Appeals Court backs Chapel Hill cellphone ban, towing rules

tgrubb@newsobserver.comJune 4, 2013 


A driver is engaged in a phone call on his cell phone Monday, May 7, 2012 on E. Franklin St., Chapel Hill, NC. A hearing on the suspension of Chapel Hill's cell phone ban for drivers which would take effect on June 1, 2012, will be heard in Orange County Superior Court, Hillsborough on Tuesday, May 8, 2012.


— The state Court of Appeals handed the town a victory Tuesday, upholding Chapel Hill’s ban on cellphone use while driving and its towing regulations.

George King, owner of George’s Towing & Recovery Service, had filed a lawsuit challenging both town ordinances last spring. In August, Superior Court Judge Orlando Hudson ruled in his favor and ordered the town to stop enforcing the local rules.

The appeal was heard by a three-judge panel in March. Both ordinances will take effect in 20 days.

On Tuesday, the court overruled Hudson, finding that the town’s towing ordinance is a valid use of the police powers given to it by the legislature. State law, in part, allows local ordinances that protect the “health, safety, or welfare of its citizens and the peace and dignity of the city.”

The court also upheld the town’s ban on handheld and hands-free cellphone use while driving. The decision noted that the case would have been more appropriate if a tow-truck driver had been cited for violating the ban and challenged that case in court, the court stated.

The town’s ban can only be enforced if the driver is stopped for another violation.

Attorney Thomas Stark, representing George’s Towing, said it will appeal the decision to the N.C. Supreme Court. Since the Appeals Court decision was unanimous, the Supreme Court can decide whether it will hear the case.

Stark said the court’s decision was a surprise. He declined to comment on the decision before filing an appeal.

“It was a misguided effort from the start, and regulating rates makes it difficult for towing operators and private businesses” to protect private property, Stark said.

Town officials are pleased with the ruling, Town Attorney Ralph Karpinos said.

Mayor Mark Kleinschmidt said the next step is to make sure signs are posted and property owners know about the decision. The town will educate the public about the rules, especially when students return to UNC-Chapel Hill in August, he said.

The council first approved the towing ordinance in February 2012 and enacted it May 1 in response to numerous complaints about “predatory” towing from downtown lots and drivers being charged $200 or more to retrieve their cars. Among other complaints, drivers reported cars being towed just minutes after they had parked, tow operators refusing to take credit or debit cards and having to get a ride and take a wad of cash to a tow lot more than 10 miles away in the middle of the night.

Flora Parrish, records supervisor with the Chapel Hill Police Department, collected more than two dozen complaints after Hudson voided the town’s towing rules.

The ban on cellphone use was scheduled to take effect June 1, 2012, to encourage people to stop using their cellphones while driving, town officials said.

Hudson stopped enforcement of both ordinances May 2, 2012, and on Aug. 2, he agreed with George’s Towing that the towing rules were an unconstitutional regulation of trade.

The town’s ordinance set a $125 fee for vehicles towed from private lots, required lots to have signs and required tow operators to take credit cards and call police when they remove vehicles.

Kleinschmidt said the court’s decision will have far-reaching effects in Raleigh, Durham, Asheville and other cities with similar rules.

An interesting development is that it also more clearly defines the N.C. Supreme Court’s decision in the Lanvale case last year in Cabarrus County. That decision left local governments afraid their regulation and taxing authority would be further restricted, he said.

The Lanvale case supported the principle that counties and cities only have the power than the legislature specifically gives them.

However, in the Appeals Court decision, the judges wrote that the Lanvale case offered two approaches to interpreting state law. A plainly written law should be enforced as written, as in the Lanvale case, they wrote. However, a more ambiguous law can be interpreted more broadly.

“They explained it in a way that I think brings comfort to people in local government,” Kleinschmidt said.

Grubb: 919-932-8746

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