Metropolitan News-Enterprise


Friday, September 27, 2002


Page 1


C.A. Upholds Law Requiring Gas Stations to Give Customers Air, Water


By KENNETH OFGANG, Staff Writer/Appellate Courts


A state law requiring service station owners to provide customers who buy gas with free water, compressed air, and use of an air pressure gauge was upheld yesterday by the Fourth District Court of Appeal.

Div. Three, in an opinion by Justice Richard Fybel, rejected a challenge by service station owners and vendors of water and compressed air. The plaintiffs claimed that the law enacted in 1999 deprives them of their property without just compensation, but Fybel said it was not a taking and was consistent with the state’s police power.

The 1999 act was a follow-up to legislation enacted 15 years earlier that required station owners to provide those services, but was silent as to whether they could charge a fee. Many stations responded by putting in coin-operated vending machines, usually charging 25 cents for three minutes of compressed air.

The current law requires that the services be provided free, and that station owners post signs informing the public of the right to free services and of a toll-free number a motorist may call to complain if the services are not provided. In enacting the law, the Legislature declared that it was acting to promote public safety, since “air and water are essential to the safe operation of motor vehicles.”

Summary Judgment

Orange Superior Court Judge H. Warren Siegel granted the state’s motion for summary judgment, concluding that the law was a reasonable measure for accomplishing its expressed purpose.

Fybel agreed. The plaintiffs, he concluded, failed to establish that the law was “manifestly unreasonable, arbitrary or capricious,” or that it had “no real or substantial relation to the public health, safety, morals or general welfare.”

The accuracy of the legislative declaration is beyond doubt, Fybel explained. Even the plaintiffs, he said, agreed that availability of free air and water at service stations makes it more likely that motorists will keep their tires properly inflated and their coolant systems filled with water.

The law did not “take” the plaintiffs’ property, the justice went on to say, because it was a reasonable regulation under the guidelines laid out in Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761. The Kavanau court, which held that an invalid rent control regulation did not effect a taking since the landlord could recoup his losses through increased future rents, identified several factors for courts to consider in deciding whether a “regulatory taking”—as opposed to a “per se” taking involving physical invasion of a property interest—has occurred.

Factors Considered

The factors listed by the court included the necessity of the regulation, whether the property owner is deprived of the ability to earn a fair return on investment, whether the financial burden on the regulated party is mitigated in some way, and whether the regulation extinguishes some fundamental attribute of ownership.

Neither the vendors nor the service station owners established a regulatory takings claim under Kavanau, Fybel insisted, as there was no proof that any of the burdens imposed by the legislation outweighed the “substantial public purpose” behind it.

The evidence considered by the trial judge, he explained, did not support the vendors’ assertion that the government had “singled out [their] industry for extinction” by barring them “from charging for the only product/service they offer.” The companies are still free to rent or sell their machines to service station operators, the justice noted, saying they failed to substantiate their “prediction of economic doom.”

As for the station owners, Fybel said, the law does not prevent them from increasing the price of gasoline or other services to cover the cost of providing free air and water. And their papers in opposition to summary judgment, he said, were “surprisingly bare” of support for the assertion that the economic impact on their operations would be significant.

One station owner, the justice acknowledged, predicted in his declaration that his business “will not survive” under the new law, which the declarant attributed to the suggestion that his vendor would go out of business and that he would have to incur the expense of obtaining, installing and maintaining new equipment.

But that was all speculation, Fybel said, declaring that the plaintiffs had failed to establish that the law “has an economic impact on the service station operations that constitutes either a per se taking or a regulatory taking.”

The case is Massingill v. Department of Food and Agriculture, G028308.


Copyright 2002, Metropolitan News Company