Lucky 13 Industries, LLC v. Commissioner of Motor Vehicles

Syllabus

The plaintiff, a licensed used car dealer and repairer, appealed to this court from the judgment of the trial court dismissing its administrative appeal from the decision of the defendant Commissioner of Motor Vehicles concluding that the plaintiff had charged an illegal gate fee for the release of a vehicle following a nonconsensual tow to its place of business. The plaintiff towed the vehicle from the scene of an accident to its storage yard at the request of a police officer. A Co., the vehicle's insurer, hired C Co., a salvage company, to retrieve the vehicle. Before C Co. had dispatched a driver to do so, the plaintiff informed C Co. of the total towing and storage charges, which included a $93.59 fee to move the vehicle out of the storage yard and to position it for loading. C Co. directed T Co., a tow operator, to retrieve the vehicle on its behalf. When T Co.'s driver arrived at the plaintiff's place of business, the plaintiff provided him with a form entitled ''Consensual Tow Form,'' which stated, inter alia, that, although T Co. could obtain the vehicle without paying a fee if the driver agreed to wait for a reasonable amount of time following his request for its release, T Co. requested that the plaintiff immediately release the vehicle. The driver signed the form, and the plaintiff released the vehicle to him. A Co. then filed a complaint with the Department of Motor Vehicles, alleging that the $93.59 charge was an illegal gate fee. Following a hearing, the commissioner deter- mined that the tow at issue was nonconsensual and that the fee was charged in violation of the applicable statute (§ 14-66 (a) (3)) and regula- tion (§ 14-63-36c (a)). The plaintiff was ordered to pay $93.59 in restitu- tion to A Co. and a $1000 civil penalty to the department. Held: 1. This court declined to review the plaintiff's unpreserved claim that federal law preempted any state regulations that purported to prohibit the fee that it charged because such fee was paid pursuant