HomeMy WebLinkAbout12- City Attorney CITE' OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Dennis A. Barlow, Subject: Adoption of Findings of Fact and
Sr. Assistant City Attorney Statement of Decision(Mario Gomez
Dept: City Attorney m and Leo Wenzel [Doing Business as
Date: May 10, 1996 C-1,- 1 NAL Loma Linda Towing])
Synopsis of Previous Council Action: foil
Appealed denied on May 6, 1996.
Recommended Motion:
Adopt Findings of Fact and Statement of Decision.
Signature
Contact Person: Dennis A. Barlow Phone: 5255
Supporting Data Attached: Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct No.)
(Acct. Description)
Finance:
Council Notes:
176
Agenda Item No. _ _
SDE\dm\aL.tform
STAFF REPORT
Following the quasi-judicial decision of the Mayor and Council in the matter of Loma
Linda Towing at the meeting of the Mayor and Common Council on Monday, May 6, the law
requires that findings be adopted. Based on the action of the Council and on the evidence
presented to the Council and contained within the record we have prepared draft findings for
adoption. These are based in large degree on the findings adopted by the Police Commission.
It is recommended that these findings be adopted.
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ORIGIML
1
BEFORE THE MAYOR AND COMMON COUNCIL
2 OF THE CITY OF SAN BERNARDINO
3
In the Matter of the Hearing of ) FINDINGS OF FACT
4 ) AND STATEMENT OF
MARIO GOMEZ AND LEO WENZEL ) DECISION; NOTICE
5 (Doing Business as Loma Linda Towing) ) OF TIME LIMITS FOR
FILING PETITION FOR
6 ) WRIT OF MANDATE
7 The above-captioned matter concerning the termination of the agreement with LOMA
8 LINDA TOWING to provide towing services to the City of San Bernardino came on for hearing
9 on May 6, 1996, before the Mayor and Common Council of the City of San Bernardino, in the
10 Council Chambers of the City at 300 North "D" Street, San Bernardino, California 92418.
11 LEO WENZEL representing Loma Linda Towing was present and was represented by
12 Attorney AMY GREYSON throughout the hearing. The City was represented by Senior
13 Assistant City Attorney, HUSTON T. CARLYLE, Jr. A quorum of the Council was present
14 throughout the hearing. The Mayor and Common Council heard the testimony, examined the
15 proofs offered by the parties, and reviewed the record. The Mayor and Council being fully
16 advised, makes its Findings of Fact and Statement of Decision as follows:
17 FINDINGS OF FACT
18 1. On July 10, 1995, the Mayor and Common Council of the City of San
19 Bernardino adopted Resolution No. 95-241 establishing standard criteria for tow companies to
20 provide tow services for the City of San Bernardino.
21 2. On July 27, 1995, pursuant to Resolution No. 95-241, the City entered into an
22 Agreement for Tow Services with Loma Linda Towing.
23 3. Among other things said agreement provided that Loma Linda Towing (a) have
24 a minimum storage space for 200 vehicles with a minimum of twelve inside spaces, (b) store
25 towed vehicles in safe and protected space where the vehicles and their contents will not be
26 accessible to thieves and vandals, (c) have adequate equipment to handle calls from the City, (d)
27 collect all towing or hauling and storage charges from the owner and not from the City, (e)
28 comply with all rules, regulations and laws of the state, county and City, and (f) provide notice
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I to the owner of the imposition of charges for towing, storage and related services.
2 4. The agreement provides that the City may terminate the agreement upon thirty
3 days written notice to Loma Linda, which notice shall provide Loma Linda with the right to a
4 pretermination hearing before the Police Commission.
5 5. At its place of business Loma Linda has a maximum storage space for
6 approximately 100 vehicles, with a maximum inside storage space for 4 vehicles.
7 6. On or about December 11, 1995, four tires and customized chrome spoked rims
8 of a 1982 Oldsmobile were stolen while said vehicle was in storage and under the control of
9 Loma Linda Towing.
10 7. When the owner of the vehicle inquired about the rims she was informed that
11 they were removed for safe keeping.
