An attorney for the City of Granite City says the plaintiff in a proposed class action over certain towing fees failed to exhaust administrative remedies before filing suit.

The proposed class includes drivers ticketed for DUI or driving with a suspended or revoked license and who were made to pay a premium fee to retrieve their impounded cars.

City attorney Brian Konzen wrote that plaintiff David Funkhouser - who claims he had to pay the higher of two authorized administrative towing fees of $400 versus $150 to retrieve his car after a July 10, 2011 arrest – was entitled to a hearing to contest the fee, but failed to avail himself to it.

Six cities in Madison and St. Clair counties, including Granite City, were sued in December by plaintiffs who propose to lead classes of individuals who seek refunds for administrative fees plus costs and other relief.

"The Tow Ordinance of the City of Granite City...specifically provides for an administrative hearing available to the plaintiff," Konzen wrote in a recent motion to dismiss.

"There is no allegation in plaintiff's complaint (that) the named plaintiff, nor any purported class member, availed himself or herself of the statutory right to an administrative hearing...Therefore, plaintiff's complaint fails to state a cause of action, and must be dismissed."

Eric D. Holland and Steven L. Groves of Holland, Groves, Schneller and Stolze in St. Louis and Brian L. Polinske of Polinske and Associates in Edwardsville represent plaintiffs in the proposed classes.

Those attorneys have filed class certification motions in each of the four Madison County class actions.

"This fee is not a tow charge (that is paid separately to the towing company) and has no rational basis in accomplishing the means of what the ordinance purports to do," Polinske wrote in the certification motion. "This is a violation of the Class' due process rights..."

The plaintiffs claim that the cities' administrative processing fee is not a tow fee but merely a receipt and is not related to the cost of towing, towing services or actual services provided.

Polinske and Holland ask that a ruling on the certification motion be delayed "until such time as sufficient discovery has been conducted for the court to have a reasonably (sic) opportunity to consider this motion."

Circuit Judge Andy Matoesian presides in the case against Granite City.

Edwardsville, Alton and Collinsville are also targets of nearly identical class action litigation in Madison County.

In the case against Edwardsville, Allan Lewis claims he was cited and arrested on May 20, 2011. As a result, his car was towed and he was required to pay an administrative processing fee of $300, his suit states.

Attorney Alvin C. Paulson represents the City of Edwardsville. On Feb. 3, he asked the court to file an order dismissing the complaint.

Circuit Judge Bill Mudge presides in the Edwardsville case.

In the case against Alton, Matthew E. Carter claims he was arrested on June 26, 2011. He claims he was forced to pay a level one administrative fee to Alton of $500.

James Schrempf of Schrempf, Kelly, Napp & Darr of Alton represents the city.

On Feb. 1, Schrempf wrote in a motion to dismiss, "[P]laintiff's class action complaint must be dismissed in its entirety. The ordinance clearly states the purpose of the fee is to recoup costs expended by the city in connection with towing and impoundment of the vehicles."

Circuit Judge Dennis Ruth presides. On Feb. 3, he continued a hearing on a plaintiff's motion for class certification until parties request that it be set.

In the case against Collinsville, Amy Kopesky claims she was arrested on Dec. 2, 2010. In order to retrieve her car from the tow company, she was required to pay a level one administrative fee to Collinsville of $500.

Paulson and attorney Steven Giacoletto represent the City of Collinsville.

Collinsville has until Feb. 16 to file a responsive pleading, according to an order signed by Associate Judge Thomas Chapman, who presides.

Giacoletto wrote in a motion for extension of time to file, "the Defendant has two insurance companies that may be responsible for providing it a defense and indemnification in this action.

"[O]ne of the Defendant's insurers has denied a defense of the claim and the other has yet to make a decision on its defense of the claim."

Collinsville Mayor John Miller remarked that the city's ordinance that sets the fees is justifiable and will be upheld in legal challenges. His comments can be read here.

The cities of O'Fallon and Fairview Heights are being sued over similar claims in St. Clair County.

Madison County case numbers: 11'-L-1304, 11-L-1305, 11-L-1306 and 11-L-1307.

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