Office of the Attorney General
State of Tennessee
*1 Opinion No. 81-592
November 3, 1981
RE: Litigation tax
VICTOR H. ASHE
State Senator
KNOXVILLE, TN.
QUESTION
Is T.C.A. § 67-4102 Item J, in imposing a $5.25 litigation taxon parking tickets, constitutional?
OPINION
It is the opinion of this Office that T.C.A. § 67-4102 Item J isin compliance with both the State and federal Constitutions.
ANALYSIS
The 1981 General Assembly, through Public Chapter 488 [T.C.A. §67-4102 Item J], enacted a major revision of the litigation taxes. Thatstatute levies a $5.25 tax in all civil suits and in all criminal casesinstituted in any city court. Because parking tickets and other minor trafficviolations are technically civil in nature, they are subject to this litigationtax. Subsection b(D) of Item J provides that, in actions brought by thegovernment, the litigation tax is to be collected "[u]pon judgment againstthe defendant in any original civil action,... from the defendant...."The upshot of that provision is that a parking ticket may be resolved bypayment of the nominal fine, but if a defendant contests the ticket incourt and loses he then is liable for the $5.25 litigation tax in additionto the fine. Your letter requests examination of this provision in lightof constitutional protections.
The litigation tax does appear burdensome when attached to the contestof a minor traffic violation, since the tax may exceed the fine severaltimes over. In the opinion of this Office, however, that does not invalidatethe litigation tax. The tax is levied on the privilege of using the courtsystem and offsets a portion of the expense of maintaining an elaboratejudiciary. The court system affords relief to citizens on minor as wellas major matters, and the facilities used are not necessarily less in aminor trial where only a small fine is at stake than in a major case. Thus,it makes sense to impose a flat litigation tax without regard to the amountat stake in each case. Of course, litigation taxes could be so high asto burden access to the courts; that, however, is not the case with respectto this small fee. The tax appears steep only because the base fine inminor traffic cases is so low.
Litigation taxes inherently burden access to the judicial system. Theyalways make it easier to resolve matters without resorting to the facilitiesof a court of law. Any burden, however, is of a de minimis nature whenthe flat rate litigation tax is so low. It has never been suggested thattaxation of the privilege of litigating is any less valid and justifiablethan taxation by the state of a myriad of other privileges.
A similar situation came before the court in People v. Gill, 77 Mich.App. 248, 258 N.W.2d 493 (1977). There, costs totaling fifty dollars wereimposed on a fine of ten dollars. The court found no problem inherent inthis, even though the defendant, who had received merely a traffic ticket,would have faced only a fine had he pled guilty. The court did not deemthis to burden the constitutional right to trial, any more than a pleabargain agreement may function in a similar way. Even courts that havefound problems in the raising of a fine or sentence as a result of litigatinga charge have not hesitated to impose reasonable court costs after trialthat obviously would not have applied had there been no trial. See Peopleof City of Pontiac v. Courts, 401 Mich. 57, 257 N.W.2d 101, 103 (1977).
*2 Certainly, the litigation tax under scrutiny here is reasonablein amount and is imposed only upon judgment against a defendant. Therefore,it is the opinion of this Office that the new Item J litigation tax ofT.C.A. § 67-4102 is constitutionally valid.
By: Charles L. Lewis
Tenn. Op. Atty. Gen. No. 81-592, 1981 WL 169284 (Tenn.A.G.)
END OF DOCUMENT
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Tenn. Op. Atty. Gen. No. 97-029
Office of the Attorney General
State of Tennessee
*1 Opinion No. 97-029
March 31, 1997
Collection of Judgments Due Municipalities
Senator Stephen I. Cohen
Suite 8, Legislative Plaza
Nashville, Tennessee 37243-0030
QUESTIONS
The following questions address different methods to collect outstandingjudgments owed to the City of Memphis.
1. Under current state law, may the Memphis City Court, pursuant tocity ordinance or otherwise, collect outstanding judgments:
A. By restricting the issuance of license plates until the applicanthas paid all outstanding traffic fines?
B. By suspending the driver's license of a traffic violator until heor she has paid the outstanding judgment?
2. Would new legislation to implement any of the following mechanismspresent constitutional problems:
A. Requiring the State to suspend a violator's driver's license untilhe or she pays judgments due to municipalities;
B. Conditioning renewal of a driver's license upon payment of all outstandingjudgments due municipalities; or
C. Enabling the city to use the County Court Clerk's Office to collectoutstanding judgments?
OPINIONS
1. A. Under current state law, the Memphis City Court may not collectoutstanding judgments by restricting the issuance of state license platesuntil the applicant has paid outstanding fines.
B. Under current state law, the Memphis City Court may only suspendan individual's driver's license to collect an unpaid traffic fine if failureto pay the fine violates an order to pay in installments under Tenn. CodeAnn. § 40-20-104. Otherwise, the Memphis City Court is not authorizedto collect outstanding judgments by suspending the driver's license ofa traffic violator until he or she has paid the outstanding fine.
2. Although this Office can provide no definitive opinion on the constitutionalityof any proposed legislation without reviewing the bill itself, legislationimplementing any of these measures should satisfy the following generalcriteria. Because Memphis is a home rule municipality, the General Assemblymay act with respect to it only by laws which are "general in terms andeffect." Thus, any law to implement these measures should be of generalapplicability rather than by private act or by an act of purely local applicability.The legislation must also contain adequate procedural safeguards to satisfydue process requirements. These will include, at a minimum, adequate noticeand a right to challenge the refusal to renew or the suspension in an administrativehearing.
ANALYSIS
This opinion addresses different means the City of Memphis may use toenforce collection of outstanding judgments due the municipality. It isassumed that these fines were imposed by the city court for violation ofmunicipal ordinances. The Memphis City Charter authorizes the city to bringan action in the nature of a civil action for the violation of a city ordinancein the city court, and authorizes the city judge to render judgment forthe city in such actions. Memphis City Charter, § 284. Under §285 of the charter, the city judge may grant an execution to enforce anunpaid judgment against the city. Proceedings to enforce the executionmust be "... in conformity with the provisions of law now applicable toexecutions issued by justices of the peace in civil actions before them."Memphis City Charter, § 285. Section 285 also authorizes the cityjudge to issue a capias to have the defendant brought before the courtif the judgment has not been paid within ten days. The charter does notgrant the city judge the enforcement powers you ask about in your opinionrequest. Although one part of the question refers only to traffic violators,you do not indicate elsewhere whether your question is limited to collectionof fines for traffic violations, or would be imposed to collect any unpaidjudgment owing the city, whether or not the judgment was assessed for atraffic violation.
*2 Memphis is a home rule municipality. Under Tenn. Code Ann. §6-54- 305, a home rule municipality is authorized to set maximum penaltiesof thirty days imprisonment and/or fines up to five hundred dollars forviolation of home rule municipal ordinances. Under Tenn. Code Ann. §6-54-303, a municipal court may issue execution on fines and costs thatremain unpaid for thirty days after the judge has entered the judgment.In addition, Tenn. Code Ann. § 55- 10-307(a) provides:
Any incorporated municipality may by ordinance adopt, by reference,any of the appropriate provisions of §§ 55-8-101 -- 55-8-180,55-10-101 -- 55- 10-310, 55-50-301, 55-50-302, 55-50-304, 55-50-305, 55-50-311,and 55-50- 312, and may by ordinance provide additional regulations forthe operation of vehicles within the municipality, which shall not be inconflict with the provisions of such sections. All fines, penalties, andforfeitures of bonds imposed or collected under the terms of §§55-50-311 and 55-50-312, shall be paid over to the appropriate state agencyas provided in § 55-50- 604.
Under this statute, municipalities may adopt by ordinance various statetraffic provisions. If a municipality adopts any of these provisions byordinance, it may enforce them as municipal violations within the territoriallimits of the municipality and may "enforce such additional ordinancesfor the regulation of the operation of vehicles as it deems proper." Tenn.Code Ann. § 55-10-308.
Your request includes various proposals involving issuance or suspensionof motor vehicle registration or a driver's license. Each of these areasis governed by an extensive state statutory scheme.
1. Authority of the Memphis City Court
A. Authority to restrict issuance of state license tags
You ask first whether, under current law, the Memphis City Court couldinstruct the County Clerk not to issue license plates to anyone who hasan outstanding unpaid judgment owing the city. No statute expressly providessuch authority. As noted above, Tenn. Code Ann. § 6-54-303 authorizesa municipal court to issue execution on fines and costs that remain unpaidfor thirty days after the judge has entered the judgment. The clerk mayissue execution from the court in the same manner and methods as prescribedin chapters one through three of Title 26. These statutes prescribe themethod of issuance and authorize garnishment or levy of execution againstthe judgment debtor's property. None of these statutes includes the typeof measure you propose. Further, such a measure would be inconsistent withstate law governing the issuance of license plates.
Registration of motor vehicles is governed by Tenn. Code Ann. §§55-4-101, et seq. The Division of Motor Vehicles, which handles registration,was transferred from the Department of Revenue to the Department of Safetyby Executive Order No. 37 (June 29, 1990). Application for registrationis to be made as prescribed under the statute to the county clerk of thecounty of the owner's residence or of a county where the vehicle is basedor to be operated. Tenn. Code Ann. § 55-4-101(c). Under subsection(d) of this statute, once the county clerk finds that the title or applicationis in order and fees required under the motor vehicle registration lawshave been tendered, the clerk is required to forward the application tothe State. The statute provides no discretion to the county clerk to refuseto forward an application that is in order and accompanied by the requiredfees, or to refuse to release to the applicant registration materials theclerk has received from the State. A city ordinance or a city court orderprohibiting the clerk from forwarding an application or issuing a licenseplate because the applicant has not paid an outstanding city judgment wouldbe inconsistent with the statutory scheme governing motor vehicle registration,and thus, would be invalid under existing state law. See Op. Tenn. Atty.Gen. 88-167 (September 9, 1988) (the Metropolitan Government of Nashvilleand Davidson County is not authorized to pass an ordinance restrictingthe issuance of a state license plate because an applicant has outstandingfines or warrants for parking or traffic violations).
*3 B. Authority to suspend license for non-payment of judgment
Your next question is whether a city court may suspend the driver'slicense of a traffic violator until such individual has paid the judgment.This question, therefore, appears to be limited to collection of judgmentsbased on traffic violations. The analysis of this question is similar tothe analysis above. One statute expressly authorizes a court to suspenda defendant's license for nonpayment of a fine in a limited circumstance.This statute appears in Tenn. Code Ann. §§ 40-24-101, et seq.,relating to payment of criminal fines. Under Tenn. Code Ann. § 40-24-101,any court, including a municipal court for a violation of a municipal ordinance,may direct a fine to be paid at different times and in different mannerslisted in the statute, including in installments. Tenn. Code Ann. §40-24-104 provides:
(a) If the defendant fails to pay the fine as directed, or if he isunable to pay the fine and so represents upon application to the court,the court, after inquiring into and making such further investigation,if any, which it may deem necessary with regard to the defendant's financialand family situation and the reasons for nonpayment of the fine, includingwhether such nonpayment was contumacious or was due to indigency, may enterany order which it could have entered under § 40-24-101, or may reducethe fine to an amount which the defendant is able to pay, or may directthat the defendant be imprisoned until the fine, or any portion of it,remaining unpaid or remaining undischarged after a pro rata credit forany time which may already have been served in lieu of payments, is paid.The court shall determine and specify, in the light of defendant's situationand means and of his conduct with regard to the nonpayment of the fine,the period of any imprisonment in default of payment of the fine withinthe limits of the penalties for a Class C misdemeanor.
(b) Whenever a court orders a defendant to pay a fine, imposed as aresult of a traffic violation, in installment payments, the court shallrevoke the defendant's privilege to operate a motor vehicle in this stateupon the failure of the defendant to comply with the order of the court.If the defendant's privilege to operate a motor vehicle has been revokedfor the failure to comply with such court order, the privilege shall remainso revoked until the total amount of the fine imposed is paid.
Tenn. Code Ann. § 40-24-104(1990) (emphasis added). Thus, in thecircumstances described above, the city court may suspend an individual'sdriver's license.
The authority to suspend an individual's license for failure to paya fine in other circumstances must be inferred from the general statutoryscheme governing issuance and suspension of driver's licenses. All magistratesand judges are generally required to forward a report concerning convictionsor forfeitures of bail for traffic violations to the Department of Safetywithin thirty days. Tenn. Code Ann. § 55-10-306(b)(1). Issuance ofdriver's licenses is governed by Tenn. Code Ann. §§ 55-50-101,et seq. The statutory scheme is administered by the Tennessee Departmentof Safety. Tenn. Code Ann. § 55-20-102. Tenn. Code Ann. §§55-50-501, et seq., provide for suspension and revocation of driver's licenses.Certain state statutes include a mandatory driver's license suspensionupon conviction of an offense, such as driving under the influence. UnderTenn. Code Ann. § 55-50-503, the court in which any such convictionis had must require the convicted offender to surrender his or her driver'slicense, which the court must then forward to the Department of Safety.The statute expressly provides that a court may recommend to the Departmentof Safety the suspension of a driver's license of a person convicted insuch court of traffic violations. This statute provides:
*4 (b) Every court having jurisdiction over offenses committed underthis chapter, or any other statute of this state or municipal ordinanceof any city or town regulating the operation of motor vehicles on highways,shall forward to the department a record of the conviction of any personin the court for a violation of any of these laws and may recommend thesuspension of the operator's or chauffeur's license of the person so convicted.