12 8. When the owner of the vehicle attempted to retrieve her vehicle, Loma Linda
13 attempted to provide her replacement rims and tires from another vehicle without so informing
14 her.
15 9. When called to provide tows Loma Linda has indicated that they will respond
16 within 20 minutes.
17 10. A timely response is important to clear the street of vehicles which may be
18 obstructing traffic, and to relieve the police officers who must remain on the scene until the
19 towed vehicle is removed.
20 10. On January 31, 1996, at the 700 block of San Anselmo, it took Loma Linda 47
21 minutes to respond.
22 11. On February 3, 1996, at Kendall and Little Mountain it took Loma Linda 30
23 minutes to respond.
24 12. On February 27, 1996, at the 2500 block of Valencia it took Loma Linda 35
25 minutes to respond.
26 13. On or about March 7, 1996, Loma Linda did attempt to charge the owner of a
27 stored vehicle under its control $40 for the owner to get personal items out of said vehicle, and
28 only declined to impose such charge at the insistence of a police officer.
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1 14. On or about February 15, 1996, Loma Linda sent two trucks to Highland and
2 Del Rosa in response to a call for a tractor-trailer tow which was leaking diesel fuel, when it
3 knew that it was not capable nor competent to handle such a situation.
4 15. After one hour on the scene and unable to handle the tow and remove the vehicle
5 from the rush hour traffic, Loma Linda took it upon itself to call another tow company.
6 16. An appeal of this matter was heard on April 8, 1996 at 6:30 p.m., before the
7 Police Commission of the City of San Bernardino, after which hearing the Police Commission
8 unanimously upheld the termination of Loma Linda.
9 CONCLUSION
10 The termination of the tow service of the Appellant by the City is sustained and upheld
11 in that Appellant failed to comply with the terms of Resolution No. 95-241 and of the July 27,
12 1996, Agreement.
13 STATEMENT OF DECISION
14 The Mayor and Common Council of the City of San Bernardino does hereby order as
15 follows:
16 The Appeal of Mario Gomez and Leo Wenzel (doing business as Loma Linda Towing)
17 from the notice of termination of their towing agreement with the City is hereby denied.
18
19 Dated:
20 APPROVED:
21
22
Tom Minor, Mayor
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YY®YYYrYi/YIII ___ - -. - YiiYYYYI
1 NOTICE OF RIGHT TO APPEAL
2 PLEASE TAKE NOTICE that the time within which judicial review of the decision in
3 this matter must be sought is governed by the provisions of Section 1094.6 of the California
4 Code of Civil Procedure, which provides, in part, as follows:
5 "(a) Judicial review of any decision of a local agency, other
6 than school district, as the term local agency is defined in Section 54951
7 of the Government Code, or of any commission, board, officer or agent
8 thereof, may be had pursuant to Section 1094.5 of this Code only if the
9 petition for Writ of Mandate pursuant to such Section is filed within the
10 time limits specified in this Section.
11 "(b) Any such petition shall be filed not later than the 90th day
12 following the date on which the decision becomes final . . .
13 "(c) The complete record of the proceedings shall be prepared
14 by the local agency or its commission, board, officer or agent which
15 made the decision and shall be delivered to the petitioner within 90 days
16 after he has filed a written request therefore. The local agency may
17 recover from the petitioner its actual costs for transcribing or otherwise
18 preparing the record. Such record shall include the transcript of the
19 proceedings, all pleadings, all notices and orders, any proposed decision
20 by a hearing officer, the final decision, all admitted exhibits, all rejected
21 exhibits in the possession of the local agency or its commission, board,
22 officer or agent, all written evidence, and any other papers in the case.
23 "(d) If the petitioner files a request for the record as specified
24 in subdivision (c) within 10 days after the date of the decision becomes
25 final as provided in subdivision (b), the time within which a petition
26 pursuant to Section 1094.5 may be filed shall be extended to not later
27 than the 30th day following the date on which the record is either
28 personally delivered or mailed to the petitioner or his attorney of record,
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1 if he has one."
