Legally Speaking

Legally Speaking

DEPARTMENTS

JAMES W. MORGAN

ORDINANCES sometimes cause problems which we don’t always anticipate. This month our discussion will involve an ordinance which was challenged. The success of the challenger in this case maypose problems for some other communities in the United States. Let’s lay some ground work so that we will have a basis for discussion. Consider the following case.

“Appellant, an employee of Mobil Oil Company, was convicted in the County Court of Runnels County upon an appeal from a conviction in the Corporation Court of the City of Ballinger for a violation of an ordinance of said city which prohibited the unloading of gasoline at a retail establishment from a tank truck containing more than 1,500 gallons of gasoline. His fine being only $50.00, appellant (Mobil) was unable to appeal; so he applied to the District Court for a writ of habeas corpus, alleging that such ordinance was unconstitutional. The court overruled apellant’s (Mobil) contention, remanded him to custody, and he appealed to this Court from such ruling.

“The pertinent portions of the ordinance are Section 2:

“That no person, firm, association or corporation shall unload gasoline or other volatile inflammable oil at ayy retail establishment within the corporate limits of the City of Ballinger, Texas, from a tank, truck or other container which contains more than 1,500 gallons of such gasoline or other volatile inflammable oil,” and Section 3:

“That the foregoing provisions shall not apply to person, firm, association or corporation transporting gasoline or other volatile inflammable oil within or through the corporate limits of the City of Ballinger, Texas, in the normal course of business, and not for the purpose of unloading the same at a retail establishment within such corporate limits, and shall not apply to any wholesale establishment; commonly referred to as bulk plants.”

“Appellant (Mobil) asserts that these sections create an arbitrary and unreasonable classification and were designed to discriminate in favor of certain retail establishments who bought their gasoline from companies maintaining a consignee and a warehouse in the city’, from which they make deliveries to the filling stations in smaller trucks, over the filling stations who buy their gasoline from the larger tank trucks delivering gasoline directly to their stations from a central dispersing point, which system enables them to effect a saving of approximately one cent per gallon.

“We are confronted with the determination of whether or not there is a reasonable basis for the creation of this class by the city council.. .

“The only basis upon which the city relies is that of safety. We have examined the testimony on this question with care and have concluded that the appellant (Mobil) has met the burden of proving that no greater danger of fire was inherent in the direct delivery by transport truck over the system of delivery to a storage tank and then redelivery by smaller truck to the station, the method employed by Mobil’s competitor, the Standard Oil Company.

“That portion of the ordinance which regulates the size of underground tanks at filling stations need not be discussed because the city concedes, and their own witnesses testified, that no greater danger is inherent in a larger than in a smaller underground tank.

“The ordinance does not limit the size of the tank, truck or container from which gasoline, etc., may be delivered to retail establishments so long as the amount of gasoline, etc., in the container does not exceed 1,500 gallons. There is no disagreement between the parties that a properly vented tank and properly constructed equipment will prevent the escape of fumes, and therefore the quantity of gasoline carried does not create a fire hazard which the ordinance by its terms seeks to prevent.

“Appellant (Mobil) has met his burden and has shown that the ordinance is unconstitutional.”

Summing up the ruling in this case we find that the court found the ordinance prohibiting retail deliveries of gas from tankers containing over 1,500 gallons was unconstitutional. The basis for the decision was the finding by the court that the fire hazard was no greater from a quantity of gasoline exceeding 1,500 gallons.

It is indeed difficult to argue with the facts and findings of this case as written. After reading this case it became apparent to this writer that something was missing. It appears that the missing consideration was the practical point involved in fighting the fire once it is ignited. This case considers only the possibility of ignition. You will no doubt agree that as to ignition, assuming that venting and other factors are constant, little difference exists between a 500gallon or 8,000-gallon gasoline tank. But from the point of view of the fire service a difference does exist once the fire has started. We can agree that a 500-gallon spill on Main Street is a hit different from an 8,000-gallon spill on Main Street. This point becomes even more meaningful when that gasoline is on fire.

It is true that by the terms of the ordinance in this case nothing prohibits the larger tankers from going through town. It restricts only deliveries to retail establishments in the city. It can he argued however that the exposure ratio does differ to a large extent. It is one thing to have an 8,000-gallon tanker go through town and another thing to have that tanker make several stops in town for the purpose of unloading.

You of the fire service must be concerned not only with fire prevention (ignition in this case) but with combatting the fire once it has started. The magnitude of the hazard and the fire potential it poses to the fire department has a direct bearing on the equipment and manpower requirements the fire chief must consider. Is the ordinance in this case much different from the many ordinances restricting the storage of Class 1 liquids in buildings? Further, are the reasons for the ordinance different? After considering these questions you will no doubt agree that they are closely related.

It would be unfair to comment further on this case without full knowledge of the facts. It is apparent that a competitive struggle between two gasoline companies was a factor in this case. One company would be excluded from the market unless they changed their distribution pattern. It should also be recognized that present-day transportation facilities have tended to centralize distribution points. It becomes necessary then to balance the interests of all parties. At what point does the safety of our citizens and the necessities of modem business meet? At this point mv task becomes rather simple. The question must be answered in part by the fire service.

If your ordinance is resonable and not discriminatory it will probably be upheld. This presumes that it is predicated upon sound fire protection principles designed to safeguard the lives and property of our citizens. You must decide at what point a given volume of gasoline or other flammable liquid becomes a safety hazard to our citizens.

In closing, let me once again point out that you should consider not only problems involving ignition hazards but also the resultant fire hazard after ignition.

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