Tenn. Code Ann. § 55-50-503(b) (emphasis added). Finally, theDepartment of Safety is authorized to suspend an individual's driver'slicense for a variety of reasons, including failure to pay certain trafficfines. The statute provides in relevant part:
The department is hereby authorized to suspend the license of an operatoror chauffeur upon a showing by its records or other sufficient evidencethat the licensee:
****
(8) Has been finally convicted of any driving offense in any court andhas not paid or secured any fine or costs imposed for that offense; (9)Has failed to appear in any court to answer or to satisfy any traffic citationissued for violating any statute regulating traffic. No license shall besuspended pursuant to this subdivision for failure to appear in court onor failure to pay a parking ticket or citation or for a violation of §55-9- 603. Prior to suspending the license of any person as authorizedin this subsection, the department shall notify the licensee in writingof the proposed suspension and, upon the licensee's request, shall affordthe licensee an opportunity for a hearing to show that there is an errorin the records received by the department; provided, that such a requestis made within twenty (20) days following the notification of proposedsuspension or cancellation. Failure to make such a request within the timespecified shall without exception constitute a waiver of such right[.]
Tenn. Code Ann. § 55-50-502(a)(8) & (9)(Supp. 1996). At theend of the ten enumerated reasons authorizing the Department of Safetyto suspend a license, the following proviso appears:
provided that no municipal law enforcement officer is authorized toseize the license of an operator or chauffeur for a traffic offense inviolation of a municipal ordinance or a traffic offense as provided inchapter 8 of this title.
The primary rule in statutory construction is to give effect to thelegislative intent. Mercy v. Olsen, 672 S.W.2d 196 (Tenn. 1984). The meaningof the statute is to be determined not from special words in a single sentenceor section but from the statute taken as a whole and viewing the legislationin the light of its general purpose. State ex rel. Bastnagel v. City ofMemphis, 224 Tenn. 514, 457 S.W.2d 532 (1970). Therefore, in construingall these statutes together, this Office concludes that the Memphis CityCourt is not authorized to suspend the driver's license of a traffic offenderfor failure to pay the traffic fine, unless the failure to pay violatesa prior order to pay in installments under Tenn. Code Ann. § 40-20-104.Except in the circumstances covered by that statute, the court must forwarda record of the traffic conviction to the Department of Safety and mayrecommend that the Commissioner of Safety revoke such individual's license.The Commissioner may suspend the traffic offender's license either forfailure to pay the fine or for the traffic offense itself, all in accordancewith Tenn. Code Ann. § 55- 50-502.
*5 2. Statutory Changes
Your next question concerns possible methods for enforcing paymentof outstanding judgments owing the city. These changes would be implementedby new legislation. Of course, this Office can provide no definitive opinionon the constitutionality of any proposed legislation without reviewingthe bill itself. The following discussion addresses general constitutionalissues that proposed legislation to implement the methods you contemplatewould involve.
As discussed above, Memphis is a home rule municipality. Under ArticleXI, Section 9 of the Tennessee Constitution, the General Assembly may actwith respect to a home rule municipality only by laws that are "generalin terms and effect." Thus, any legislation to implement these measuresshould be of general applicability rather than by private act or by anact of purely local applicability.
A. Requiring the State to suspend a violator's driver's license untilhe or she pays judgments due to municipalities
As discussed above, state law currently authorizes, but does not require,the Department of Safety to suspend an individual's driver's license forconviction of traffic violations or failure to pay traffic fines. You askwhether legislation could require suspension of a driver's license fornonpayment of a judgment due a municipality. It is not clear whether thismeasure would be used to collect outstanding judgments based only on trafficviolations, or would include any judgment, whether or not based on an offenserelated to the operation or ownership of a car. It is a fundamental conceptof law that a driver's license, after being first issued, becomes a propertyright that cannot be revoked or suspended without the procedural due processthat is required by the Fourteenth Amendment. Mackey v. Montrym, 443 U.S.1, 10(1979). The Fourteenth Amendment to the United States Constitutionprovides that no State shall "deprive any person of life, liberty, or property,without due process of law . . .." Likewise, Article I, Section 8 of theTennessee Constitution states:
That no man shall be taken or imprisoned, or disseized of his freehold,liberties or privileges, or outlawed or exiled, or in any manner destroyedor deprived of his life, liberty or property, but by the judgment of hispeers or the law of the land.
"[D]ue process is flexible and calls for such procedural protectionsas the particular situation demands." Morrissey v. Brewer, 408 U.S. 471,481 (1972). To determine what standard is used, courts have developed abalancing test to be applied in connection with the protected interest.In Mackey, the Supreme Court considered the following factors:
First, the private interest that will be affected by the official action;second, the risk of an erroneous deprivation of such interest through theprocedures used, and the probable value, if any, of additional or substituteprocedural safeguards; and finally the Government's interest, includingthe function involved and the fiscal and administrative burdens that theadditional or substitute procedural requirement would entail.
*6 443 U.S. at 10, quoting Matthews v. Eldridge, 424 U.S. 319, 335(1976). This Office has discussed the procedural safeguards that mightbe required in a statute authorizing a summary suspension and subsequentrevocation of the driver's license of a DUI violator who refuses to takea blood test. Op. Tenn. Atty. Gen. 96-048 (March 14, 1996). In that opinion,this Office noted that the governmental interest involved in such suspension-- protecting the public from the risk of drunk drivers -- was an importantfactor in concluding that the summary suspension satisfied due process.Suspending an individual's driver's license until he or she has paid anoutstanding judgment, whether or not such judgment is related to the driver'suse of a car, by contrast, would not be directly related to protectingthe public safety. The only available case discussing the constitutionalityof a statutory scheme allowing suspension of an individual's license fornonpayment of a non-traffic fine is Milwaukee v. Kilgore, 193 Wis.2d 168,532 N.W.2d 690 (1995). In that case, the Wisconsin Supreme Court uphelda statute authorizing municipal courts to suspend an individual's driver'slicense until he or she paid an outstanding fine against challenges basedon several constitutional provisions. The Court concluded that the statuteprovided adequate procedural protections before the suspension could beimposed. The Court noted:
... Ch. 800 [the challenged statute] suspensions ensure proceduraldue process because the sanction is not imposed unless all of the followingoccur: (1) the defendant is notified that failure to pay the fine within60 days after payment is ordered may result in suspension; (2) the suspensionis rescinded and the operating privilege reinstated once the fine is paid;(3) the suspension will not be enforced against any individual who is ableto demonstrate an inability, for good cause or indigence, to pay the fine;and (4) the suspension is limited in duration not to exceed 5 years.
532 N.W.2d at 697 (citation omitted). It therefore appears that a statuteproviding such safeguards could be upheld against a due process challenge.
A statute authorizing suspension of a driver's license for nonpaymentof a judgment based on an offense that is not traffic-related could bechallenged on the grounds that it violates the "excessive penalty" clauseof the Eighth Amendment to the United States Constitution prohibiting excessivepenalties. The United States Supreme Court has never made this clause ofthe Eighth Amendment applicable to the states. See, e.g., Browning-FerrisIndustries v. Kelco Disposal, Inc., 492 U.S. 257, 276 n. 22 (1989). Nevertheless,the Wisconsin Supreme Court in Kilgore considered the argument that itsstatutory scheme violated the this clause because there was no relationship,rational or otherwise, between the offense on which the judgment was basedand the suspension of the driver's license. The Wisconsin Supreme Courtrejected this challenge. The Court concluded that allowing a municipalcourt to suspend a driver's license was rationally related to the State'slegitimate interest in securing compliance with orders issued by its courts.
*7 B. Conditioning renewal of a driver's license upon payment of alloutstanding judgments due municipalities
Next, you ask whether legislation could prevent an individual fromrenewing his or her driver's license until he or she has paid all outstandingjudgments. Under Tenn. Code Ann. § 55-50-503(b), any person convictedof any offense requiring mandatory revocation of driving privileges mustpresent certification from the court to the Department of Safety eitherthat the fines and costs were paid to the court, or that they were waivedas a result of the person being found to be indigent by the court. Whilean individual has no federally protected right to be issued a driver'slicense, federal courts have found that an applicant for a driver's licensehas a constitutionally protected right to procedural due process in thestate application procedures under which the determination of whether toissue such a license will be made. Raper v. Lucey, 488 F.2d 748 (1st Cir.1973); Freitag v. Carter, 489 F.2d 1377 (7th Cir. 1973). Thus, any statutepreventing renewal of a driver's license because the individual has outstandingjudgments owing municipalities should, at a minimum, give the driver'slicense applicant notice of the reason for the refusal to renew the licenseand an opportunity to appeal the refusal.
C. Enabling the City to use the County Court Clerk's Office to collectoutstanding judgments
Finally, you ask whether legislation could enable the City of Memphisto use the County Court Clerk's Office to collect outstanding judgmentowing to the city. Your request does not indicate what role the Clerk'sOffice would play. Presumably, you contemplate restricting the issuanceof a car registration or renewal until the applicant has paid outstandingjudgments owing the city. The due process requirements applicable to theissuance of a driver's license discussed above would also apply to legislationimplementing this collection method.
John Knox Walkup
Attorney General and Reporter
Michael E. Moore
Solicitor General
Ann Louise Vix
Senior Counsel
Tenn. Op. Atty. Gen. No. 97-029, 1997 WL 188465 (Tenn.A.G.)
END OF DOCUMENT
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TN ST § 55-50-502
55-50-502 Suspension of licenses -- Hearings -- Period of suspensionor revocation -- Surrender of license -- Restricted license -- Operatingunder license of another jurisdiction prohibited -
8TNS
Approx. 5 pages
T.C.A. § 55-50-502
This document has been updated. Use KEYCITE.
TENNESSEE CODE ANNOTATED
TITLE 55 MOTOR AND OTHER VEHICLES
CHAPTER 50 DRIVER LICENSES
Part 5-- Suspension and Revocation
Copyright © 1955-1999 by The State of Tennessee. All rights reserved.
Current through End of 1999 Reg. Sess.
55-50-502 Suspension of licenses -- Hearings -- Period of suspensionor revocation -- Surrender of license -- Restricted license -- Operatingunder license of another jurisdiction prohibited -- Appeal.
(a) The department is hereby authorized to suspend the license of anoperator or chauffeur upon a showing by its records or other sufficientevidence that the licensee:
(1) Has committed an offense for which mandatory revocation of licenseis required upon conviction; provided, that in the event of a convictionresulting from the offense, the time of mandatory revocation shall be countedfrom the date upon which the driver license was received by the departmentor the circuit court clerk;
(2) Has contributed as a driver in any accident resulting in the deathor personal injury of another or serious property damage;
(3) Has been convicted with such frequency of serious offenses againsttraffic regulations governing the movement of vehicles as to indicate adisrespect for traffic laws and a disregard for the safety of other personson the highways. For purposes of this subdivision, no conviction of exceedingthe speed limit in a state other than Tennessee shall be considered bythe department unless such conviction was for exceeding the lawful speedin such other state by more than five miles per hour (5 mph). This fivemiles per hour (5 mph) allowance shall not apply in marked school zones;
(4) Is an habitually reckless or negligent driver of a motor vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has permitted an unlawful or fraudulent use of such license;
(7) Has committed an offense in another state which if committed inthis state would be grounds for suspension or revocation;
(8) Has been finally convicted of any driving offense in any courtand has not paid or secured any fine or costs imposed for that offense;
(9) Has failed to appear in any court to answer or to satisfy any trafficcitation issued for violating any statute regulating traffic. No licenseshall be suspended pursuant to this subdivision for failure to appear incourt on or failure to pay a parking ticket or citation or for a violationof § 55-9- 603. Any request from the court for suspension under thissubdivision must be submitted to the department of safety within six (6)months of the violation date. No suspension action shall be taken by thedepartment unless such request is made within six (6) months of the violationdate. Prior to suspending the license of any person as authorized in thissubsection, the department shall notify the licensee in writing of theproposed suspension and, upon the licensee's request, shall afford thelicensee an opportunity for a hearing to show that there is an error inthe records received by the department; provided, that such request ismade within thirty (30) days following the notification of proposed suspensionor cancellation. Failure to make such request within the time specifiedshall without exception constitute a waiver of such right; or
(10) Is under eighteen (18) years of age and has withdrawn either voluntarilyor involuntarily or has failed to maintain satisfactory academic progressfrom a secondary school as provided in § 49-6-3017; provided thatno municipal law enforcement officer is authorized to seize the licenseof an operator or chauffeur for a traffic offense in violation of a municipalordinance or a traffic offense as provided in chapter 8 of this title.
(b)(1) The department is hereby authorized to cancel any operator'sor chauffeur's license upon determining that the licensee was not entitledto the issuance thereof hereunder, or that the licensee failed to givethe required or correct information in the application or committed anyfraud in making such application.
(2) Upon such cancellation, the licensee must surrender the licenseso cancelled to the department.
(c)(1) The department, upon suspending or revoking a license, shallrequire that such license be surrendered to and be retained by the department.Prior to the reissuance of any license revoked because of a convictionof driving while under the influence of liquor or an intoxicating drug,after a second or subsequent conviction, the department shall require theowner to submit evidence that the owner has completed a program of alcoholor drug abuse education, or has completed treatment by a physician boardcertified or eligible in psychiatry or a licensed psychologist certifiedwith competence in clinical psychology; or, at a facility licensed by thedepartment of mental health and mental retardation to provide such treatment.Certification of the psychiatrist or clinical psychologist or facilitylicensed by the department of mental health and mental retardation underthis section is not to be construed as a prediction of future behaviorbut merely certification of completion of the program.
