Judge puts hold on Chapel Hill cellphone ban

Tow-truck company owner sued over ban on calls while driving

kferral@newsobserver.comMay 3, 2012 

— A judge has put Chapel Hill’s cellphone ban while driving on hold.

Superior Court Judge Orlando Hudson issued an injunction Wednesday, delaying the enforcement of both the town’s cellphone ban and new towing ordinance until a hearing on Monday.

The cellphone ban was to take effect June 1.

The towing ordinance, which limits how much tow truck operators can charge and restricts where and when vehicles can be towed from downtown, was to take effect Tuesday. It includes a provision requiring towers to report each vehicle towed to police at the time of the tow.

George King, owner of George’s Towing & Recovery, sued the Town of Chapel Hill over both ordinances.

In a statement, the company said it is “a mobile business and its tow truck operators must use their mobile phones to respond to inquiries regarding vehicles that have been towed and need to be released, and to call the police department to report illegally parked vehicles that they have towed.”

In his order, Hudson found King must use a mobile phone to comply with the town’s towing ordinance.

King’s business is mobile, Hudson said. “(D)riving and monitoring the business’ parking lots, he necessarily must use a mobile phone to make the required phone calls to the police department while in his vehicle.”

Hudson also wrote that King has a “very strong likelihood of success on the merits” of the case.

The crux of the complaint lies with the town’s authority to enact the cellphone ban, said Thomas Stark, King’s attorney.

“The town doesn’t have the authority to pass the ordinance,” Stark said. “They had an opinion to that effect and decided to apparently enact it anyway.”

The state has the “preemptive authority to regulate cellphone use by motorists in North Carolina,” wrote Assistant Attorney General Jess Mekeel in November.

King is also challenging a state law that allows several counties, including Orange County, to enact local towing ordinances.

“We believe that this towing ordinance does not comply with that law and even more, we think that the law ... is an impermissible local act,” Stark said. “The legislature cannot pass a local act to regulate trade or commerce.”

The towing ordinance also violates the state constitution because it allows police to search a tower’s car lot without a warrant, according to King’s complaint.

The case was brought before Hudson, Durham County’s chief resident Superior Court judge, because Superior Court Judge Allen Baddour had a previous client relationship with King, Stark said. Superior Court judges typically rotate and the court administrator referred the case to Hudson, he said.

King is requesting that both ordinances be ruled unconstitutional and repealed and that Chapel Hill pay the costs of legal action, according to King’s complaint.

Town Attorney Ralph Karpinos acknowledged that the town received the injunction Wednesday. He has said the town’s ban could hold up if challenged in court. The town was not represented during Wednesday’s hearing on the case, he said.

Mayor Mark Kleinschmidt also declined to comment on the details of the case Wednesday. He voted against the cellphone ban this year.

Chapel Hill’s cellphone ban applies to all streets townwide, including state-owned roads. Drivers are allowed to make emergency calls and calls with a spouse, parent or child. Violators will be fined $25.

Ferral: 919-932-8746

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