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Compressed air: Is it a right?

Law Review, by Jim Porter

SUGGESTED TITLE: FREE AIR, WATER AND TOILETS

“CALIFORNIA LAW REQUIRES THIS STATION TO PROVIDE FREE AIR AND WATER FOR AUTOMOTIVE PURPOSES TO ITS CUSTOMERS WHO PURCHASE MOTOR VEHICLE FUEL. IF YOU HAVE A COMPLAINT NOTIFY THE STATION ATTENDANT AND/OR CALL THIS TOLL-FREE TELEPHONE NUMBER. . . . “

Effective Jan. 1, 2000, the Legislature enacted a law requiring gasoline service stations to provide free air and water for its customers, along with posting the above notice.

An earlier law obligating service stations to provide water and compressed air, enacted in 1984, was silent on whether fees could be charged for those services. As a result, service stations generally began charging a fee – usually 25 cents for three minutes of compressed air. Not a bad deal.

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A “TAKINGS”?

Service station operators and vendors of compressed air sued, claiming the Legislature “took, for the public use and benefit, the . . . . pre-existing property right of operators and vendors to charge a fee for the use of their compressed air and water vending machines.”

The “takings” clauses of the federal and state Constitutions guarantee property owners “just compensation” when their property is taken for public use.

The Court analyzed when a regulation goes “too far” and affects a taking, justifying compensation, similar to the analysis of the U.S. Supreme Court in the recent Tahoe Sierra Preservation Council v. TRPA case.

There is a per se (automatic) taking when: (1) the property owner has suffered a physical invasion of his property, (e.g. government takes land for a road),or (2) where the regulation denies all economically beneficial or productive use of the land (e.g. no development rights).

Outside of those two per se takings, whether a regulation constitutes a taking must be analyzed under several factors, these three in particular:

(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action.

That folks, is takings law on the head of a pin – perfect for cocktail conversation.

RULING

The Court found there was no taking by mandating that gasoline station operators provide free air and gas, especially given that they may increase their gasoline prices to cover the additional expense.

FREE RESTROOMS

The Court discussed a 1990 law that requires service stations within 660 feet of right-of-way of any interstate or primary highway to provide restrooms at no charge for their customers. “Customer” includes anyone who purchases any product, not just gas. That is worth remembering.

HEADING IN RIGHT DIRECTION

We are entitled to free restrooms, free water and free air. Now if we can only get free oil and gasoline.

Maybe that’s what we are doing in Iraq.

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno.


 

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