By Susan Dickson
HILLSBOROUGH â€“ Following a challenge by George King of Georgeâ€™s Towing and Recovery, a judge ruled on Tuesday that the Town of Chapel Hill cannot enforce its towing and cell phone ordinances.
Durham Superior Court Judge Orlando Hudson granted a preliminary injunction preventing the town from enforcing either ordinance, saying he agreed with the plaintiffâ€™s appeal that the ordinances could cause Kingâ€™s business irreparable harm. The Town of Chapel Hill now has the opportunity to file a response to Kingâ€™s complaint, and the matter is likely to go back before the court in the next 90 days.
Thomas Stark, Kingâ€™s attorney, argued that the provision in the towing ordinance requiring towing companies to answer calls to the number posted on towing signs would cause small towing 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.
â€œMore so, the phone is the lifeblood of this kind of business,â€ Stark said. â€œThis is not a big business with a dispatcher and hundreds of wreckers. This is a small business with one or two wreckers.â€
The cell phone ordinance, approved by the Chapel Hill Town 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 didnâ€™t believe the town had the authority to enact such an ordinance. Stark argued that the townâ€™s ordinance would be preempted by state law, but Chapel Hill Town Attorney Ralph Karpinos said he had specifically crafted the ordinance so that it exempts provisions already regulated by the state.
The council approved changes tightening the townâ€™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; would require towing companies to accept multiple forms of payment, including credit and debit cards; require that companies have storage lots located no farther than 15 miles from the point of tow; create a system of graduated fines for companies that violate the ordinance; require 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; and require companies to notify the police department before towing a vehicle.
Stark also argued that the signage requirements would put a huge cost burden on towing companies, in addition to being unappealing to the businesses whose parking lots were monitored by tow trucks.
Karpinos said he had spoken with the council in closed session on Monday and that they said they would be willing to change the provision in the ordinance requiring that towing companiesâ€™ answer their phones, as well as the provision regarding signage. Because the cell phone ordinance wasnâ€™t scheduled to go into effect until June, he said, it didnâ€™t present King with any immediate harm.
The injunction prevents the town from enforcing its entire towing ordinance, not just the amendments that were enacted in February.