Cole v. City of Dallas

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-10194 Summary Calendar

PETER T. COLE Plaintiff - Appellant v.

CITY OF DALLAS Defendant - Appellee - - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-1723-M - - - - - - - - - - November 9, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:* Peter T. Cole appeals the district court’s denial of his

civil rights complaint in which he requested injunctive and

declaratory relief, damages, attorneys’ fees, and costs. The

City of Dallas (City) denied Cole’s request for a wrecker

driver’s permit pursuant to chapter 48A-13(a)(7)(A)(xiii), which

prohibits the issuance of a wrecker driver’s permit to a person

who has been convicted of a crime involving a violation of the

Controlled Substances Act, or a comparable state or federal law, * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-10194 -2-

that is punishable as a felony for which less than five years

have elapsed since the date of conviction or the date of

confinement for the last conviction, whichever is the later date.

The district court concluded that chapter 48A of the Dallas city

code, which regulates the towing services industry in Dallas, has

not been preempted by 49 U.S.C. § 14501 (c). Cole argues that 49

U.S.C. § 14501 (c) preempts chapter 48A and that the safety

exemption of § 14501(c)(2) does not apply to municipalities.

In a supplemental letter brief filed after our decision in

Stucky v. City of San Antonio, 260 F.3d 424 (5th Cir. 2001), the

City of Dallas states that “[a]s [chapter] 48A-13(a)(7)(A)(xiii)

is a motor vehicle safety regulation, the City acknowledges that

Stucky prohibits a city from enacting or enforcing such a law.”

The City then puts forward several arguments for the

reconsideration of Stucky. Only the en banc court can reconsider

Stucky. We are bound by it. The City’s concession decides this

case. Accordingly, the district court’s judgment is VACATED,

and the case is REMANDED to the district court for further

consideration consistent with this opinion.