Berry v. Hannigan

Opinion

STRANKMAN, P. J.

Appellant Robin Berry, individually and doing business as Berry Brothers Towing, contends that California statutes requiring

[589]

operators of towing and storage facilities to accept credit cards as payment from the owners of vehicles whose vehicles have been involuntarily towed are unconstitutional under the legal tender, equal protection, and due process clauses of the United States Constitution. Berry’s declaratory relief action was submitted for decision by the trial court on the briefs and declarations of the parties, and judgment was entered in favor of respondent. We affirm the judgment.

Discussion

Peace officers and parking enforcement personnel may remove vehicles under certain circumstances, such as illegal parking or obstruction of traffic. (Veh. Code, § 22651.)

1

Respondent, the Commissioner of the California Highway Patrol (CHP), is authorized to enter into agreements with towing and storage facilities for the removal of offending vehicles. (§ 2424.) Appellant Berry is one of the towing and storage operators who has such an agreement with CHP and is called upon to provide services in removing vehicles. In addition to the towing of vehicles ordered by peace officers or parking enforcement personnel under section 22651, section 22658 permits the removal of vehicles from private property at the direction of the property owner under specified circumstances. Berry’s complaint is that sections 22651.1 and 22658, subdivision (k), require towing and storage operators who have removed vehicles at the behest of public agents (§ 22651) or private property owners (§ 22658) to accept “a valid bank credit card or cash for payment of towing and storage” by the vehicle owner.

Apparently, Berry wishes to operate a cash-only business because irate vehicle owners can stop payment to him by disputing the charge for his services to their credit card issuer. He claims that sections 22651.1 and 22658, subdivision (k), are unconstitutional under the legal tender, equal protection, and due process clauses of the United States Constitution. Article I, section 10, provides that no state shall “make any Thing but gold and silver Coin a Tender in Payment of Debts . . . .” Berry also notes that federal law, which preempts state law, provides that “United States coins and currency ... are legal tender for all debts, public charges, taxes, and dues.” (31 U.S.C. § 5103.) The disputed Vehicle Code sections are said impermissibly to establish credit cards as “legal tender” for payment of towing debts. Berry also claims that he is denied equal protection of the laws because “[t]he classification of towing companies as the only class of private citizens required to accept credit cards for their service and suffer the burdensome exposure of providing a valuable service without the surety of payment is not rational.” Finally, Berry maintains that he is deprived of property without