Chapel Hill News

June 13, 2014

Court rejects Chapel Hill cell phone ban, upholds some towing rules

The state Supreme Court struck down Chapel Hill’s ban on using cell phones while driving Thursday but said the town can set some rules for towing drivers from private lots.

The state Supreme Court struck down Chapel Hill’s ban on using cell phones while driving Thursday but said the town can set some rules for towing drivers from private lots.

As written, Chapel Hill’s cell phone ban would have only been enforced if a driver was stopped for another violation. A driver using either a handheld or hands-free device behind the wheel would have paid a $25 fine.

The town’s ban would have been one of the strongest in the country. Several states ban the use of handheld cell phones while driving, and many more, including North Carolina, prohibit young drivers from using either type of device while behind the wheel. None ban hands-free cell phone use.

The town’s attorneys argued the town’s rules protect public health, safety and welfare. However, the court found that local governments do not have the authority to pass their own rules, because the state already regulates cell phone use while driving.

North Carolina laws only prohibit school bus drivers and those under the age of 18 from using a cell phone while driving.

“In conclusion, we recognize municipalities’ need to protect their citizens,” Justice Paul Newby wrote for the Supreme Court, “but we are unwilling to construe our General Statutes to give municipalities unfettered power to regulate in the name of health, safety, or welfare.”

The ruling was disappointing but not surprising, said Joe Capowski, a former Chapel Hill Town Council member and advocate for banning cell phone use while driving. The current legislature is unlikely to do anything to regulate cell phone use, he said.

“Nothing that the N.C. Supreme Court did makes it any safer to use your cell phone while driving,” he said.

He and others asked the town last year to press forward with the case and look for more opportunities to educate the public about distracted driving. Multiple studies have shown that hands-free cell phone use while driving is no more safe than using a hand-held phone.

UNC and local schools, in particular, are very concerned about the dangers, Capowski said. The solution may be a mix of public education and private restrictions, such as companies that prohibit employees from cell phone use while driving on the job, he said. Much like anti-smoking efforts, the more inconvenient a behavior becomes, the less likely people are to continue doing it, he said.

The appeals court did not address the town’s authority to enact the ban when it upheld the cell phone rules last year. The case would have been more appropriate if a tow-truck driver who was cited for violating the ban had challenged it, the appeals court said.

Towing company owner George King argued the ban put an extra burden on his drivers, because the town's towing laws require them to notify police within 15 minutes of picking up a vehicle. The drivers can’t do that without breaking the rules on using a cell phone while driving, he said.

The Supreme Court agreed, saying “the ordinance’s alleged substantial encumbrance on economic activity constitutes a manifest threat of irreparable harm” on towing companies.

The court did support some local rules on towing operations in Chapel Hill, including a town requirement that private property owners post signs warning drivers they could be towed and another requiring truck drivers to let police know when they tow a car.

The town does not, however, have the power to set towing fees or stop companies from passing on credit card fees to drivers, the court said.

“Unlike the signage and notice provisions, there is no rational relationship between regulating fees and protecting the health, safety, or welfare,” Newby wrote. “Further, the fee schedule provision implicates the fundamental right to ‘earn a livelihood.’ ”

King’s attorney, Thomas Stark, said they are pleased with the court’s ruling. King has maintained good relations with Chapel Hill police and continues to notify them when cars are towed, he said. The next step is to sit down with the town’s attorneys and make sure they’re on the same page, he said.

“We thought the court gave this careful consideration,” Stark said.

The decision overturns last year’s Court of Appeals ruling that the town’s towing rules, which capped fees and required signs in tow zones among other measures, were a valid use of the town’s power to protect the “health, safety, or welfare of its citizens.”

Stark appealed the decision to the Supreme Court, which ordered the town to stop enforcing both rules while awaiting a decision.

The case started when George’s Towing and Recovery filed a lawsuit after the town’s cell phone rules took effect in 2012. The towing rules were scheduled to begin in June, but Superior Court Judge Orlando Hudson stopped the enforcement of both rules May 2.

In August 2012, Hudson said the towing rules unconstitutionally regulated trade and said the town doesn’t have the authority to enact a cell phone ban.

Chapel Hill Mayor Mark Kleinschmidt said he was shocked to read the court’s decision. It gives tow companies “the ability to charge whatever they want whenever they want,” he said.

While the rules were suspended last year, some drivers reported being charged $200 to $300 to retrieve their towed cars, town officials have said.

Kleinschmidt predicted the ruling would leave more drivers waiting in the dark for a stranger to take them to an ATM for cash and then to pick up their cars. Many towing companies in Chapel Hill have tow lots that are located several miles from town.

The council could look at tweaking its sign rules in the future, he said.

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