A private towing business has filed a lawsuit against the city of Bowling Green, alleging an existing ordinance that regulates fees for towing services is unconstitutional.
The challenge comes as the city commission considers amending the measure.
Local law currently allows towing companies to charge up to $175 to retrieve a vehicle, plus a $25 after-hours fee. The ordinance caps a boot removal at $100 and permits a $10 processing fee for credit card payments.
The latest proposal lowers the maximum retrieval fee to $75 and eliminates the after-hours fee. Boot removal is capped at $50 and credit card fees are lowered to $5.
Fountain Square Towing contends state and federal law don't allow local governments to regulate prices for private industry.
The ordinance is "a restriction on free enterprise and therefore constitutes a taking of property and/or a violation of due process, all contrary to the Fifth and Fourteenth Amendments to the United States Constitution," the lawsuit reads. "It is an arbitrary interference with the free flow of commerce—the free enterprise system—and is not justified or to be justified by the police power of the City of Bowling Green. It is clearly a violation of the letter and spirit of Section 2 of the Kentucky Constitution."
Fountain Square Towing is represented by attorney Alan Simpson who’s challenging both the existing and proposed new ordinance.
“It is quite a slippery slope," Simpson told WKU Public Radio. “If this is allowed, they could set rates for car washes, haircuts, nail salons, lawn mowing, you name it. They could try to affect commerce, and that’s just illegal.”
The owner of Fountain Square Towing is Brian “Slim” Nash, a former Bowling Green city commissioner. His business has drawn opposition from some members of the public who allege predatory towing and price gouging.
But Simpson argues the city commission, over the past two years, "has been on a crusade to target Mr. Nash's business."
"This is a property rights issue for people who own the land. They post signs, 'Do not park here.' Then people feel so entitled that they park there anyway and when they get their car towed, they lose their minds," Simpson said. "They go to social media and complain about Fountain Square Towing when all Fountain Square Towing is doing is living up to their contractual obligations with the people who own the land."
The lawsuit is seeking permanent injunctive relief that prohibits the city from regulating the prices that the plaintiff may charges for its services.
Mayor Todd Alcott didn’t return a call seeking reaction to the lawsuit, and City Attorney Hillary Hightower said through a spokesperson that she had no comment.
The city commission is scheduled to hear first reading of the proposed new ordinance at a
meeting Tuesday evening. Any vote in favor of amending the existing measure would be non-binding until a second reading is held in March.