2 PLEASE ALSO TAKE NOTICE that Section 1.26.030 of the San Bernardino Municipal
3 Code provides as follows:
4 "1.26.030 Preparation and Payment for Record and Reporter's
5 Transcript.
6 "Upon the filing of a written request for the record of the
7 proceedings or any portion thereof, an amount estimated to cover the
8 actual cost of preparing the record shall be deposited in advance with the
9 City official preparing the record. The record prepared by the City
10 official shall include the transcript of the proceedings, other than a
11 reporter's transcript; all pleadings, notices, orders, final decision,
12 exhibits admitted or rejected, all written evidence, and any other papers
13 in the case. When a hearing has been reported by a court reporter and
14 the petitioner desires a reporter's transcript, the petitioner shall arrange
15 directly with the court reporter for the transcript, pay the reporter
16 directly, and lodge the transcript with the court, serving notice of the
17 lodging to the City Attorney."
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Al .
• RING 8c GREEN
ATTORNEYS AT LAW
1900 AVENUE OF THE STARS, SUITE 2300 d ^
LOS ANGELES, CALIFORNIA 90067
i..
ROBERT A. RING TELEPHONE (310) 201-0777 FAX (310) 556-1346
SUSAN H. GREEN
May 20, 1996
LOM3-1
VIA HAND DELIVERY
Mayor and Common Council
City of San Bernardino t^ 0"1 A �
300 North "D" Street
San Bernardino, California 92418-0001
Re: Loma Linda Towing
Dear Honorable Mayor and Common Council:
I represent Loma Linda Towing regarding its current status with the City of San
Bernardino. I thank you for your interest in making sure Loma Linda Towing is provided fair
treatment.
In short, I request that (1) the Common Council continue agenda item no. 12
regarding the proposed approval of the findings of fact and statement of decision of the Police
Commission for a period of thirty days and furthermore that (2) the Common Council reinstate
Loma Linda Towing on its customary rotation to afford all parties one final opportunity to
amicably, reasonably, and justly resolve this matter.
REASONS FOR 30 DAY CONTINUANCE AND REINSTATEMENT:
The allegations against Loma Linda Towing are of first impression, do not directly
affect public safety, and even arguendo if true, simply do not justify termination under the law.
Loma Linda has made a substantial investment to serve the City of San Bernardino.
Unfortunately, legitimate police concerns which although not contract violations and can readily
be satisfied by Loma Linda Towing, have now caused an illegal termination of Loma Linda
Towing which only invites unnecessary litigation.
Common sense requires that the common council place a 30 day freeze on this
matter and permit Loma Linda to earn a livelihood.
Moreover, although more technical in nature, Loma Linda's due process rights
under California and Federal law were not appropriately adhered to during the Police
Commission Hearing of April 8, 1996. In a letter to you dated May 6, 1996, my co-counsel,
Amy Greyson of Brunick, Alvarez and Battersby sets forth in detail the violations of due
process. Suffice it to say that at the police commission hearing, there was concern about losing
a quorum and a motion was made to terminate Loma Linda Towing before Leo Wenzel had a
Mayor and Common Council
May 20, 1996
Page 2
chance to speak. This is not fair. This is not due process. This is the stuff of which litigation
is made. Moreover, at a full and fair hearing Loma Linda Towing would present its case as set
forth in items 1 through 5, below, and most certainly would not have its' tow agreement
terminated.
San Bernardino's March 19, 1996 termination letter to Loma Linda Towing sets
forth alleged violations which, even if they are assumed true, do not justify or require
termination under the City Charter, Common Council Resolution No. 95-241, the agreement for
two services between the City and Loma Linda Towing, and fundamental fairness.
In particular, the City's resolutions and contract with Loma Linda Towing
specifically incorporate the California Highway Patrol (CHP) Tow Service Agreement. The
CHP Tow Service Agreement specifically sets out "minor" violations which justify reprimands
or even at times suspensions, but do not require termination especially upon alleged first
violations. Loma Linda Towing has been a successful tow carrier for the City from the
inception of its contract on July 27, 1995 and has not received any written or oral reprimands
until the March 19, 1996 termination letter after just under a year of service.
