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Towing, cell phone laws struck down

By Susan Dickson
Staff Writer

Following a judge’s ruling last week that Chapel Hill’s ordinances regulating cell phone use while driving and towing from private lots are unenforceable, town officials are hoping to schedule a special meeting to craft a towing ordinance that would comply with the judge’s order.

Superior Court Judge Orlando Hudson ruled last Thursday that the town’s ordinance prohibiting cell phone use while driving was preempted by state law, since the legislature has enacted laws regulating cell phone use among teens and bus drivers. In addition, Hudson ruled that Chapel Hill’s towing ordinance regulates trade, and is therefore unconstitutional in accordance with state law.

Chapel Hill Mayor Mark Kleinschmidt said Monday that the town did not yet have the judge’s written order, but that the town council would take a look at it to determine how to enact a towing ordinance in compliance with the order.

“We’re also going to need to consider whether or not we want to appeal this,” Kleinschmidt said. “At the end of the day, what the judge seems to have indicated from the bench is that no towing ordinance in the state can be legal. … Personally, I have some interest in whether that can possibly be the right law.”

The council approved changes tightening the town’s towing ordinance in February, responding to concerns about predatory towing practices. The changes, which were to go into effect May 1, would have limited towing fees to $125 town-wide; required towing companies to accept multiple forms of payment, including credit and debit cards; and required that one sign be posted at every third parking space and a sign be posted notifying drivers of video surveillance, in addition to signage previously required at the entrance to the lots.

The town previously had a towing ordinance that dated back to at least 2002, according to Kleinschmidt, which was amended in February. Following the judge’s order, the town has no towing ordinance in place.

In May, Hudson granted a preliminary injunction preventing the town from enforcing either the cell phone or the towing ordinance, saying he agreed with a challenge by George King of George’s Towing and Recovery on the grounds that the ordinances could cause King’s businesses irreparable harm. Kleinschmidt said that since then, the town has received several complaints regarding George’s Towing, with some reporting being charged as much as $250 – twice the limit that the ordinance put in place.

Thomas Stark, King’s attorney, had argued that the provision in the towing ordinance requiring towing companies to answer calls to the number posted on towing signs would cause small companies whose phone number is that of the cell phone of the truck operator to be in violation of the cell phone ordinance by complying with the towing ordinance. Following the judge’s preliminary order, the town council tweaked the towing ordinance such that companies would be required to answer calls or return voicemails from vehicle owners within 15 minutes.

However, Stark also argued that the enabling statute by the state for the towing ordinance is itself unconstitutional on the grounds that it regulates commerce, and Hudson agreed.

“This isn’t the kind of thing that a market can solve. This is the kind of transaction in which government involvement is important to protecting citizens’ interests,” Kleinschmidt said. “The transaction occurs between someone whose car is being towed involuntarily and someone who has their car. It’s not an environment in which you can have fair and just negotiations.”

“That’s where the real harm is,” he continued. “We’ve put our citizens and our visitors in that environment, where there’s such an extreme power differential.”

Stark said his client intends to reach out to the town to work with them on towing issues.

Hudson’s decision leaves similar towing ordinances in other North Carolina towns and cities susceptible to challenge. Carrboro, for instance, enacted a towing ordinance in 2008 that prohibits towing companies from charging more than $100 for vehicles removed from private property, limits storage fees for towed vehicles to $20 per day and requires towing companies to accept payment by credit or debit card.

As for other towns’ towing ordinances, Stark said if challenged in court, “I think they would meet the same fate.”

Cell phones

The cell phone ordinance, approved by the council in a 5-4 decision in March, was to be enacted June 1. It would have prohibited the use of cell phones or any additional technology while operating a car in town, carrying a $25 fine for violation.

An assistant state attorney general told the town in an opinion letter that he didn’t believe the town had the authority to enact such an ordinance, but Chapel Hill Town Attorney Ralph Karpinos has argued that he crafted the law so that it exempts provisions already regulated by the state.

Chapel Hill Town Council member Penny Rich was one of the driving forces behind the cell phone ordinance, pointing to data likening the danger of talking and driving to driving drunk. Though the council has not yet met to discuss the judge’s ruling, Rich said she would like to see the council appeal his decision, adding that she expects the decision to come down on the same 5-4 line.

“I don’t think that anyone has changed their vote on how they feel about this,” she said.

Kleinschmidt, who voted against the measure, said the council would first need to take action on the towing ordinance before moving forward on the cell phone ordinance.

“There’s not the same sense of urgency,” he said.

Though Rich said she would like to see the state take up the matter, she is not optimistic.

“Since this new legislative body took over, they’ve just been putting it back in the closet,” she said. “I believe that nothing will happen with it.”

Additionally, Rich said she believes King challenged the cell phone ordinance as part of his strategy to challenge the towing ordinance.

“He was just grasping for anything he could to stop this tow-truck ordinance,” she said. “In my mind, it doesn’t have anything to do with the cell phone ordinance.”

Stark said he’s heard from representatives of a number of businesses since the ruling who have said how inconvenient the law would have been for their businesses.

“We were frankly surprised that the Town of Chapel Hill had regulated cell phone use, given the attorney general’s opinion,” he said, adding that Hudson’s ruling “was a pretty straightforward decision.”

Despite the measure’s supposed unpopularity, during several hearings regarding the cell phone ordinance prior to its passage, few residents spoke before the council against the proposal.

“I think that deep down people understand that driving and talking on the phone is not a good idea,” Rich said. “As human beings, we know that it is dangerous.”

“This ordinance was put in place to save lives, and that doesn’t change,” she continued. “[The ruling] doesn’t really change the fact that talking on the phone and driving can kill someone.”

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