In this case, the Court ruled that Section 12.0 of Ordinance No. 40 of the Town of Hempstead entitled “Operation of Tow Cars” is valid and constitutional.
The plaintiffs are in the tow car business and are licensed tow car operators in the Town of Hempstead in Nassau. The Plaintiff is seeking to declare certain sections of Ordinance No. 40 of the Town of Hempstead entitled ‘Operation of Tow Cars’ unconstitutional and void and to enjoin any action and enforcement thereunder.
The plaintiffs agreed that there is a necessity for regulation of the tow car industry. They contend, however, that section 12.0 is prohibitory, not regulatory, and therefore unconstitutional.
Section 12.0 states:
‘Sec. 12.0 It shall be unlawful for any person to drive along any street or bridge in the Town of Hempstead and solicit towing work. Solicitation of towing work by the Suffolk operator or other occupant of a tow car while parked on any street or bridge is also prohibited. A tow car operator shall not proceed to the scene of a disabled motor vehicle without having been requested or notified to do so by the owner or his authorized representative or the Police. Responding to a call, merely upon notification from gas station attendants, taxicab drivers [13 Misc.2d 1056] or other unauthorized persons shall be considered in violation of this provision.’
The court held that Section 12.0 does not prohibit as did the ordinance in the Grant and Good Humor cases. Whereas the use of public streets was prohibited in those invalid ordinances, under section 12.0 tow cars may still travel the public streets for towing purposes. In fact, they are authorized to tow when ‘requested or notified to do so by the owner or his authorized representative or the police’; and under section 12.1 tow car owners and operators are required to service a disabled car when requested by the owner of the disabled car who is able and willing to pay the required towing fee. What is prohibited is ‘solicitation of towing work’ by the operator or occupant of a tow car while on the public street at the scene of a motorcycle accident, and going to the scene of an accident for the purpose of solicitation at the scene of the car accident. Other solicitations by tow car operators are not prohibited.
The mere fact that tow car operators may from time to time have been of assistance to injured persons by their ability at times to get to the scene of an accident first may warrant them some praise, but that does not permit the conclusion that the ordinance is therefore invalid. Such acts are gratuitous and not obligatory. The primary responsibility in such matters rests on the county, the town and the police.
In short, section 12.0 does not prohibit the use of public streets to tow cars nor does it prohibit all solicitation of towing work. What it does prohibit is unregulated solicitation that interferes with the free choice by the damaged car owner who is in a poor position or condition at that moment to property 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.
Accordingly, so long as there are motor vehicle accidents the number of towing jobs available will keep pace with the number of these accidents. The towing business will not be diminished or interfered with by this ordinance. What is diminished or interfered with by this ordinance is dangerous ‘chasing’ to the scene of an accident, unwarranted ‘avalanche’ solicitation of emotionally upset, confused or dazed operators involved in accidents, and interference with proper investigation and other work by the police at the scene of the accident.
Furthermore, the Court stated that the fact that a better ordinance may have been drafted is also not a sufficient objection. Constitutionality does not require perfection.
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