(2) When such examination, as required by this subsection, is administeredby a state supported mental health facility, such facility and medicaldoctors or doctors of psychology employed by such facility who administersuch examinations within the course and scope of such doctor's authorityunder the statute, shall be immune from tort liability for the proper disseminationof any report or findings to the department of safety which results fromsuch examination; provided, that this immunity shall not extend to anyother person, institution, or other member of the private sector, not employedor attached to a state supported mental health facility.
(3) The trial judge of the court wherein the trial for the offenseof operating a vehicle under the influence of alcohol or an intoxicatingdrug is pending may order the issuance of a restricted license allowingthe person so arrested to operate a motor vehicle for the purpose of goingto and from and working at such person's regular place of employment. ATennessee resident, whose operator's license has been suspended becauseof an arrest in another jurisdiction on a charge of operating a motor vehiclewhile under the influence of an intoxicating liquor or a narcotic drug,may apply to a judge of any court of the county of such person's residencehaving jurisdiction to try charges for a restricted motor vehicle operator'slicense. The judge may, in the judge's discretion, order the issuance ofa restricted motor vehicle operator's license allowing the person so arrestedto operate a motor vehicle for the purpose of going to and from and workingat such person's regular place of employment, if a copy of the arrest warrantcertified by the court where the case will be tried accompanies the application.Such order shall state with all practicable specificity the necessary timesand places of permissible operation of a motor vehicle. The person so arrestedmay obtain a certified copy of the order and within ten (10) days afterit is issued present it, together with an application fee of sixty-fivedollars ($65.00), to the department, which shall forthwith issue a restrictedlicense embodying the limitations imposed in the order. After proper applicationand until such time as the restricted license is issued, a certified copyof the order may serve in lieu of a motor vehicle operator's license. Anyrestricted license issued under the provisions of this section shall besubject to renewal in the same manner as other motor vehicle operator'slicenses.
(4) Where a nonresident whose license has been suspended or revokedby any other state subsequently becomes a bona fide resident of this state,and where the person has been granted a restricted license by the otherstate if such triggering offense would under the laws of Tennessee providefor the issuance of a restricted driver license upon petition to a judgeof the court of general sessions, or its equivalent, for the county whereinthe person resides, the judge may, in the judge's discretion, order theissuance of a restricted motor vehicle operator's license allowing theperson to operate a motor vehicle for the purpose of going to and fromand working at such person's regular place of employment during the mandatoryrevocation/suspension period. Such orders shall state with all practicablespecificity the necessary times and places of permissible operation ofa motor vehicle. The person may obtain a certified copy of the order andwithin thirty (30) days after it is issued present it, together with anapplication fee of sixty-five dollars ($65.00), to the department, whichshall forthwith issue a restricted license embodying the limitations imposedin the order. After proper application and until such time as the restrictedlicense is issued, a certified copy of the order may serve in lieu of amotor vehicle operator's license. Any restricted license issued under theprovisions of this subdivision shall be subject to renewal in the samemanner as the motor vehicle operator's license.
(d)(1) The provisions of this subsection apply only in counties havinga population of not less than eight hundred twenty-five thousand (825,000)nor more than eight hundred thirty thousand (830,000) according to the1990 federal census or any subsequent federal census.
(2) A person whose license has been suspended, pursuant to the provisionsof subdivision (a)(8) or (9), subject to the approval of the court, maypay any local fines or costs, arising from such convictions or failureto appear in any court, by establishing a payment plan with the local courtor the court clerk of the jurisdiction.
(3) The department is hereby authorized to reinstate a person's drivingprivileges when such person provides the department with certificationfrom the local court, or court clerk of the jurisdiction that such personhas entered into a payment plan with the local court or the court clerkof the jurisdiction and has satisfied all other provisions of law relatingto the issuance and restoration of a driver license.
(4) The department shall, upon notice of such person's failure to complywith any payment plan established pursuant to this subsection, suspendthe license of such person. Persons who default under this subsection shallnot be eligible for any future payment plans under this subsection. Thedepartment shall notify the person in writing of the proposed suspension,and upon request of such person within thirty (30) days of such notification,shall provide the person an opportunity for a hearing to show that suchperson has, in fact, complied with the local court's or the court clerk'spayment plan. Failure to make such request within thirty (30) days of receiptof notification shall, without exception, constitute a waiver of such right.
(5) Any person who has defaulted on a pay plan to pay fines and costsfor suspension actions taken under subdivisions (a)(8) or (9), shall notbe eligible to participate in a payment plan, nor shall the Departmentof Safety have the authority to accept a payment plan as a condition precedentto the restoration of driving privileges.
(6) Any county which participates in the payment plan authorized bythe provisions of this subsection shall pay to the state any expense requiredto be paid for state implementation of this subsection. Such payment shallbe divided pro rata among the counties to which this subsection applies.Such payment shall be made prior to the implementation by the county ofthe provisions of this subsection.
(e)(1) Any resident or nonresident whose operator's or chauffeur'slicense or right or privilege to operate a motor vehicle in this statehas been suspended or revoked as provided in this chapter shall not operatea motor vehicle in this state under a license, permit, or registrationcertificate issued by any other jurisdiction or otherwise during such suspensionor after such revocation until a new license is obtained when and as permittedunder this chapter.
(2) The privilege of driving a motor vehicle on the highways of thisstate given to a nonresident hereunder is subject to suspension or revocationby the department in like manner and for like cause as an operator's orchauffeur's license issued hereunder may be suspended or revoked.
(3) The department is further authorized, upon receiving a record ofthe conviction in this state of a nonresident driver of a motor vehicleof any offense under the motor vehicle laws of this state, to forward acertified copy of such record to the motor vehicle administrator in thestate wherein the person so convicted is a resident.
(4) The department is authorized to suspend or revoke the license ofany resident of this state or the privilege of a nonresident to drive amotor vehicle in this state upon receiving notice of the conviction ofsuch person in another state of an offense therein which, if committedin this state, would be grounds for the suspension or revocation of thelicense of an operator or chauffeur.
(f)(1) The department shall not suspend a driver license or privilegeto drive a motor vehicle on the public highways for a period of more thansix (6) months for a first offense nor more than one (1) year for a subsequentoffense, except as permitted under § 55-50-504, unless in any casean order of a court provides for a longer period of suspension. At theend of the period for which a license has been suspended, the departmentis authorized, in its discretion, to require a reexamination of the licenseeas a prerequisite to the reissuance of such license.
(2) Any person whose license is suspended for driving under the influenceof drugs or intoxicants, or for refusal to submit to a blood test under§ 55- 10-406, shall have the period of suspension computed from thetime that such person's driver license was actually taken from such person'spossession, and the period of license suspension shall begin to run fromthat point until the license is returned.
(3) Any person whose license or privilege to drive a motor vehicleon the public highways has been revoked shall not be entitled to have suchlicense or privilege renewed or restored unless the revocation was fora cause which has been removed, except that after the expiration of one(1) year or the period of suspension prescribed by a court from the dateon which the revoked license was surrendered to and received by the department,such person may make application for a new license as provided by law,but the department shall not issue a new license unless and until it issatisfied after investigation of the character, habits and driving abilityof such person that it will be safe to grant the privilege of driving amotor vehicle on the public highways. No license which has been revoked,on account of the conviction of the licensee for murder or manslaughterresulting from the operation of a motor vehicle, shall be reissued exceptas provided in § 55-50-501(a)(1).
(4) Where the revocation involved is the first revocation of the licenseor privilege of such person, such application for a new license may bemade after the expiration of six (6) months from the date on which therevoked license was surrendered and received by the department. No licensewhich has been revoked on account of the conviction of the licensee formurder or manslaughter resulting from the operation of a motor vehicleshall be reissued except as provided in § 55-50-501(a)(1).
(g) When considering the suspension of a driver license, the departmentmay take into account offenses committed by that driver outside of Tennesseeand reported to the department only if such offenses would, under the lawsof Tennessee, be considered grounds for suspension in this state. If theoffenses would be grounds for suspension in the state of conviction, butnot in Tennessee they shall be disregarded by the department.
(h) Drivers of commercial motor vehicles shall have their licensessuspended for violations and for the length of time specified in §55-50-405.
(i)(1) The department shall establish a method by which any personwho makes application for or who holds a commercial driver license mayelect an alternate address to which any suspension notices shall be mailed.
(2) At least two (2) times per month during two (2) different weeksof such month, the department shall make available for public inspectiona list of persons whose commercial driver license has been suspended.
[Acts 1937, ch. 90, § 12; impl. am. Acts 1939, ch. 205, §§2, 3; Acts 1939, ch. 205, § 6; 1949, ch. 65, § 1; C. Supp. 1950,§ 2715.20 (Williams, § 2715.25); Acts 1955, ch. 114, §§6-9; 1957, ch. 241, §§ 2, 3; 1971, ch. 135, § 1; 1971, ch.243, § 1; 1973, ch. 64, § 1; 1973, ch. 319, § 1; 1975, ch.238, § 1; 1976, ch. 450, § 1; 1976, ch. 570, § 1; 1976,ch. 607, § 1; 1978, ch. 660, §§ 2, 3; T.C.A. (orig. ed.),§ 59-713; Acts 1980, ch. 547, § 1; 1980, ch. 685, §§1, 2; 1980, ch. 817, § 3; 1982, ch. 745, § 1; 1984, ch. 861,§§ 1, 2; 1986, ch. 738, § 3; 1986, ch. 842, §§3, 4; 1988, ch. 584, § 11; 1988, ch. 664, § 1; T.C.A., §§55-7-113, 55-7-502; Acts 1989, ch. 156, § 1; 1990, ch. 819, §4; 1991, ch. 296, § 1; 1995, ch. 156, § 1; 1996, ch. 763, §3; 1997, ch. 438, §§ 1, 2; 1998, ch. 682, § 6; 1998, ch.900, § 1; 1999, ch. 140, §§ 1-3.]
HISTORICAL NOTES
Compiler's Notes. As to licenses issued on or after July 1, 1989, thedistinction between "operator's" and "chauffeur's" licenses no longer exists,and all driver licenses are issued in one of the classes specified in §55- 50-102. See also § 55-50-305.
Acts 1999, ch. 140, § 4 provided that subdivision (d) shall applyonly to citations issued for such offenses pursuant to subdivisions (a)(8)or (9) prior to July 1, 1999.
Amendments. The 1999 amendment added present (d) and redesignated former(d)- (h) as present (e)-(i).
Effective Dates. Acts 1999, ch. 140, § 4. July 1, 1999.
REFERENCES
Cross-References. Administrative appeal from driver's license revocationhearings, § 4-5-321.
Appointment of hearing officers to conduct contested case hearings,§ 4-3- 2005.
Juvenile traffic offenders, § 37-1-146.
Motor vehicles, Juvenile Offender Act, ch. 10, part 7 of this title.
Promulgation of rules and regulations by commissioner of safety, §55-50- 202.
Restricted motor vehicle licenses, juveniles, § 55-10-705.
Supplemental penalties, juveniles, § 55-10-707.
Suspension for prohibited use of off-road vehicle, § 55-10-206.
Suspension or revocation of all registrations when licenses suspendedor revoked under financial responsibility law, § 55-12-114.
Section to Section References. This section is referred to in §§55-10- 403, 55-10-411, 55-10-707, 55-12-114, 55-12-129, 55-50-321, 55-50-339,55-50-511.
Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, §28.
Law Reviews. The Tennessee Court System -- Circuit Court (Frederic S.Le Clercq), 8 Mem. St. U.L. Rev. 241.
ANNOTATIONS
Attorney General Opinions. Effective date of revocation of driver'slicense, OAG 98-0125 (7/20/98).
Cited: State v. Bryant, 678 S.W.2d 480 (Tenn. Crim. App. 1984).
Notes to Decisions.
ANALYSIS
1. Constitutionality.
2. In general.
3. Written notice not required.
4. Revocation under financial responsibility law.
1. Constitutionality.
A proceeding to have the defendant declared to be an habitual offenderand to have his driving privileges revoked does not subject him to doublejeopardy. State v. Conley, 639 S.W.2d 435 (Tenn. 1982).
2. In General.
The revocation of all driving privileges of one declared to be an habitualoffender is nothing more than the deprivation of a privilege, is "remedialin nature," and is not intended to have the effect of imposing "punishment"in order to vindicate public justice. State v. Conley, 639 S.W.2d 435 (Tenn.1982).
3. Written Notice Not Required.
Official written notice of temporary suspension of license was notrequired where highway officer took license away from defendant on arrestfor transporting liquor. Ratliff v. State, 182 Tenn. 177, 184 S.W.2d 572(1944).
4. Revocation Under Financial Responsibility Law.
An order of the commissioner of safety revoking a driver's licenseand automobile registration under former provisions of financial responsibilitylaw was reviewable only by a petition addressed to chancery court of DavidsonCounty in accordance with former § 59-1202 and not by certiorari inthe county of residence under the provisions of this section. Roney v.Luttrell, 200 Tenn. 403, 292 S.W.2d 411 (1956) (decided under prior law).
REFERENCES
Collateral References. Automobiles: necessity or emergency as defensein prosecution for driving without operator's license or while licenseis suspended. 61 A.L.R.3d 1041; 7 A.L.R.5th 73.
