
{"id":27294,"date":"2012-08-09T09:57:03","date_gmt":"2012-08-09T13:57:03","guid":{"rendered":"http:\/\/www.carrborocitizen.com\/main\/?p=27294"},"modified":"2012-08-09T09:57:03","modified_gmt":"2012-08-09T13:57:03","slug":"towing-cell-phone-laws-struck-down","status":"publish","type":"post","link":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/2012\/08\/09\/towing-cell-phone-laws-struck-down\/","title":{"rendered":"Towing, cell phone laws struck down"},"content":{"rendered":"<p><strong>By Susan Dickson<\/strong><br \/>\n<em>Staff Writer<\/em><\/p>\n<p>Following a judge\u00e2\u20ac\u2122s ruling last week that Chapel Hill\u00e2\u20ac\u2122s 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\u00e2\u20ac\u2122s order. <\/p>\n<p>Superior Court Judge Orlando Hudson ruled last Thursday that the town\u00e2\u20ac\u2122s 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\u00e2\u20ac\u2122s towing ordinance regulates trade, and is therefore unconstitutional in accordance with state law. <\/p>\n<p>Chapel Hill Mayor Mark Kleinschmidt said Monday that the town did not yet have the judge\u00e2\u20ac\u2122s 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. <\/p>\n<p>\u00e2\u20ac\u0153We\u00e2\u20ac\u2122re also going to need to consider whether or not we want to appeal this,\u00e2\u20ac\u009d Kleinschmidt said. \u00e2\u20ac\u0153At 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. \u00e2\u20ac\u00a6 Personally, I have some interest in whether that can possibly be the right law.\u00e2\u20ac\u009d<\/p>\n<p>The council approved changes tightening the town\u00e2\u20ac\u2122s 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. <\/p>\n<p>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\u00e2\u20ac\u2122s order, the town has no towing ordinance in place.<\/p>\n<p>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\u00e2\u20ac\u2122s Towing and Recovery on the grounds that the ordinances could cause King\u00e2\u20ac\u2122s businesses irreparable harm. Kleinschmidt said that since then, the town has received several complaints regarding George\u00e2\u20ac\u2122s Towing, with some reporting being charged as much as $250 \u00e2\u20ac\u201c\u00c2\u00a0twice the limit that the ordinance put in place. <\/p>\n<p>Thomas Stark, King\u00e2\u20ac\u2122s 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\u00e2\u20ac\u2122s 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. <\/p>\n<p>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. <\/p>\n<p>\u00e2\u20ac\u0153This isn\u00e2\u20ac\u2122t the kind of thing that a market can solve. This is the kind of transaction in which government involvement is important to protecting citizens\u00e2\u20ac\u2122 interests,\u00e2\u20ac\u009d Kleinschmidt said. \u00e2\u20ac\u0153The transaction occurs between someone whose car is being towed involuntarily and someone who has their car. It\u00e2\u20ac\u2122s not an environment in which you can have fair and just negotiations.\u00e2\u20ac\u009d <\/p>\n<p>\u00e2\u20ac\u0153That\u00e2\u20ac\u2122s where the real harm is,\u00e2\u20ac\u009d he continued. \u00e2\u20ac\u0153We\u00e2\u20ac\u2122ve put our citizens and our visitors in that environment, where there\u00e2\u20ac\u2122s such an extreme power differential.\u00e2\u20ac\u009d <\/p>\n<p>Stark said his client intends to reach out to the town to work with them on towing issues. <\/p>\n<p>Hudson\u00e2\u20ac\u2122s 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. <\/p>\n<p>As for other towns\u00e2\u20ac\u2122 towing ordinances, Stark said if challenged in court, \u00e2\u20ac\u0153I think they would meet the same fate.\u00e2\u20ac\u009d <\/p>\n<p><strong>Cell phones<\/strong><\/p>\n<p>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. <\/p>\n<p>An assistant state attorney general told the town in an opinion letter that he didn\u00e2\u20ac\u2122t 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. <\/p>\n<p>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\u00e2\u20ac\u2122s 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. <\/p>\n<p>\u00e2\u20ac\u0153I don\u00e2\u20ac\u2122t think that anyone has changed their vote on how they feel about this,\u00e2\u20ac\u009d she said. <\/p>\n<p>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. <\/p>\n<p>\u00e2\u20ac\u0153There\u00e2\u20ac\u2122s not the same sense of urgency,\u00e2\u20ac\u009d he said. <\/p>\n<p>Though Rich said she would like to see the state take up the matter, she is not optimistic. <\/p>\n<p>\u00e2\u20ac\u0153Since this new legislative body took over, they\u00e2\u20ac\u2122ve just been putting it back in the closet,\u00e2\u20ac\u009d she said. \u00e2\u20ac\u0153I believe that nothing will happen with it.\u00e2\u20ac\u009d <\/p>\n<p>Additionally, Rich said she believes King challenged the cell phone ordinance as part of his strategy to challenge the towing ordinance. <\/p>\n<p>\u00e2\u20ac\u0153He was just grasping for anything he could to stop this tow-truck ordinance,\u00e2\u20ac\u009d she said. \u00e2\u20ac\u0153In my mind, it doesn\u00e2\u20ac\u2122t have anything to do with the cell phone ordinance.\u00e2\u20ac\u009d <\/p>\n<p>Stark said he\u00e2\u20ac\u2122s heard from representatives of a number of businesses since the ruling who have said how inconvenient the law would have been for their businesses.  <\/p>\n<p>\u00e2\u20ac\u0153We were frankly surprised that the Town of Chapel Hill had regulated cell phone use, given the attorney general\u00e2\u20ac\u2122s opinion,\u00e2\u20ac\u009d he said, adding that Hudson\u00e2\u20ac\u2122s ruling \u00e2\u20ac\u0153was a pretty straightforward decision.\u00e2\u20ac\u009d <\/p>\n<p>Despite the measure\u00e2\u20ac\u2122s supposed unpopularity, during several hearings regarding the cell phone ordinance prior to its passage, few residents spoke before the council against the proposal. <\/p>\n<p>\u00e2\u20ac\u0153I think that deep down people understand that driving and talking on the phone is not a good idea,\u00e2\u20ac\u009d Rich said. \u00e2\u20ac\u0153As human beings, we know that it is dangerous.\u00e2\u20ac\u009d<\/p>\n<p>\u00e2\u20ac\u0153This ordinance was put in place to save lives, and that doesn\u00e2\u20ac\u2122t change,\u00e2\u20ac\u009d she continued. \u00e2\u20ac\u0153[The ruling] doesn\u00e2\u20ac\u2122t really change the fact that talking on the phone and driving can kill someone.\u00e2\u20ac\u009d <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Chapel Hill officials are hoping to schedule a special meeting to craft a towing ordinance that would comply with the judge\u00e2\u20ac\u2122s order. <\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[],"class_list":["post-27294","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/posts\/27294","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/comments?post=27294"}],"version-history":[{"count":1,"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/posts\/27294\/revisions"}],"predecessor-version":[{"id":27295,"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/posts\/27294\/revisions\/27295"}],"wp:attachment":[{"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/media?parent=27294"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/categories?post=27294"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ibiblio.org\/carrborocitizen\/main\/wp-json\/wp\/v2\/tags?post=27294"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}