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
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-1723-M
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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that this opinion should not be published and is not precedent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.