Civil rights and liabilities as affected by failure to comply withlicense or registration regulations. 16 A.L.R. 1108; 35 A.L.R. 62; 38 A.L.R.1038; 43 A.L.R. 1153; 54 A.L.R. 374; 58 A.L.R. 532; 61 A.L.R. 1190; 78A.L.R. 1028; 87 A.L.R. 1469; 111 A.L.R. 1258; 163 A.L.R. 1375.
Conviction or acquittal in previous criminal case as bar to revocationor suspension of driver's license on same factual charges. 96 A.L.R.2d612.
Conviction, what amounts to, within statute making conviction groundfor refusing or canceling license. 113 A.L.R. 1179.
Denial, suspension, or cancellation of driver's license because ofphysical disease or defect. 38 A.L.R.3d 452.
Necessity of notice and hearing before revocation or suspension ofmotor vehicle driver's license. 60 A.L.R.3d 361.
Nonresident, discrimination against. 61 A.L.R. 347; 112 A.L.R. 63.Nonresident operators' or drivers' licenses, statute with respect to. 82A.L.R. 1392.
Regulations establishing a "point system" as regards suspension orrevocation of license of operator of motor vehicle. 5 A.L.R.3d 690.
Second offense, in operating vehicle or other instrumentality withoutproper license or permit, as applied to several vehicles or instrumentalitiesowned or operated by same person. 158 A.L.R. 772.
Statute providing for judicial review of administrative order revokingor suspending automobile driver's license as providing for trial de novo.97 A.L.R.2d 1367.
Sufficiency of notice and hearing before revocation or suspension ofmotor vehicle driver's license. 60 A.L.R.3d 427.
Validity, construction, and application of statute or ordinance relatingto revocation of license. 71 A.L.R. 616; 108 A.L.R. 1162; 125 A.L.R. 1459.
Validity of motor vehicle financial responsibility act. 35 A.L.R.2d1011; 2 A.L.R.5th 725.
Validity and application of statute or regulation authorizing revocationor suspension of driver's license for reason unrelated to use of, or abilityto operate, motor vehicle. 18 A.L.R.5th 542.
T.C.A. § 55-50-502
TN ST § 55-50-502
END OF DOCUMENT
=============================
Rhodes v. Pioneer Parking Lot, Inc.
501 S.W.2d 569.
Tenn. 1973.
Nov. 19, 1973. (Approx. 3 pages)
Supreme Court of Tennessee.
Bobby Joe RHODES, Plaintiff-Appellee,
v.
PIONEER PARKING LOT, INC., Defendant-Appellant.
Nov. 19, 1973.
Action against owner of unattended 'park and lock' lot on account oftheft of plaintiff's automobile. The Circuit Court, Hamilton County, JamesF. Morgan, J., rendered judgment for plaintiff and defendant appealed.The Supreme Court, W. M. Leech, Special Justice, held that there was nobailment, and owner of lot was not liable, where automobile was never deliveredinto lot owner's possession and control since plaintiff deposited fee onentering, receiving from machine a ticket disclaiming bailment relation,chose a parking space and locked automobile, with no contact with any oflot owner's employees, although ticket stated that cars parked withoutvalidated tickets would be towed away.
Judgment reversed and case dismissed.
West Headnotes
[1] KeyCite this headnote
50 Bailment
50k1 k. Nature and Elements in General.
Bailment is delivery of personalty to another for particular purposeor on mere deposit, on contract express or implied, that after purposehas been fulfilled property should be returned to person who deliveredit or otherwise dealt with according to his direction or kept until hereclaims it.
[2] KeyCite this headnote
50 Bailment
50k5 k. Delivery and Acceptance.
Creation of bailment in absence of express contract requires that possessionand control pass from bailor to bailee; there must be full transfer, actualor constructive, so as to exclude property from possession of owner andall other persons and give bailee sole custody and control for time being.
[3] KeyCite this headnote
50 Bailment
50k5 k. Delivery and Acceptance.
Bailment is created when operator of parking lot or garage has knowinglyand voluntarily assumed control, possession, or custody of vehicle butif he has not done so there may be mere license to park or lease of parkingspace.
[4] KeyCite this headnote
48A Automobiles
48AVIII Garage Keepers, Repairmen, Auto Liverymen, and FillingStations
48Ak369 Storage of Vehicles; Parking Facilities
48Ak372 Injury to or Loss of Vehicleor Contents
48Ak372(1) k. In General;Nature of Relation.
50 Bailment
50k5 k. Delivery and Acceptance.
There was no bailment, and owner of unattended "park and lock" lot wasnot liable for theft, where automobile was never delivered into lot owner'spossession and control since plaintiff deposited fee on entering, receivingfrom machine a ticket disclaiming bailment relation, chose a parking spaceand locked automobile, with no contact with any of lot owner's employees,although ticket stated that cars parked without validated tickets wouldbe towed away.
*569 Goins, Gammon, Baker & Robinson, Chattanooga, for plaintiff-appellee.
Bates Bryan, Chattanooga, for defendant-appellant.
OPINION
W. M. LEECH, Special Justice.
Pioneer Parking Lot, Inc. has appealed from a judgment entered in theCircuit Court of Hamilton County awarding Bobby Joe Rhodes $2,263.00 asdamages for the theft of his automobile from a parking lot operated byappellant. Appeal was made direct to this Court pursuant to s 16--408 T.C.A.,because the case was finally determined in the lower court by a 'methodnot involving review or determination of the facts.'
Appellant operates a parking lot located on Chestnut Street in Chattanooga,Tennessee of the type commonly known as a 'self-service Park & lock'operation. The ticket received by appellee when he parked his car containedthe following language:
'NOTICE
THIS CONTRACT LIMITS OUR LIABILITY--READ IT
WE RENT SPACE ONLY. No bailment is created and we are not responsible*570 for loss of or damage to, car or contents. This ticket is sold subjectto space being available and is not transferable.' A sign posted on thelot described the parking procedure as follows:
'SELF SERVICE PARK & LOCK
1. Buy ticket before Parking
2. Place Ticket on Dash
3. Park & Lock Car
CARS WITHOUT VALIDATED TICKET WILL BE TOWED AWAY'
There are no restrictions or controls over entry or departure of vehiclesor people to and from the parking lot. Moreover, there has never been anyattendant to service or look after this lot. Although there is but oneentrance which is also the exit, there are no cashiers on this lot.
On October 8, 1969 at about 12:00 o'clock noon, the plaintiff drovehis 1968 Chevrolet Camaro onto the defendant's parking lot. At the entranceto this parking lot there is a ticket meter. Plaintiff placed fifty centsin the meter and the meter returned to him the previously set out ticket.Plaintiff then drove his car further into the lot and without any directionor supervision parked it himself; removed the keys from the ignition; placedhis ticket on the dash in accordance with the instructions; and lockedhis car and left the lot keeping his keys himself. Subsequently, plaintiffreturned to the parking lot to find that his car had been stolen. His carwas later found in a stripped condition and as a result he brought thissuit to recover the value of his car.
The trial judge found that the stipulated facts made out a bailor-baileerelationship between plaintiff and defendant and that plaintiff was entitledto recover the value of the car.
The only issue before this Court is whether the relationship betweenplaintiff and defendant constituted a bailment, so as to permit plaintiffto recover damages for the failure of defendant to redeliver plaintiff'scar on demand.
[1] A bailment is the delivery of personalty to another for a particularpurpose or on mere deposit, on a contract express or implied, that afterthe purpose has been fulfilled, it shall be redelivered to the person whodelivered it, or otherwise dealt with according to his direction or keptuntil he reclaims it. See, e.g., Jackson v. Metropolitan Government ofNashville, 483 S.W.2d 92 (Tenn.1972).
[2] The creation of a bailment in the absence of an express contractrequires that possession and control over the subject matter pass fromthe bailor to the bailee. In order to constitute a sufficient deliveryof the subject matter there must be a full transfer, either actual or constructive,of the property to the bailee so as to exclude it from the possession ofthe owner and all other persons and give to the bailee, for the time being,the sole custody and control thereof. See Jackson v. Metropolitan Governmentof Nashville, supra, Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d 20 (1969);Old Hickory Parking Corp. v. Alloway, 26 Tenn.App. 683, 177 S.W.2d 23 (1944).See generally, 8 Am.Jur.2d 960--61.
[3] In parking lot and parking garage situations, a bailment is createdwhere the operator of the lot or garage has knowingly and voluntarily assumedcontrol, possession, or custody of the motor vehicle; if he has not doneso, there may be a mere license to park or a lease of parking space. See,e.g., Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543 (1943); SoutheasternFair Association v. Ford, 64 Ga.App. 871, 14 S.E.2d 139 (1941). In OldHickory Parking Corp. v. Alloway, supra, the court found a bailment wherepossession of the vehicle was actually surrendered to an attendant. Anotherfactor used to determine whether the operator of the lot has assumed controlis the surrender of the keys by the motorist to the operator. See Scruggsv. *571 Dennis, supra. Moreover, in the latter case the necessary possessionand control were found where the car could not be taken from the parkinggarage without the presentation of a parking ticket and payment of theparking fee to an attendant-cashier. In addition, in Jackson v. MetropolitanGovernment of Nashville, supra, the plaintiff was permitted to pass a barricadeand enter a parking lot on payment of a fee, and was then directed by anattendant into a parking spot, thus we found a bailment.
[4] In the case at bar, however, we find no evidence to justify a findingthat the plaintiff delivered his car into the custody of the defendant,nor do we find any act or conduct upon the defendant's part which wouldjustify a reasonable person believing that an obligation of bailment hadbeen assumed by the defendant. To the contrary, the facts show that theplaintiff at no time left his car in defendant's possession and control.Plaintiff paid the designated parking fee by depositing the money in theticket meter. He drove his car into the parking lot, undirected and unsupervisedby defendant, and chose a parking space within the lot suitable to himself.Plaintiff then parked and locked the car, retaining the key. At no timedid plaintiff come into contract with any of defendant's employees, norwas plaintiff required to contact an employee of the defendant on takinghis car from the parking lot. It necessarily follows, therefore, that therewas no bailor-bailee relationship established between the plaintiff andthe defendant.
However, plaintiff argues that the statement 'CARS WITHOUT VALIDATEDTICKETS WILL BE TOWED AWAY' would lead the average person to believe thatthere would be some supervision of the vehicle while it was parked in thelot, and that such was sufficient to create an implied contract of bailment.We disagree. The clear meaning of the statement is that cars in the parkinglot would be checked for the sole purpose of enforcing payment of the parkingfee and not that the parking lot operator was exercising dominion overall vehicles parked on the lot, especially where as in the case at barthe parking fee was paid. It results therefore that the judgment enteredin the trial court is reversed and the case is dismissed.
DYER, C.J., McCANLESS and FONES, JJ., and JENKINS, Special Justice,concur.
Tenn. 1973.
Rhodes v. Pioneer Parking Lot, Inc.,
END OF DOCUMENT
===========================
Note that when govt employees get free parking, then everyone in town must get free parking. In Onks vs City of Cookville, 2 lawyers ignored 150 parking tickets, since they lack personal service of process as required for all civil lawsuits. Cookville got greedy and sued for the 150 parking tickets, won in city court, won in county court, won in state court of appeals, but the lawyers called their bluff and appealed to state supreme court. Then Cookvile dropped their "winning" case and removed all 200 parking meters in town, giving everyone free parking, since judges get free parking. Onks vs Cookville is an "unpublished" opinion, which means it's bogus law that cannot be cited in other cases. That's why it's a good idea to telephone the lawyers on a case to get the real story. Default judgement is not allowed without personal jurisdiction of the court, which requires personal service of process of the lawsuit, by either hand-delivering the complaint to the person sued, or mailing to their home with signature receipt required. Govt is too lazy and greedy to follow these basic rules, as required in all courts.
City of Cookeville v. Onks
1993 WL 398472
Tenn.App.,1993.
Oct. 1, 1993. (Approx. 2 pages)
Only the Westlaw citation is currently available.
SEE COURT OF APPEALS RULES 11 AND 12
Court of Appeals of Tennessee, Western Section, at Nashville.
CITY OF COOKEVILLE, Tennessee, Plaintiff/Appellee,
v.
Ernest C. ONKS, Sr. and Jerry Burgess, Defendants/Appellants.
Oct. 1, 1993.
Appeal from the Putnam Circuit County, No. 01A01-9304-CV-00147; JohnTurnbull, Judge. AFFIRMED.
Everett H. Falk, Cookeville, for plaintiff-appellee.
Ronald Thurman, Cookeville, for defendants-appellants.
HIGHERS, Judge.
MEMORANDUM OPINION [FN1]
FN1. Rule 10 (Court of Appeals). Memorandum Opinion.--(b) The Court,with the concurrence of all judges participating in the case, may affirm,reverse or modify the actions of the trial court by memorandum opinionwhen a formal opinion would have no precedential value. When a case isdecided by memorandum opinion it shall be designated "MEMORANDUM OPINION,"shall not be published, and shall not be cited or relied on for any reasonin a subsequent unrelated case.
*1 E.C. Onks appeals from an order of the Circuit Court at Putnam Countydirecting him to pay $315.00 plus interest to the City of Cookeville fortwenty-one parking violations. [FN2]
FN2. Jerry Burgess appealed from an order of the Circuit Court at Cookevilledirecting him to pay $1,815.00 plus interest for 121 parking violations.Burgess, however, failed to file an appellate brief, and, we affirm thejudgment of the trial court as against him.
