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King v. Town of Chapel Hill

Supreme Court of North Carolina

June 12, 2014

GEORGE KING d/b/a GEORGE'S TOWING AND RECOVERY
v.
TOWN OF CHAPEL HILL

Heard in the Supreme Court March 17, 2014.

Page 365

[Copyrighted Material Omitted]

Page 366

Orange County. No. 12CVS713. Orlando F. Hudson, Jr., Judge.

Stark Law Group, PLLC, by Thomas H. Stark and Seth A. Neyhart, for plaintiff-appellant.

Ralph D. Karpinos, Attorney for the Town of Chapel Hill; Matthew J. Sullivan, Staff Legal Advisor, Town of Chapel Hill; and Frederick P. Johnson, for defendant-appellee.

Kimberly S. Hibbard, General Counsel, and Gregory F. Schwitzgebel III Senior Assistant General Counsel, for North Carolina League of Municipalities, amicus curiae.

OPINION

Page 367

NEWBY, Justice.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 743 S.E.2d 666 (2013), reversing an order and judgment entered on 9 August 2012 by Judge Orlando F. Hudson, Jr. in Superior Court, Orange County. Heard in the Supreme Court on 17 March 2014.

In this case we examine the scope of a municipality's power to regulate both the business of towing vehicles parked in private lots and the use of mobile telephones while driving. Municipalities are vested with general police power to regulate or prohibit acts detrimental to their citizens' health, safety, or welfare. N.C.G.S. § 160A-174 (2013). Even so, that authority is limited in scope, constrained by State and federal laws, as well as by inherent fundamental rights. Because the Town of Chapel Hill exceeded its power to regulate vehicle towing by creating a fee schedule and by prohibiting towing companies from charging credit card fees, and because municipalities are preempted by State law from regulating a driver's use of a mobile phone, we reverse in part the decision of the Court of Appeals.

Following a public hearing that received testimony on " the dangers and difficulties faced by citizens whose vehicles had been towed from private parking lots in Chapel Hill," the Chapel Hill Town Council sought to minimize any adverse effects related to nonconsensual towing and amended its ordinances accordingly. Chapel Hill, N.C., Code ch. 11, art. XIX, [hereinafter Towing Ordinance] § § 11-300, - 301 (2012). The amendments augmented notice and telephone response requirements, changed vehicle release requirements, and added storage and payment requirements. Id. § § 11-301 to -308. Additionally, Chapel Hill enacted provisions authorizing the Town Council to adopt maximum fees for towing vehicles and prohibiting charges for certain services. Id. § 11-304. Chapel Hill based these amendments on the power granted to it under N.C.G.S. § 20-219.2 (defining and penalizing wrongful towing from private lots) and N.C.G.S. § 160A-174 (granting a city general ordinance-making power to " prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens" ). Id. § 11-300.

Meanwhile, the Town Council considered the use of mobile telephones while driving and sought guidance from the Attorney General on the extent of its authority to regulate mobile phone usage. Noting that the General Assembly had already enacted three statutes policing mobile phone usage while driving, the Office of the Attorney General advised that " the regulation of traffic and motor vehicles is primarily a State function." The Attorney General's advisory letter opined that " an ordinance by the Town of Chapel Hill regulating motorists' use of cell phones, is preempted by State law and, therefore, unenforceable." Nonetheless, the Town Council passed an ordinance that prohibited anyone " 18 years of age and older" from using a mobile telephone " while operating a motor vehicle in motion on a public street or highway or public vehicular area." Chapel Hill, N.C., Code ch. 21, art. VII, § § 21-63, -64 (2012) [hereinafter Mobile Phone Ordinance]. The ordinance provided that " [n]o citation for a violation . . . shall be issued unless the officer issuing such citation has cause to stop or arrest the driver [for some other violation]." Id. § 21-64(e).

Page 368

Plaintiff operates a towing business within the town limits of Chapel Hill. Plaintiff contracts with property owners and lessees to remove illegally parked vehicles from private lots used by persons who patronize businesses or live on the premises. The nature of the towing industry requires that plaintiff constantly drive around town to monitor the parking lots from which he has agreed to remove vehicles. The Towing Ordinance requires that plaintiff notify the police department before he tows a vehicle and that he respond within fifteen minutes to messages left by owners of towed vehicles, causing plaintiff to violate the Mobile Phone Ordinance. While the requirements of the Towing Ordinance substantially increase plaintiff's operating costs, the fee cap limits plaintiff's ability to allocate those costs to those illegally parked. Consequently, plaintiff sought a declaratory judgment to invalidate both ordinances.

Plaintiff claimed that Chapel Hill lacks the authority to enact either the Towing Ordinance or the Mobile Phone Ordinance. According to plaintiff, N.C.G.S. § 20-219.2, one of the statutes undergirding the Towing Ordinance, violates Article II, Section 24(1)(j) of the North Carolina Constitution, which prohibits the General Assembly from enacting any local laws regulating, inter alia, labor or trade. Because N.C.G.S. ยง 20-219.2 states that it only applies to thirteen counties and their municipalities and to four named cities, plaintiff asserted that the statute is an unconstitutional local act. Plaintiff contended that, lacking sufficient enabling legislation, Chapel Hill is without any authority whatsoever to regulate towing. As for the Mobile Phone Ordinance, plaintiff adopted the position of the Attorney General's Office that State law preempts municipal restrictions on mobile phone usage ...


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