ANALYSIS IN SUPPORT OF 30 DAY CONTINUANCE AND
REINSTATEMENT:
As to the alleged violations against Loma Linda Towing, I will address them in
turn:
1. Alleged violation of paragraph 2 a of towing agreement requiring minimum
storage space for 200 vehicles outside and 12 vehicles inside. First, there is a serious question
whether the City grandfathered in Loma Linda Towing along with its other carriers based upon
years of service to the City and allowed them an opportunity to comply in a reasonable time.
Second, it has been known since before Loma Linda's towing contract by members of the
Common Council and Police Commission that Loma Linda Towing closed escrow on a piece
of property in August of 1995 which provides more space than the requirements of the contract.
Furthermore, Loma Linda Towing committed over $50,000 for its conditional use permit with
the city which has been approved. Under the facts a reprimand or even a suspension is not
justified. Furthermore, there is a real question whether all the other police tow carriers comply
with this space requirement. There is no reason to single out Loma Linda Towing, especially
since it has the requisite storage space. Termination of the contract under these facts is a
violation of law.
Mayor and Common Council
May 20, 1996
Page 3
2. Alleged violation of paragraph 2.d of the agreement requiring the vehicles
be stored in a "safe" space. Loma Linda has towed and stored thousands of vehicles since the
inception of this contract and its' franchise in early 1995. One incident of alleged theft,
although unfortunate, does not mean Loma Linda's storage facility is unsafe or that the matter
was handled improperly. Specifics as to security are not even set out in your contract with
Loma Linda Towing. The CHP Tow Service Agreement provides at page 12, Item 8, that the
operators have a "fence" and shall act "reasonably". Loma Linda Towing has had a fence and
acts reasonably to prevent theft and promptly reports any such theft as in this case. This
incident certainly does not justify termination.
3. Alleged violation of paragraph 2.m of the agreement requiring "adequate
equipment to handle calls". Loma Linda Towing is alleged on three occasions to have taken 30
minutes, 35 minutes and 47 minutes to reach a location. First, the tow agreement does not
require any maximum time for arrival. Second, the CHP Tow Service Agreement does not set
a maximum response time for all calls. However, where a local commander sets a maximum
response time, violations are considered to be "minor violations" under the agreement. Indeed,
response times vary depending upon time of day, weather, equipment, location, etc. Only a
volume of successive minor violations justify letters of reprimand. Given the volume of tows
by Loma Linda Towing, three alleged late incidents of under one-half hour each simply do not
justify a written reprimand under the CHP Tow Service Agreement. Termination under these
facts is illegal.
4. Alleged violation of paragraph 2.f and 2.1 of the agreement requiring broad
compliance with City rules. Loma Linda is alleged to have charged an administrative fee of
$40.00 for processing request to obtain personal property which was to be acknowledged and
applied to the storage fees. The City's ordinance neither approves nor disapproves of such a
fee. Indeed, the CHP Tow Service Agreement, at page 13, 2(a), specifically permits a personal
property release fee after hours. Again, this type of issue at best justifies a reprimand however,
in light of my client's prompt compliance with the police request to not charge this fee and the
ambiguity of the applicable law, a reprimand is unfair. Termination is not justified.
5. Alleged violation of paragraph 2.1 of the agreement regarding broad
compliance with all rules. Loma Linda is alleged to have claimed in advance it could handle
leaking diesel fuel when in fact it could not. It is noteworthy that the dispatcher's initial call
did not mention a fuel leak. There is a true dispute of fact as to what happened. Exactly what
Loma Linda was told from the dispatcher can only be determined by obtaining the dispatcher's
tapes. These tapes have not been present at any of the previous hearings. Due consideration
should be given to the fact that the city did not contact its hazardous material removal team since
apparently none of the city's police tow carriers are set up to remove hazardous waste.
Accordingly, fundamental fairness requires that this issue be more thoroughly examined
Termination is not justified.
Mayor and Common Council
May 20, 1996
Page 4
I remain hopeful that the legitimate concerns of the City can be more than
adequately addressed by Loma Linda Towing and that we can all avoid litigation.
Respectfully submitted,
RING & GREEN,,----
B .
Y
Rob A. Ring, tto eys for
RAR:csc Loma Linda Towi
cc: City Attorney
Police Chief
Amy Greyson, Esq.
2\Lo m3\SanBernardino\M ayor
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