Over a period of approximately three years Onks parked vehicles in meteredspaces in the downtown area of Cookeville in violation of Cookeville CityCode, Title 9, Chapter 5, Section 9-508 on twenty-one (21) occasions forwhich he was given citations. When Onks did not pay the citations, warrantswere issued on each of the alleged parking violations. Section 9-508 provides:
9-508. Unlawful parking in parking meter spaces. It shall be unlawfulfor the owner or operator of any vehicle to park or allow his vehicle tobe parked in a parking space regulated by a parking meter for more thanthe maximum period of time which can be purchased at one (1) time eventhough by "feeding" the meter he keeps it from indicating unlawful parking.
Furthermore, no owner or operator of any vehicle shall park or allowhis vehicle to be parked in such a space when the parking meter thereforindicates unlawful parking whether such indication is the result of a failureto deposit a coin and/or operate the lever or other actuating device onthe meter or the result of the automatic operation of the meter followingthe expiration of the lawful parking time subsequent to depositing a cointherein at the time the vehicle was parked.
At the hearing on the warrants, Onks contended that all parking ordinancesof the City of Cookeville were invalid and unconstitutional under Article11, Section 8 of the Tennessee Constitution and under the Fourteenth Amendmentto the United States Constitution because the city had reserved some parkingspaces on city streets to citizens, entities, and government officialswhile enforcing overtime parking violations against him. The factual basisof Onks' defense is that the City of Cookeville granted special parkingprivileges for various individuals and businesses by erecting reservedparking signs and specifying loading zones in the downtown area of Cookeville.Anyone may submit an application for special parking to the city managerof Cookeville who decides whether or not to grant such privilege. The citymanager relies on Cookeville City Code, Title 9, Chapter 1, Section 9-121and Chapter 5, Section 9-517 for authority to regulate parking and to designateparking spaces as reserved and as loading zones. Section 9-517 providesthat the recipients of such special parking privileges must pay an annualfee of $50.00 to the City of Cookeville. Onks maintains that leasing orrenting parking spaces on public streets to private individuals for a feeinvalidates the City of Cookeville's parking ordinances, including Section9-508, under the Equal Protection Clause of the Fourteenth Amendment ofthe United States Constitution as well as guarantees provided under theTennessee Constitution.
Any constitutional challenge to the City of Cookeville's authorityto grant special parking privileges pursuant to Sections 9-121 and 9-517would not affect the constitutional validity of Section 9-508, the ordinancewith which Onks is charged with violating. Onks was not ticketed for parkingin a reserved parking space. Onks has never applied for or been deniedspecial parking privileges. Onks does not argue that the City of Cookevillelacks authority to install parking meters. Onks does not argue that theCity of Cookeville is discriminatorily enforcing Section 9-508 by ticketinga certain class of persons who park in metered parking spaces in violationof Section 9-508, including himself, but failing to ticket other persons.Pursuant to its charter authority, the City of Cookeville has by ordinanceadopted a city code which incorporates a section on motor vehicles andtraffic, including provisions on parking. See Ordinance 663, City CodeTitle 9, Chapter 1, Section 9-121; Chapter 5, Sections 9-506 through 508,511, and 517. Ordinance 663, which adopts and enacts a codification andrevision of the Ordinance of the City of Cookeville, specifically providesin Section 7 that "each section of the City Code, including the codes andordinances adopted by reference, are to be separable and severable andthe invalidity of any section, part, paragraph, sentence, phrase or wordand the city code shall not affect the validity of any other part of saidcode, and only any part declared to be invalid by a court of competentjurisdiction shall be deleted therefrom." The principle of elision or ofsevering invalid and inoperative portions of legislation in order to preserveits constitutional validity and to carry out the legislative intent isa familiar one in Tennessee. Citicorp Financial Services Corp. v. Adams,674 S.W.2d 705, 710 (Tenn.1984). The inclusion of a severability clausein a statute has been held to evidence an intent on the part of the GeneralAssembly to have the valid parts of the statute in force if some otherportion of the statute has been declared unconstitutional. Lowe's Companies,Inc. v. Cardwell, 813 S.W.2d 428, 431 (Tenn.1991). These principles oflaw are equally applicable to the the legislation at bar. Therefore, anyalleged unconstitutionality or discriminatory enforcement of Sections 9-121or 9-517 would not, as Onks argues, invalidate Section 9-508.
*2 Accordingly, the judgment of the trial court is affirmed. Costsare assessed to Onks.
TOMLIN, P.J. (W.S.), and FARMER, J., concur.
Tenn.App.,1993.
City of Cookeville v. Onks
END OF DOCUMENT
================================
Allen v. Hyatt Regency-Nashville Hotel
668 S.W.2d 286
Tenn.,1984.
March 26, 1984. Rehearing Denied April 23, 1984. (Approx. 6 pages)
Supreme Court of Tennessee,
at Nashville.
Betty J. ALLEN, Plaintiff-Appellee,
v.
HYATT REGENCY--NASHVILLE HOTEL, Defendant-Appellant.
March 26, 1984.
Rehearing Denied April 23, 1984.
In suit by hotel guest against the hotel, the Equity Court, DavidsonCounty, C. Allen High, Chancellor, found that bailment had been createdwhen the owner parked and locked vehicle. On appeal by the hotel, the SupremeCourt, Harbison, J., held that where the vehicle was not driven into unattendedor open parking area but, rather, was driven into enclosed, indoor, attended,commercial garage which not only had attendant controlling exit but regularsecurity personnel to patrol the premises for safety, bailment for hirewas created, and, upon proof of nondelivery, guest was entitled to statutorypresumption of negligence.
Affirmed and remanded.
Drowota, J., dissented and filed opinion in which Brock, J., joined.
West Headnotes
KeyCite this headnote
48A Automobiles
48AVIII Garage Keepers, Repairmen, Auto Liverymen, and FillingStations
48Ak369 Storage of Vehicles; Parking Facilities
48Ak372 Injury to or Loss of Vehicleor Contents
48Ak372(3) Actions
48Ak372(4) k.Evidence and Fact Questions.
Where hotel guest's vehicle was not driven into unattended or open parkingarea but, rather, was driven into enclosed, indoor, attended, commercialgarage which not only had attendant controlling exit but regular securitypersonnel to patrol the premises for safety, bailment for hire was created,and, upon proof of nondelivery, guest was entitled to statutory presumptionof negligence. T.C.A. § 24-5-111.
*286 Laurence M. Papel, Taylor, Schlater, Lassiter, Tidwell & Trentham,Nashville, for plaintiff-appellee.
*287 James R. Kniffen, Barnett & Alagia, Nashville, for defendant-appellant.
James I. Vance Berry, Peter H. Curry, Nashville, amicus curiae AllrightParking, Inc. and Central Parking, Inc.
OPINION
HARBISON, Justice.
In this case the Court is asked to consider the nature and extent ofthe liability of the operator of a commercial parking garage for theftof a vehicle during the absence of the owner. Both courts below, on thebasis of prior decisions from this state, held that a bailment was createdwhen the owner parked and locked his vehicle in a modern, indoor, multi-storygarage operated by appellant in conjunction with a large hotel in downtownNashville. We affirm.
There is almost no dispute as to the relevant facts. Appellant is theowner and operator of a modern high-rise hotel in Nashville fronting onthe south side of Union Street. Immediately to the rear, or south, of themain hotel building there is a multi-story parking garage with a singleentrance and a single exit to the west, on Seventh Avenue, North. As oneenters the parking garage at the street level, there is a large sign reading"Welcome to Hyatt Regency-Nashville." There is another Hyatt Regency signinside the garage at street level, together with a sign marked "Parking."The garage is available for parking by members of the general public aswell as guests of the hotel, and the public are invited to utilize it.
On the morning of February 12, 1981, appellee's husband, Edwin Allen,accompanied by two passengers, drove appellee's new 1981 automobile intothe parking garage. Neither Mr. Allen nor his passengers intended to registerat the hotel as a guest. Mr. Allen had parked in this particular garageon several occasions, however, testifying that he felt that the vehiclewould be safer in an attended garage than in an unattended outside loton the street.
The single entrance was controlled by a ticket machine. The singleexit was controlled by an attendant in a booth just opposite to the entranceand in full view thereof. Appellee's husband entered the garage at thestreet level and took a ticket which was automatically dispensed by themachine. The machine activated a barrier gate which rose and permittedMr. Allen to enter the garage. He drove to the fourth floor level, parkedthe vehicle, locked it, retained the ignition key, descended by elevatorto the street level and left the garage. When he returned several hourslater, the car was gone, and it has never been recovered. Mr. Allen reportedthe theft to the attendant at the exit booth, who stated, "Well, it didn'tcome out here." The attendant did not testify at the trial.
Mr. Allen then reported the theft to security personnel employed byappellant, and subsequently reported the loss to the police. Appellantregularly employed a number of security guards, who were dressed in a distinctiveuniform, two of whom were on duty most of the time. These guards patrolledthe hotel grounds and building as well as the garage and were instructedto make rounds through the garage, although not necessarily at specifiedintervals. One of the security guards told appellee's husband that earlierin the day he had received the following report:
"He said, 'It's a funny thing here. On my report here a lady calledme somewhere around nine-thirty or after and said that there was someonemessing with a car.' "
The guard told Mr. Allen that he closed his office and went up intothe garage to investigate, but reported that he did not find anything unusualor out of the ordinary.
Customers such as Mr. Allen, upon entering the garage, received a ticketfrom the dispensing machine. On one side of this ticket are instructionsto overnight guests to present the ticket to the front desk of the hotel.The other side contains instructions to the parker to keep the ticket and*288 that the ticket must be presented to the cashier upon leaving theparking area. The ticket states that charges are made for the use of parkingspace only and that appellant assumes no responsibility for loss throughfire, theft, collision or otherwise to the car or its contents. The ticketstates that cars are parked at the risk of the owner, and parkers are instructedto lock their vehicles. [FN1] The record indicates that these tickets aregiven solely for the purpose of measuring the time during which a vehicleis parked in order that the attendant may collect the proper charge, andthat they are not given for the purpose of identifying particular vehicles.
FN1. It is not insisted that the language of the ticket is sufficientto exonerate appellant, since the customer is not shown to have read itor to have had it called to his attention. See Savoy Hotel Corp. v. Sparks,57 Tenn.App. 537, 421 S.W.2d 98 (1967).
The question of the legal relationship between the operator of a vehiclewhich is being parked and the operator of parking establishments has beenthe subject of frequent litigation in this state and elsewhere. The authoritiesare in conflict, and the results of the cases are varied. [FN2]
FN2. See Annot. 13 A.L.R.4th 359 (1982); 7 A.L.R.3d 927 (1966).
It is legally and theoretically possible, of course, for various legalrelationships to be created by the parties, ranging from the traditionalconcepts of lessor-lessee, licensor-licensee, bailor-bailee, to that describedin some jurisdictions as a "deposit." [FN3] Several courts have found difficultywith the traditional criteria of bailment in analyzing park-and-lock cases.One of the leading cases is McGlynn v. Parking Authority of City of Newark,86 N.J. 551, 432 A.2d 99 (1981). There the Supreme Court of New Jerseyreviewed numerous decisions from within its own state and from other jurisdictions,and it concluded that it was more "useful and straightforward" to considerthe possession and control elements in defining the duty of care of a garageoperator to its customers than to consider them in the context of bailment.That Court concluded that the "realities" of the relationship between theparties gave rise to a duty of reasonable care on the part of operatorsof parking garages and parking lots. It further found that a garage owneris usually better situated to protect a parked car and to distribute thecost of protection through parking fees. It also emphasized that ownersusually expect to receive their vehicles back in the same condition inwhich they left them and that the imposition of a duty to protect parkedvehicles and their contents was consistent with that expectation. The Courtwent further and stated that since the owner is ordinarily absent whentheft or damage occurs, the obligation to come forward with affirmativeevidence of negligence could impose a difficult, if not insurmountable,burden upon him. After considering various policy considerations, whichit acknowledged be the same as those recognized by courts holding thata bailment is created, the New Jersey Court indulged or authorized a presumptionof negligence from proof of damage to a car parked in an enclosed garage.432 A.2d at 105. [FN4]
FN3. See Gauthier v. Allright New Orleans, Inc., 417 So.2d 375 (La.App.1982).
FN4. Other courts, declining to find a bailment, have onerated the customerwith proving negligence. E.g., Central Parking System v. Miller, 586 S.W.2d262 (Ky.1979).
Although the New Jersey Court concluded that a more flexible and comprehensiveapproach could be achieved outside of traditional property concepts, Tennesseecourts generally have analyzed cases such as this in terms of sufficiencyof the evidence to create a bailment for hire by implication. We believethat this continues to be the majority view and the most satisfactory andrealistic approach to the problem, unless the parties clearly by theirconduct or by express contract create some other relationship.
The subject has been discussed in numerous previous decisions in thisstate. One of the leading cases is Dispeker v. New Southern Hotel Co.,213 Tenn. 378, 373 *289 S.W.2d 904 (1963). In that case the guest at ahotel delivered his vehicle to a bellboy who took possession of it andparked it in a lot adjoining the hotel building. The owner kept the keys,but the car apparently was capable of being started without the ignitionkey. The owner apparently had told the attendant how to so operate it.Later the employee took the vehicle for his own purposes and damaged it.Under these circumstances the Court held that a bailment for hire had beencreated and that upon proof of misdelivery of the vehicle the bailee wasliable to the customer.
