gen. (Inf.) No. 97- 37; Op. Att’y Gen. (Inf.) No. 81-104. Moreover, such lists have been implicitly recognized by courts. See Wharram v. City of Utica, 56 N.Y.2d 733 (1982); Matter of Dun-Rite Towing, Inc. v. Village of Tarrytown, 215 A.D.2d 654 (2d Dep’t 1995). 2

General Municipal Law § 80 establishes a limitation on the exercise of this power. Section 80 provides that

[a]ny 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, except ordinances or regulations in reference to traveling circuses, shows and exhibitions, shall be void.

General Municipal Law § 80. Section 80 thus applies only to a local ordinance or regulation that treats the inhabitants of the regulating corporation differently from the inhabitants of other places; such a provision is void unless it is shown to be necessary for the proper regulation of the relevant business.

II. Analysis

Historically, General Municipal Law § 80 was applied to invalidate local laws regulating peddlers. Thus, section 80 invalidated ordinances or local laws that established residency requirements for peddlers. See, e.g., People v. Hervieux, 134 Misc. 711 (County Ct. Washington County 1929); Schrager v. City of Albany, 197 Misc. 903 (Sup. Ct. Rensselaer County 1950). In contrast, section 80 did not invalidate ordinances or local laws that gave favorable treatment to vendors, regardless of residence, who maintained a store or warehouse within the city. Sperling v. Valentine, 176 Misc. 826 (Sup. Ct. N.Y. County 1941) (exempting such vendors from licensing requirement otherwise applicable to itinerant vendors of foodstuffs). The critical distinction was between laws that made distinctions based on residence, and laws that made other distinctions. The Sperling court observed that under the law in question, “a non-resident with a warehouse in the city would be exempt while a resident with no place of business for the handling of foodstuffs is subject to the license.” Id. Accord, Price v. Horton, 170 Misc. 899, 901 (Sup. Ct. Suffolk County 1939) (upholding local law that exempted from the licensing requirement for peddlers those who had “a regularly established store or warehouse” within the town). 3

Many of the more recent cases applying section 80 involve local restrictions on towing, and purport to apply to towing businesses the same principles earlier applied to peddlers.1 Thus, a local law that requires a towing business to maintain a place of business within the municipality, like a residency requirement, is void under section 80 unless it is supported by evidence that it is necessary for the proper regulation of the towing business. See Wharram, 56 N.Y.2d at 735; Village Auto Body Works, Inc. v. Town of Hempstead, 89 A.D.2d 612 (2d Dep’t 1982). In contrast, a local licensing policy that required tow companies, no matter where located, to maintain a tow yard within a half-mile of the licensing village’s borders “neither requires residency nor discriminates against nonresidents of the Village.” Matter of Dun-Rite Towing, Inc. v. Village of Tarrytown, 215 A.D.2d 654, 655 (2d Dep’t 1995).

While not free from doubt, in our opinion the regulation proposed by the Village should survive a challenge based on section 80, because it neither requires residency within the Village nor discriminates against nonresidents of the Village, and therefore need not be justified as “necessary” under section

80. You have advised that the plain language of the local law
    would not distinguish between tow companies based on the location of their place of business. As you have described it, the proposed local law would not require tow companies to own or maintain a storage yard within the Village – requirements perhaps more akin to requiring a place of business within the Village – but simply to tow to a storage yard within the Village. Thus, a tow company, whether located within the Village or outside the Village, would be eligible for the Village’s rotational list if it was authorized to tow cars to a lot within the Village, whether it was a lot owned by the company, space leased by the company, space used by the company pursuant to an arrangement with the owner of the lot, or even a municipal storage yard. Such a provision, in our opinion, applies to citizens of all parts of the State alike, making no distinction between resident tow companies and nonresident tow companies.

    We caution, however, that a local law such as you have
    proposed could possibly be viewed as a subterfuge to prevent nonresident tow companies from inclusion on the Village’s

    1
    While section 80 affords protection only to the
    “inhabitants” of municipal corporations other than the regulating corporation, the courts have uniformly treated a towing business located outside the regulating municipal corporation as such an “inhabitant” for these purposes. See, e.g., Wharram v. City of Utica, 56 N.Y.2d 733. 4

rotational tow list, in violation of General Municipal Law § 80. See Wharram, 56 N.Y.2d 733, 735 (nonresident tow companies having been excluded from rotational list, municipality had the burden of establishing that such exclusion was necessary). If, in practice, local tow companies tow only to yards owned or maintained by them, a court may find that the Village’s licensing requirement is akin to requiring a place of business within the Village, and the Village will be required to demonstrate that the requirement is necessary for the proper regulation of the towing business within the Village.

The approach most likely to withstand challenge would be a licensing provision analogous to the one upheld in Dun-Rite, requiring tow companies on the rotational list to use tow yards not necessarily within the Village, but rather within a certain distance of the Village’s boundaries. Such a provision would have the benefit of the Dun-Rite precedent and would better serve the stated purpose of the proposed law, namely convenience of redemption. We can foresee instances where a tow yard located a short distance from the Village would allow more convenient redemption of a vehicle than would a tow yard located across the Village. See Op. Att’y Gen. (Inf.) No. 90-66 (“[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.”).

Finally, you should be aware that federal law raises issues of federal preemption in certain circumstances; certain types of local laws regulating towing must be genuinely responsive to safety concerns to avoid preemption. See City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (2002); Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136, 145 (2nd Cir. 2006); and Auto. Club of N.Y. v. Dykstra, 520 F.3d 210 (2nd Cir. 2008).

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.
Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions