Town to appeal ruling on cell phone, towing laws

By Susan Dickson
Staff Writer

CHAPEL HILL – Earlier this month, a judge struck down Chapel Hill’s towing and cell phone ordinances, but the town council is standing behind both laws and will appeal the rulings.

Last week, the Chapel Hill Town Council met in closed session with Town Attorney Ralph Karpinos to discuss the town’s options regarding Superior Court Judge Orlando Hudson’s ruling earlier this month that the town could not enforce its ordinance prohibiting cell phone use while driving or its towing ordinance.

Hudson ruled that the town’s cell phone ordinance was preempted by state law because 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, which is prohibited under state law.

Mayor Mark Kleinschmidt said the council came to a consensus last Wednesday to appeal the ruling regarding the towing ordinance. In addition, the council voted 6-3 to appeal the decision regarding the cell phone ordinance, with council members Matt Czajkowski, Laurin Easthom and Lee Storrow dissenting. The cell phone ordinance would have prohibited the use of cell phones or any additional technology while operating a car in town, carrying a $25 fine for violation.

Both Czajkowski and Easthom had previously voted against the ordinance, which the council approved in a 5-4 decision in March. Kleinschmidt and council member Gene Pease had also voted against the ordinance, but voted in favor of appealing the judge’s ruling.

“There are questions about municipal authority that are implicated by this judge’s order, and I’m disturbed by this order and the way it limits municipal authority,” Kleinschmidt said. “It has greater impact on the way our community operates and the way I think communities across the state operate. It has greater impact than just the cell phone ordinance.”

Storrow previously voted in favor of the ordinance, but voted against appealing.

“I did vote for the ordinance when we passed it,” Storrow said. “I thought we had compelling evidence that using cell phones behind the wheel was a public-health problem.”

However, Storrow said he felt it was time to move on, given that the council has a number of important priorities to focus on this year.

“I think we have to consider what authority we have as a municipality and what authority we don’t,” he added.

The ruling stemmed from a challenge to the laws by George King of George’s Towing and Recovery, who held that the ordinances could cause his business irreparable harm. Since May – when Hudson issued a temporary restraining order – the town has been unable to enforce either ordinance, and the town has received a number of complaints regarding George’s Towing, with some drivers reporting being charged as much as $250.

The council had approved changes tightening the town’s towing ordinance – which dated back to at least 2002 – in February, responding to concerns about predatory towing practices. The changes 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.

Kleinschmidt said that, just as he was with the cell phone ruling, he was concerned about the implications the judge’s ruling on the towing ordinance would have on municipality authority.

“Our authority on towing I think generally comes out of our police powers and not just this specific statute that the judge references,” he said. “It’s bothersome to me, as the mayor, as a lawyer. If this is how the limits of municipal authority are going to be defined in North Carolina, then we need to know that with a higher degree of confidence.”

Hudson’s decision leaves similar towing ordinances in other North Carolina towns and cities – including Carrboro – susceptible to challenge.

Storrow said that while he voted against appealing the cell phone ruling, he supported the town’s appeal of the towing ordinance decision.

“There are multiple municipalities in North Carolina that regulate towing, so I think we have a responsibility to the state to appeal that decision,” he said.

Unlike the towing ordinance, the cell phone ordinance – which would have regulated the use of both handheld and hands-free devices while driving – would have been the first of its kind nationwide.

Kleinschmidt said the town is seeking a stay order that would allow Chapel Hill to enforce its towing ordinance while the litigation is pending.