In the subsequent case of Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d20 (1969), upon facts practically identical to those of the instant case,the Court again held that an implied bailment contract had been createdbetween a customer who parked and locked his vehicle in a garage. Uponentry he received a ticket dispensed by a machine, drove his automobileto the underground third level of the garage and parked. He retained hisignition key, but when he returned to retrieve the automobile in the afternoonit had disappeared. It was recovered more than two weeks later and returnedto the owner in a damaged condition.
In that case the operator of the garage had several attendants on duty,but the attendants did not ordinarily operate the parked vehicles, as inthe instant case. [FN5]
FN5. Appellant's employees occasionally parked the vehicles of patronswho were handicapped and under other unusual circumstances.
Although the Court recognized that there were some factual differencesbetween the Scruggs case and that of Dispeker v. New Southern Hotel Co.,supra, it concluded that a bailment had been created when the owner parkedhis vehicle for custody and safe keeping in the parking garage, where therewas limited access and where the patron had to present a ticket to an attendantupon leaving the premises.
A bailment relationship was also found in Jackson v. Metropolitan Governmentof Nashville, 483 S.W.2d 92 (Tenn.1972), when faculty members of a highschool conducted an automobile parking operation for profit upon the highschool campus. A customer who parked his vehicle there was allowed recoveryfor theft, even though he had parked the vehicle himself after paying afee, had locked the vehicle and had kept the keys.
On the contrary, in the case of Rhodes v. Pioneer Parking Lot, Inc.,501 S.W.2d 569 (Tenn.1973), a bailment was found not to exist when theowner left his vehicle in an open parking lot which was wholly unattendedand where he simply inserted coins into a meter, received a ticket, thenparked the vehicle himself and locked it.
Denying recovery, the Court said:
"In the case at bar, however, we find no evidence to justify a findingthat the plaintiff delivered his car into the custody of the defendant,nor do we find any act or conduct upon the defendant's part which wouldjustify a reasonable person believing that an obligation of bailment hadbeen assumed by the defendant." 501 S.W.2d at 571.
In the instant case, appellee's vehicle was not driven into an unattendedor open parking area. Rather it was driven into an enclosed, indoor, attendedcommercial garage which not only had an attendant controlling the exitbut regular security personnel to patrol the premises for safety.
Under these facts we are of the opinion that the courts below correctlyconcluded that a bailment for hire had been created, and that upon proofof nondelivery appellee was entitled to the statutory presumption of negligenceprovided in T.C.A. § 24-5-111.
We recognize that there is always a question as to whether there hasbeen sufficient delivery of possession and control to create a bailmentwhen the owner locks a vehicle and keeps the keys. Nevertheless, the realitiesof the situation are that the operator of the garage is, in circumstanceslike those shown in this record, expected to *290 provide attendants andprotection. In practicality the operator does assume control and custodyof the vehicles parked, limiting access thereto and requiring the presentationof a ticket upon exit. As stated previously, the attendant employed byappellant did not testify, but he told appellee's husband that the vehicledid not come out of the garage through the exit which he controlled. Thistestimony was not amplified, but the attendant obviously must have beenin error or else must have been inattentive or away from his station. Therecord clearly shows that there was no other exit from which the vehiclecould have been driven.
Appellant made no effort to rebut the presumption created by statutein this state (which is similar to presumptions indulged by courts in someother jurisdictions not having such statutes). While the plaintiff didnot prove positive acts of negligence on the part of appellant, the recorddoes show that some improper activity or tampering with vehicles had beencalled to the attention of security personnel earlier in the day of thetheft in question, and that appellee's new vehicle had been removed fromthe garage by some person or persons unknown, either driving past an inattentiveattendant or one who had absented himself from his post, there being simplyno other way in which the vehicle could have been driven out of the garage.
Under the facts and circumstances of this case, we are not inclinedto depart from prior decisions or to place the risk of loss upon the consumingpublic as against the operators of commercial parking establishments suchas that conducted by appellant. We recognize that park-and-lock situationsarise under many and varied factual circumstances. It is difficult to laydown one rule of law which will apply to all cases. The expectations ofthe parties and their conduct can cause differing legal relationships toarise, with consequent different legal results. We do not find the factsof the present case, however, to be at variance with the legal requirementsof the traditional concept of a bailment for hire. In our opinion it amountedto more than a mere license or hiring of a space to park a vehicle, unaccompaniedby any expectation of protection or other obligation upon the operatorof the establishment.
The judgment of the courts below is affirmed at the cost of appellant.The cause will be remanded to the trial court for any further proceedingswhich may be necessary.
FONES, C.J., and COOPER, J., concur.
DROWOTA, J., files dissenting opinion, joined therein by BROCK, J.
DROWOTA, Justice, dissenting.
In this case we are asked to consider the nature and extent of liabilityof the operator of a commercial "park and lock" parking garage. In makingthis determination, we must look to the legal relationship between theoperator of the vehicle and the operator of the parking facility. The majorityopinion holds that a bailment contract has been created, and upon proofof non-delivery Plaintiff is entitled to the statutory presumption of negligenceprovided in T.C.A. § 24-5-111. I disagree, for I find no bailmentexisted and therefore the Plaintiff does not receive the benefit of thepresumption. Consequently, the Plaintiff had the duty to prove affirmativelythe negligence of the operator of the parking facility and this Plaintifffailed to do.
The majority opinion states that "courts have found difficulty withthe traditional criteria of bailment in analyzing park and lock cases."The majority discusses the case of McGlynn v. Parking Authority of Cityof Newark, 86 N.J. 551, 432 A.2d 99 (1981), which suggests that bailmentis an outmoded concept for analyzing parking lot and garage cases. In Garlockv. Multiple Parking Services, Inc., 103 Misc.2d 943, 427 N.Y.S.2d 670,677, 13 A.L.R.4th, 428 (1980), the court stated that "the 'bailment theory'as a basis for recovery in parking lot cases is no longer appropriate."That court concluded that since the concept of bailment is no longer aviable theory in application to a very real modern problem *291 that theproper standard to be followed in such cases is "reasonable care underthe circumstances whereby foreseeability shall be a measure of liability."Id. 427 N.Y.S.2d at 678.
Even though some courts now suggest that the theory of bailment isan archaic and inappropriate theory upon which to base liability in modernpark and lock cases, the majority opinion states that "Tennessee courtsgenerally have analyzed cases such as this in terms of sufficiency of theevidence to create a bailment for hire by implication," and concludes thatthis is "the most satisfactory and realistic approach to the problem."I do not disagree with the longstanding use of the bailment analysis inthis type of case. I do disagree, however, with the majority's conclusionthat a bailment for hire has been created in this case.
The record shows that upon entering this parking garage a ticket, showingtime of entry, is automatically dispensed by a machine. The ticket statesthat charges are made for the use of a parking space only and that thegarage assumes no responsibility for loss to the car or its contents. Theticket further states that cars are parked at the risk of the owner, andparkers are instructed to lock their vehicles. The majority opinion pointsout that it is not insisted that this language on the ticket is sufficientto exonerate the garage, since the customer is not shown to have read itor to have had it called to his attention. Savoy Hotel Corp. v. Sparks,57 Tenn.App. 537, 421 S.W.2d 98 (1967). The ticket in no way identifiesthe vehicle, it is given solely for the purpose of measuring the lengthof time during which the vehicle is parked in order that a proper chargemay be made.
In this case Mr. Allen, without any direction or supervision, parkedhis car, removed his keys, and locked the car and left the parking garagehaving retained his ignition key. The presentation of a ticket upon exitis for the sole purpose of allowing the cashier to collect the proper charge.The cashier is not required to be on duty at all times. When no cashieris present, the exit gate is opened and no payment is required. [FN1] Asthe majority opinion states, the ticket is "not given for the purpose ofidentifying particular vehicles." The ticket functioned solely as a sourceof fee computation, not of vehicle identification.
FN1. Between one or two in the morning and six or seven a.m., the garageis entirely open without a cashier to collect parking fees. During theday if the cashier leaves his or her post on a break, the exit gate isopened and the vehicle owner may exit without payment.
The majority opinion states: "[W]e do not find the facts of the presentcase to be at variance with the legal requirements of the concept of abailment for hire." I must disagree, for I feel the facts of the presentcase are clearly at variance with what I consider to be the legal requirementsof the traditional concept of a bailment for hire.
Bailment has been defined by this Court in the following manner:
The creation of a bailment in the absence of an express contract requiresthat possession and control over the subject matter pass from the bailorto the bailee. In order to constitute a sufficient delivery of the subjectmatter there must be a full transfer, either actual or constructive, ofthe property to the bailee so as to exclude it from the possession of theowner and all other persons and give to the bailee, for the time being,the sole custody and control thereof. See Jackson v. Metropolitan Governmentof Nashville, supra, Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d 20 (1969);Old Hickory Parking Corp. v. Alloway, 26 Tenn.App. 683, 177 S.W.2d 23 (1944).See generally, 8 Am.Jur.2d 960-61.
In parking lot and parking garage situations, a bailment is createdwhere the operator of the lot or garage has knowingly and voluntarily assumedcontrol, possession, or custody of the motor vehicle; if he has not doneso, there may be a mere license to park or a lease of parking space. See,e.g., Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543 (1943); SoutheasternFair Association v. Ford, 64 Ga.App. 871, 14 S.E.2d 139 (1941).
*292 Rhodes v. Pioneer Parking Lot, Inc., 501 S.W.2d 569, 570 (Tenn.1973).
From its earliest origins, the most distinguishing factor identifyinga bailment has been delivery. Our earliest decisions also recognize acceptanceas a necessary factor, requiring that possession and control of the propertypass from bailor to bailee, to the exclusion of control by others. Thetest thus becomes whether the operator of the vehicle has made such a deliveryto the operator of the parking facility as to amount to a relinquishmentof his exclusive possession, control, and dominion over the vehicle sothat the latter can exclude it from the possession of all others. If so,a bailment has been created.
When the automobile began replacing the horse and buggy, our courtsallowed bailment law to carry over and govern the parking of vehicles.In cases such as Old Hickory Parking Corp. v. Alloway, 177 S.W.2d 23 (Tenn.App.1943),and Savoy Hotel v. Sparks, 421 S.W.2d 98 (Tenn.App.1967), where the operatorof the vehicle left his vehicle with an attendant and left the keys forthe attendant to move the vehicle as he wished, the bailment relationshipwas evident for we had a clear delivery, acceptance of possession, control,and exercise of dominion over the vehicle--all the traditional elementsof a bailment. In Dispeker v. New Southern Hotel Company, 213 Tenn. 378,373 S.W.2d 904 (1963), a bellboy parked plaintiff's car, plaintiff retainedthe keys but explained to the bellboy that the car could be operated withoutthe key, and apparently showed him how to operate it. The bellboy wentoff duty, then returned and stole the car. Once again, the traditionalelements of delivery and control were present.
These cases involving parking attendants and personalized service havecaused us no problems. The problem arises in this modern era of automatedparking, when courts have attempted to expand the limits of existing areasof the law to encompass technological and commercial advances. Such isthe case of Scruggs v. Dennis, 440 S.W.2d 20 (Tenn.1969), relied upon inthe majority opinion. In Scruggs, as in this case, the entire operationis automated, with the exception of payment upon departure. The operationbears little, if any, resemblance to the circumstances found in Old HickoryParking Corp., Savoy Hotel, and Dispeker. Yet the Court in Scruggs, inquoting extensively from the Dispeker opinion, states that "There are someminute differences of fact ..." Id., 440 S.W.2d at 22. As pointed out above,the differences of fact in Dispeker are not minute or so similar as theScruggs court would suggest. Delivery, custody and control are clearlypresent in Dispeker. I fail to find such delivery, custody and controlin Scruggs or in the case at bar. In Dispeker, the vehicle was actuallytaken from the owner by an attendant. I believe the Scruggs court and themajority opinion today attempt to apply bailment law in situations wherethere is not a true bailment relationship.
The Scruggs opinion was recently cited in a dissenting opinion in Kentuckywhere the plaintiff entered a six-story, self-parking garage in downtownLouisville. The only employee on duty was the attendant who collected themoney from the driver upon exiting. The garage was patrolled three timesdaily by garage personnel. The Kentucky Supreme Court chose not to followthe Scruggs rationale and held "when a person parks his automobile in agarage by receiving a ticket from an automated machine, choosing his ownspace and taking his keys with him, the garage is not a bailee and is notliable in the absence of negligence on its part." Central Parking Systemv. Miller, 586 S.W.2d 262, 263 (Ky.1979).
The difficulty in these types of cases seems to arise when the traditionalelements of bailment are missing and courts must determine whether thereis an implied bailment created by implication from the surrounding circumstancesand the conduct of the parties. In Jackson v. Metropolitan Government ofNashville, 483 S.W.2d 92 (Tenn.1972), the Court based its opinion on thefinding that the Defendants, by their *293 conduct, "impliedly promisedto use ordinary and reasonable care to preserve the property during theterm of the bailment and to return the bail property to complainant ondemand or to his order." Id., at 95.
The majority opinion "recognize[s] that there is always a questionas to whether there has been sufficient delivery of possession and controlto create a bailment when the owner locks a vehicle and keeps the keys."The majority finds that "in practicality the operator does assume controland custody of the vehicles parked, limiting access thereto and requiringthe presentation of a ticket upon exit." The majority opinion, as did theScruggs court, finds custody and control implied because of the limitedaccess and because "the presentation of a ticket upon exit" is required.I cannot agree with this analysis as creating a bailment situation. I donot believe that based upon the fact that a ticket was required to be presentedupon leaving, that this factor created a proper basis upon which to finda bailment relationship. The ticket did not identify the vehicle or theoperator of the vehicle, as do most bailment receipts. The cashier wasnot performing the traditional bailee role or identifying and returninga particular article, but instead was merely computing the amount owedand accepting payment due for use of a parking space. I do not believethe Defendant exercised such possession and control over Plaintiff's automobileas is necessary in an implied bailment.
As recently stated in Merritt v. Nationwide Warehouse Co., Ltd., 605S.W.2d 250, 253 (Tenn.App.1980), "Such full delivery must be made as willentitle the bailee to exclude the possession of all other persons and puthim in sole custody and control." The full transfer of possession and control,necessary to constitute delivery, should not be found to exist simply bythe presentation of a ticket upon exit. In the case at bar, I find no suchdelivery and relinquishment of exclusive possession and control as to createa bailment. Plaintiff parked his car, locked it and retained the key. CertainlyDefendant cannot be said to have sole custody of Plaintiff's vehicle, forDefendant could not move it, did not know to whom it belonged, and didnot know when it would be reclaimed or by whom. Anyone who manually obtaineda ticket from the dispenser could drive out with any vehicle he was capableof operating. Also, a cashier was not always on duty. When on duty, solong as the parking fee was paid--by what means could the Defendant reasonablyexercise control? The necessary delivery and relinquishment of controlby the Plaintiff, the very basis upon which the bailment theory was developed,is missing.
We should realize that the circumstances upon which the principlesof bailment law were established and developed are not always applicableto the operation of the modern day automated parking facility. The elementof delivery, of sole custody and control are lacking in this case.
I am authorized to state that BROCK, J., joins with me in this dissent.
Tenn.,1984.
Allen v. Hyatt Regency-Nashville Hotel
END OF DOCUMENT
===========================
State v. Bowling
867 S.W.2d 338
Tenn.Cr.App.,1993.
Jan. 21, 1993. No Permission to Appeal Applied for to the Supreme Court.(Approx. 6 pages)
Court of Criminal Appeals of Tennessee,
at Nashville.
STATE of Tennessee, Appellant,
v.
David D. BOWLING, Appellee.
Jan. 21, 1993.
No Permission to Appeal Applied
for to the Supreme Court.
In prosecution respecting hit and run accident resulting in death ofvictim, defendant moved to suppress evidence. The Criminal Court, DavidsonCounty, Walter C. Kurtz, J., granted motion. State appealed. The Courtof Criminal Appeals, Peay, J., held that: (1) officer's actions, of gettingon his hands and knees with his head almost touching ground and lookinginto garage through partially raised garage door, was unconstitutionalwarrantless "search"; (2) inaccuracies in search warrant affidavit didnot render search warrant invalid; and (3) search warrant affidavit, absentinformation obtained from unconstitutional search of garage, was insufficientto support probable cause for search respecting vehicle suspected to beinvolved in hit and run accident.
Affirmed.
West Headnotes
[1] KeyCite this headnote
349 Searches and Seizures
349I In General
349k13 What Constitutes Search or Seizure
349k17 k. Interior of Premises, Viewfrom Outside.
Officer's actions, of getting on his hands and knees with his head almosttouching ground and looking into garage through garage door that had beenraised one and a half feet to allegedly enable dog to come and go fromgarage, constituted warrantless "search" which violated Fourth Amendmentand state constitutional provision governing searches and seizures. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[2] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.
Touchstone of unreasonable search and seizure analysis is whether personhas constitutionally protected reasonable expectation of privacy. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[3] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.
Neither Fourth Amendment nor state constitutional provision governingsearches and seizures protects what citizen knowingly exposes to public.U.S.C.A. Const.Amend. 4; Const. Art. 1, § 7.
[4] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.
For purposes of searches and seizures analysis under Federal and StateConstitutions, that which citizen knowingly exposes to public is that inwhich he or she has not manifested subjective expectation of privacy. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[5] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k27 k. Curtilage or Open Fields;Yards and Outbuildings.
For purposes of constitutional search and seizure analysis, societyhas recognized that resident of home usually has reasonable expectationof privacy in garage. U.S.C.A. Const.Amend. 4; Const. Art. 1, § 7.
[6] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.
For purposes of constitutional search and seizure analysis, in areaswhere reasonable expectation of privacy is usually accorded, officer ispermitted same license to intrude as reasonably respectful citizen. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[7] KeyCite this headnote
349 Searches and Seizures
349II Warrants
349k112 k. False, Inaccurate or Perjured Information;Disclosure.
Inaccuracies in search warrant affidavit respecting where vehicle suspectedto be involved in hit and run accident was parked and when parking ticketwas received, which were reckless misrepresentations, did not render searchwarrant invalid; there was no intent to deceive court, and inaccuracieswere not reckless misrepresentations of material fact. U.S.C.A. Const.Amend.4; Const. Art. 1, § 7.
[8] KeyCite this headnote
349 Searches and Seizures
349II Warrants
349k115 Competency of Information; Hearsay
349k120 k. Legality of Information.
Search warrant affidavit, absent information obtained from police officer'sunconstitutional search of garage, was insufficient to support probablecause for search respecting vehicle suspected to be involved in hit andrun accident; affidavit failed to indicate basis of informant's knowledge,as it made no mention of how informant obtained information. U.S.C.A. Const.Amend.4; Const. Art. 1, § 7.
*339 Charles W. Burson, Atty. Gen. and Reporter, Kathy M. Principe,Asst. Atty. Gen., Victor S. Johnson, III, Dist. Atty. Gen., James Walsh,Asst. Dist. Atty. Gen., Nashville, for appellant.
David E. High, Nashville, for appellee.
OPINION
PEAY, Judge.
This case is an appeal by the State of Tennessee pursuant to T.R.A.P.3(c)(1) from an order granting the defendant's motion to suppress certainevidence.
Essentially four questions are raised on appeal. First, whether OfficerPoteete's actions of getting down on his hands and knees with his headvery near to the ground, and looking into the garage violated the defendant'sreasonable expectation of privacy, constituting a warrantless search inviolation of the Fourth Amendment of the United States Constitution andArticle I, Section 7 of the Tennessee Constitution; second, whether thesearch warrant affidavit contained reckless misrepresentations of materialfacts; third, whether the search warrant affidavit, absent the informationattained from the contested search, would be sufficient on its face torender probable cause; and fourth, whether the appeal in this case wastimely filed and, therefore, should not be dismissed. Having reviewed thesematters, we conclude that the appeal should not be dismissed, and we affirmthe lower court's action.
To best analyze and understand the matters raised, we must first laya factual foundation. On March 16, 1990, Officer Lloyd Poteete, a hit andrun accident investigator for the Metropolitan Nashville Police Department,responded to a hit and run fatality on Murfreesboro Road in Nashville,Tennessee. The victim was walking on the shoulder of the road when shewas struck from behind and killed by a vehicle which fled the scene. Atthe scene of the incident, several pieces of plastic and debris commonto the type used on the front of vehicles and automobile grills were recovered.One of the recovered pieces was a Ford logo. A witness at the scene alsoindicated that the vehicle involved in the incident was a tan or lightbrown colored vehicle. After further investigation Officer Poteete ascertainedthat the recovered pieces were from the grill of a 1983 to 1986 Ford truckor Bronco.
Other than this information, there was little with which to proceed.However, on March 19, 1990, an anonymous individual telephoned the NashvillePolice Department and stated that the defendant had been involved in theincident which had occurred on March 16, 1990. The informant added thatthe defendant had come home late at night driving a dark tan or brown FordBronco truck which had front end damage on it and that the truck was pulledbehind a house on Springmont Drive. Officer Poteete followed up on thisinformation, learning that the defendant had received a traffic ticketwhile driving the 1984 Ford truck and that the defendant's address waslisted as 325 Overhill Drive in Old Hickory, Wilson County, Tennessee.Overhill Drive is located in a subdivision named "Springmont".
Pursuant to such information Officer Poteete, Metro Officer Ron Anderson,and Wilson *340 County Deputy Ricky Knight proceeded to 325 Overhill Drivein the Springmont Subdivision. At this address they found a split-levelhouse with a two car garage directly under the main living floor. A largedriveway proceeded along the right side of the house and ended at two solidgarage doors on this side of the house. Around the back of the home, adoor with a window led into the garage. Also on the back of the house wasa patio porch with another door which led into the house.
Upon arrival Officer Poteete knocked on the front door of the homewhile Officers Anderson and Knight went around to the back door. OfficerPoteete continued to knock on the front door and received no response whileOfficer Knight knocked on the back door and also received no response.Officer Anderson, making his way back to the front of the house, stoppedand knocked on the door leading into the garage. As Officer Anderson knocked,he glanced through the window in the door and noticed a brown Bronco truckon the far side of the garage. Although he could not see the front endof the truck, he could see that the hood was slightly buckled, which indicatedto him that there might be some damage to the front of the Bronco.
Officer Poteete walked away from the front door and was making hisway around the side of the house towards the back when Officer Andersonnotified him that he had observed a brown-colored Bronco in the garage.For some reason, however, Officer Anderson did not mention to Officer Poteetethat he had observed the hood's being slightly buckled. At this time theofficers were standing in the driveway in front of the two solid garagedoors. While the garage doors have no windows, the door closest to theback yard and farthest from the truck had been left open approximatelyone and a half feet allegedly for the purpose of allowing the dog to comeand go from the garage. Officer Poteete then got down on his hands andknees with his head very near to the ground and looked into the garage.>From this position, he was able to see that the Ford Bronco had sustainedfront end damage.
Subsequently, a search warrant was obtained based upon an affidavit,the pertinent parts of which include:
Affiant [Officer Poteete] is an officer of the Metropolitan Nashville,Tennessee, Police Department, and is currently assigned to the TrafficDivision as a Hit & Run investigator. ... On Friday, March 16, 1990,affiant responded to the scene of a fatal hit and run accident which occurredat 1132 Murfreesboro Road, in Nashville, Davidson County, Tennessee, atapproximately 1:30 A.M. ... On Monday, March 19, 1990, Officer Earl Watsonof the Metropolitan Nashville Police Department, received an anonymoustelephone call advising him of the location of a vehicle possibly involvedin the fatal accident. From information received, Officer Watson advisedaffiant that a "David Bowling" had returned to his residence, located on"Springmont," at approximately 2:00 a.m. on the morning of the accident,and parked his vehicle, described as being possibly a brown Ford Bronco,in the garage of the residence, where it had not been moved again sincethat time. Further, the caller indicated that the vehicle appeared to havesustained damage to the grill area. Through his investigation, affiantdetermined that a "Springmont" street was located in the Springmont subdivisionof Old Hickory, Wilson County Tennessee. After responding to the area withofficers of the Wilson County Sheriff's Department, affiant received additionalinformation from Officer Watson that a subject name "David Bowling" ...had received a parking ticket on a 1984 Ford truck ... on March 16, 1990Affiant responded to that location, and while attempting to locate anyone living at said residence, observed a brown Ford truck backed into abay of the house's garage. (emphasis added)
[1][2] While examining the first issue concerning Officer Poteete'saction in looking into the defendant's garage, we note that the Constitutionof the State of Tennessee guarantees "[t]hat the people shall be securein their persons, houses, papers and possessions, from unreasonable searchesand seizures ...". Tenn. Const. Art. I, § 7. This same guarantee isembodied in the Fourth *341 Amendment of the United States Constitution.The touchstone of unreasonable search and seizure analysis is "whethera person has a 'constitutionally protected reasonable expectation of privacy'". California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d210 (1986); see Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507,516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
Through Katz and its progeny, the United States Supreme Court has pronounceda two-part inquiry in determining an individual's constitutionally protectedreasonable expectation of privacy. First, has the individual manifesteda subjective expectation of privacy in the object of the challenged search?Second, is society willing to recognize that expectation as reasonable?Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986);Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220(1979); Katz, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576. Suchanalysis has been applied in this state. See State v. Roode, 643 S.W.2d651, 652-3 (Tenn.1982).
[3][4] In determining whether the defendant manifested a subjectiveexpectation of privacy, we are aware that neither the Fourth Amendmentnor Article I, Section 7 protects what a citizen "knowingly exposes tothe public". See Katz, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d576; State v. Marcus Ellis, No. 01-C-01-9001-CR-00021, 1990 WL 198876 RobertsonCounty (Tenn.Crim.App. filed December 12, 1990, at Nashville). That whicha citizen knowingly exposes to the public is that in which he or she hasnot manifested subjective expectation of privacy.
However, in the instant case it is apparent that the defendant didnot knowingly expose the truck to the public. His truck was behind a solid,completely closed garage door. While the only other garage door was open,it had been raised a mere one and a half feet to allegedly enable the dogto come and go from the garage. Therefore, the defendant clearly manifesteda subjective expectation of privacy.
[5][6] The issue hence becomes whether society is prepared to recognizeas reasonable the defendant's expectation of privacy when he left the garagedoor open one and a half feet. "In pursuing this inquiry, we must keepin mind that '[t]he test of legitimacy is not whether the individual choosesto conceal assertedly "private" activity,' but instead 'whether the government'sintrusion infringes upon the personal and societal values protected bythe Fourth Amendment.' " Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 1812,90 L.Ed.2d 210 (quoting Oliver v. United States, 466 U.S. 170, 182-83,104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984)). Society has recognized thatthe resident of a home usually has a reasonable expectation of privacyin a garage. See Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76L.Ed. 951 (1932). Therefore, in such areas where a reasonable expectationof privacy is usually accorded, "[a]n officer is permitted the same licenseto intrude as a reasonably respectful citizen". State v. Seagull, 95 Wash.2d898, 632 P.2d 44, 47 (1981).
While the factual situation makes this a case of first impression inTennessee, support exists for our conclusion in the decisions of our sisterstates. See e.g. State v. Cloutier, 544 A.2d 1277 (Me.1988). (Since officerdid not bend over or move any object in order to improve his view, hisobservation of the marijuana while simply passing by the open window wasnot a search for purposes of Fourth Amendment); State v. Adams, 378 So.2d72 (Fla.App.1979) (Officer's standing on chair and peering into windowwas held to violate occupants' reasonable expectation of privacy); Peoplev. Cagle, 98 Cal.Rptr. 348, 351, 21 Cal.App.3d 57, 66 (1971) (Officer strayedfrom "normal access routes" when he peered into a bathroom window. Hisaction was an unreasonable invasion of privacy).
It is the determination of this Court that Officer Poteete's actionsof getting on his hands and knees with his head very near to the groundand looking into the garage are not those actions which society would permitof a reasonably respectful citizen. In making such a judgment, this Courthas attempted to strike a balance between the individual's reasonable*342expectation of privacy and the permissible actions of an officer of thelaw.
We take great caution in rendering impermissible the actions of anofficer employing only his or her bare physical faculties. However, OfficerPoteete did not just sway to one side or the other to observe something.He did not even merely bend over slightly to observe something. He gotdown on his hands and knees with his head almost touching the ground andlooked into the garage. We, therefore, conclude that the officer's actionsconstituted a warrantless search which violated the personal and societalvalues protected by the Fourth Amendment and Article I, Section 7.
[7] While the State brought this appeal, the defendant raised threeadditional matters. The second issue before us is whether the search warrantcontained reckless misrepresentations of material facts. It is true thatOfficer Poteete reported in the search warrant affidavit certain informationwhich later was discovered to be incorrect. He stated that the anonymousinformer had told the police that the car would be parked in the garage.The informant had actually told the officers that the truck would be parkedbehind the house. In addition, the officer reported that the defendanthad received a parking ticket on the very same day of the accident, March16, 1990. Actually, the defendant had received a parking ticket on February28, 1990, and had paid for that ticket on March 16, 1990. Faced with thesefacts, the trial court determined that these incorrect statements weremade with a "reckless disregard for the truth". The record supports thisfinding.
The Tennessee Supreme Court has set forth two circumstances which authorizeimpeachment of a search warrant affidavit: (1) when "a false statement[is] made with intent to deceive the Court, whether material or immaterialto the issue of probable cause, and (2) [when] a false statement, essentialto the establishment of probable cause, [is] recklessly made". State v.Little, 560 S.W.2d 403, 407 (Tenn.1978). The trial court concluded thatneither of these circumstances was present in the instant case. We agreewith that conclusion.
At the evidentiary hearing the officers simply had no explanation forthe mistakes in the affidavit. Although the trial court expressed concernthat the facts reported by the informant may have been somehow changedto fit what was actually found, the trial court did not conclude that therewas an intent to deceive the court. Having reviewed the entire situationas reflected in the record, we agree with the trial court's determination.
We further determine that the trial court appropriately dismissed thesecond circumstance also. Although the inaccuracies were reckless misrepresentations,they were not reckless misrepresentations of material fact. The informationregarding where the vehicle was parked and when a parking ticket was receivedwere not essential to the assessment of whether the affidavit stated probablecause. Essential facts were, for example, that the informant reported thedefendant coming in late on the night of the accident; that the informantmentioned that the vehicle was a Ford Bronco; and that the informant statedthe vehicle had sustained front end damage. Unlike the information regardingthe parking ticket and the place where the vehicle was parked, these factsgreatly aided the magistrate in determining whether the affidavit statedprobable cause. As such, this contention provides no basis for invalidatingthe search warrant.
[8] The third issue raised on appeal is whether the search warrantaffidavit, absent the information attained from the contested search, wouldbe sufficient to support probable cause. We concluded above that the contestedsearch was a warrantless search in violation of the Fourth Amendment ofthe United States Constitution and Article I, Section 7 of the TennesseeConstitution, and consequently, the information attained therefrom wastainted and inadmissible. The trial court held and the State concedes thatif the information attained from the contested search was inadmissible,the search warrant affidavit would be insufficient to support a findingof probable cause. We affirm this determination.
In State v. Jacumin, 778 S.W.2d 430 (Tenn.1989), our Supreme Courtrejected the totality of circumstances test, which the United States SupremeCourt expounded in *343 Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,76 L.Ed.2d 527 (1983). Our Supreme Court instead reaffirmed the two-prongAguilar-Spinelli test as the standard to be applied to a search warrantbased upon an unknown or unidentified citizen informant. Jacumin, 778 S.W.2d430, 436. The latter test requires that the affidavit establish: (1) theinformant's "basis of knowledge" and (2) the informant's "veracity". Jacumin,778 S.W.2d 430, 432; see Spinelli v. United States, 393 U.S. 410, 89 S.Ct.584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,12 L.Ed.2d 723 (1964). Essentially, the first prong "inquire [s] as tohow the informant concluded the criminal activity [had taken] place: 'Howdoes he [or she] know that?' The second 'prong' inquire[s] into the informant'sveracity: 'Why do I believe him [or her]?' " Raybin, Criminal Practiceand Procedure, § 18.58, p. 584.
The affidavit entirely fails to indicate the basis of the informant'sknowledge as it makes no mention of how the informant obtained the information.Since the first prong was clearly not established, there is no need toanalyze whether the second prong was proven. We conclude that the trialcourt correctly found the information in the affidavit, excluding the evidencefrom the contested search, insufficient to support probable cause.
The fourth and final issue before us is whether the appeal in thiscase was timely filed and, therefore, should not be dismissed. This Courtexamined this issue when the defendant filed a Motion to Dismiss Appealand Memorandum in Support Thereof on January 17, 1992. On February 5, 1992,this Court denied the motion, declaring that justice required the appealto proceed. We reaffirm that determination today. Consequently, this issueis without merit.
Having examined each contention raised, it is the determination ofthis Court that the trial court's order suppressing certain evidence beaffirmed.
WADE and TIPTON, JJ., concur.
Tenn.Cr.App.,1993.
State v. Bowling
END OF DOCUMENT
===========================
Tenn. Op. Atty. Gen. No. 95-125
Office of the Attorney General
State of Tennessee
*1 Opinion No. 95-125
December 22, 1995
Constitutionality of a City Placing Parking Meters on Land Adjacentto Federal Highways, Enforcement of Citations, and Ensuing Fines
Hon. David A. Marlowe
General Sessions Judge
Franklin County Courthouse
Winchester, TN 37398
QUESTIONS
1. Is the City of Winchester preempted by any rule of law, federal orotherwise, from regulating parking spaces immediately adjacent to, borderingon, or in the federal right-of-ways of U.S. Highways 64 West and 41-A North?
2. If a city judge issues a bench warrant for the arrest of an individualwho does not appear in court as commanded on a parking ticket left undera car's windshield wiper, will a cause of action exist against the cityand/or city judge for false imprisonment, malicious prosecution or a violationof the person's civil rights upon arrest?
3. If the city has the authority to regulate these parking spaces,may the city fine elected county officials for parking violations, duringthe business day? Do such fines violate the constitutional prohibitionagainst diminution of salary while in office as to elected judges?
OPINION
1. The City of Winchester is not preempted by any rule of law from regulatingparking spaces immediately adjacent to, bordering on, or in the federalrights-of-way of U.S. Highways 64 West and 41-A North.
2. When a city judge executes a warrant within his official capacityand discretion, no tort liability arises.
3. Elected officials, like the rest of the population, can be finedfor traffic violations. These fines do not violate the constitutional prohibitionagainst diminution of salary while in office.
ANALYSIS
1. The City of Winchester may regulate parking along U.S. Highways 64West and 41-A North. 23 U.S.C.A. §§ 103, 114, 116 (WEST 1966).Nowhere in federal law is the federal policing of highways or the regulationof traffic contemplated. The federal government instead funds federal highways,leaving the police power to the several states.
2. There is no cause of action for false imprisonment, nor any othercause of action against a city judge or city in the circumstances described.The rule in Tennessee is "that a civil action for damages will not lieagainst a judge of general jurisdiction for his judicial acts if such actswere committed within the jurisdiction of his court. If done within hisjurisdiction neither the correctness of nor motive behind the acts affectsimmunity." Heath v. Cornelius, 511 S.W.2d 683, 684 (Tenn. 1974). Clearly,a municipal judge issuing an arrest warrant for non-compliance with a localordinance falls squarely within this rule.
3. Article VI, Section 7 of the Tennessee Constitution, provides "TheJudges of the Supreme or Inferior Courts, shall, at stated times, receivea compensation for their services, to be ascertained by law, which shallnot be increased or diminished during the time for which they are elected."This provision only applies to the Supreme and Inferior Courts. Courtswhich exercise purely municipal authority are neither Supreme nor InferiorCourts. Town of South Carthage v. Barrett, 840 S.W.2d 895, 897-898 (Tenn.1992). Therefore, Article VI, Section 7 of the Tennessee Constitution isnot applicable.
*2 In addition, in Forester v. White, 484 U.S. 219, 227, 108 S.Ct.538, 544, 98 L.Ed.2d 555 (1988), the Court drew "the line between trulyjudicial acts, for which immunity is appropriate, and acts that simplyhappen to have been done by judges." The court adopted a functional testfor determining what constitutes a judicial act, looking to "the natureof the functions with which a particular official or class of officialshas been lawfully entrusted." Id. at 224, 108 S.Ct. at 542, 98 L.Ed. at_____. Parking cars is not an official function peculiar to judges. Consequently,judges enjoy no constitutional immunity from parking regulations.
Morever, such immunity has not been granted by statute in Tennessee.Tenn. Code Ann. § 55-8-103 requires obedience to traffic laws. Tenn.Code Ann. § 55-8-106 provides that traffic laws apply to all vehiclesowned or operated by public employees. The only exceptions to this ruleare found in Tenn. Code Ann. § 55-8-107 (persons working on highways)and Tenn. Code Ann. § 55-8-108 (authorized emergency vehicles whenresponding to an emergency). Since judges do not work on highways or answeremergency calls in authorized emergency vehicles, they have no statutoryimmunity to park cars unlawfully.
Further, parking fines are not an unconstitutional diminution of judges'salaries while in office. This issue has never been addressed in any reportedTennessee case, but other jurisdictions with similar constitutional provisionshave uniformly held that diminution of judicial salaries is only unconstitutionalwhen it is direct or discriminatory, that is, aimed at judges alone.
For example, in Batesville Casket Co. v. Fields, 155 S.W.2d 743, 745(Ct. App. Ky. 1941), the court reasoned that the garnishment of a judge'swages was not an unconstitutional diminution, stating "if the office hasincurred obligations from the salary he is otherwise entitled to receive,he will not be protected under the guise that application of his salaryto a debt through legal process has the effect of reducing his salary".Like the Kentucky garnishment law at issue in Batesville Casket, a cityparking ordinance applies generally to the community and is not a burdenborne by judges alone or in any way an attack on judicial independence.
Federal courts have also addressed similar issues under the CompensationClause. In Atkins v. U.S., 556 F.2d 1028, 1045 (Ct. Cl. 1977), cert. denied,434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751, the court held "Indirect,nondiscriminatory diminutions of judicial compensation ... fall outsidethe protection of the Compensation Clause ..." Atkins relied on O'Malleyv. Woodrough, 59 S.Ct. 307, 838 U.S. 277, 83 L.Ed. 1289, where the courtheld that judges must pay income tax since "to subject them to a generaltax is merely to recognize that judges are also citizens, and that theirparticular function in government does not generate an immunity in sharingwith their fellow citizens the material burden of the government ..." 307U.S. at 282, 59 S.Ct. at 840, 83 L.Ed. at 1294. The court noted that tosuggest otherwise "is to trivialize the great historic experience on whichthe framers based the safeguards of [the Compensation Clause]". Id. Asthe court observed in Duplantier v. U.S., 606 F.2d 654, 669 (5th Cir. 1979),cert. denied, 101 S.Ct. 854, "although it is true that ... civil penaltyprovisions ... may reduce a judge's disposable income, that penalty cannotbe fairly described as a diminution of compensation". Parking fines asa civil penalty are imposed indiscriminately upon the citizenry and cannotbe described as an unconstitutional reduction of judges' compensation.
*3 Charles W. Burson
Attorney General & Reporter
Michael E. Moore
Solicitor General
Kathy Morante
Deputy Attorney General
Merrilyn Feirman
Assistant Attorney General
Tenn. Op. Atty. Gen. No. 95-125, 1995 WL 767273 (Tenn.A.G.)
END OF DOCUMENT
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Thornburg v. Thornburg
1991 WL 47487
Tenn.App.,1991.
April 9, 1991. (Approx. 2 pages)
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