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Savage Towing Inc. v. Town of Cary

Court of Appeals of North Carolina

April 17, 2018

TOWN OF CARY, a Municipal Corporation, Defendant.

          Appeal by plaintiff from order entered 5 July 2017 by Judge Donald W. Stephens in Wake County No. 17 CVS 6017 Superior Court. Heard in the Court of Appeals 4 April 2018.

          Cary Law, by R. Daniel Gibson, for plaintiff-appellant.

          Teague Campbell Dennis & Gorham, LLP, by Brian M. Love and Jacob H. Wellman, for defendant-appellee.

          TYSON, Judge.

         Savage Towing Inc. ("Plaintiff") appeals the trial court's order denying its motion for preliminary injunction. We dismiss this interlocutory appeal without prejudice.

         I. Background

         Plaintiff is a towing business operating within Cary, North Carolina. For more than a decade, Plaintiff has provided accident recovery, roadside assistance, longdistance towing, and vehicle tows from private property. Plaintiff maintains contracts with several businesses and various private property owners to monitor their parking areas and remove improperly parked, abandoned, and trespassing vehicles.

         On 23 February 2017, the Cary Town Council unanimously approved the addition of Article IV (the "Ordinance") to Chapter 20 of the Town's Code of Ordinances, which places certain requirements and regulations on the non-consensual towing of vehicles from private parking lots located within the Town of Cary (the "Town"). The affidavit of Captain Steven Wilkins of the Cary Police Department indicates the purpose of the Ordinance was to address the volume and frequency of complaints received by the Cary Police Department arising from the non-consensual towing of vehicles. Between 2010 and 2016, the Cary Police Department received 148 complaints relating to non-consensual tows from private property. Nothing in the record indicates whether any of these complaints were related to incidents later proven to involve illegal towing. At oral argument before this Court, Plaintiff's counsel and the Town's counsel agreed that none of these complaints reflect or were found to constitute any improper conduct or actions by Plaintiff.

         The Ordinance requires, in part, towing companies and private property owners who hire towing companies to post signs either "at each entrance, " "every 50 feet of the frontage, " or "at each parking space" within a privately-owned parking lot. Cary, __ N.C. __, Code of Ordinances, art. IV, § 20-153(a) (2017). Towing companies must report to the Cary Police Department the make, color, license tag number, location the vehicle was towed from, and the location where the vehicle will be held within 15 minutes of towing the vehicle. Id. at § 20-154.

         Towing companies must respond immediately to calls from owners or operators of trespassing and removed vehicles or return calls within 30 minutes of receiving a message. Id. at § 20-155(a). A person with the authority to release a towed vehicle must report to the location of the vehicle within two hours of a phone call by a person requesting release of the vehicle, subject to exceptions for requests made between midnight and 6:00 a.m. Id. In addition to cash, towing companies are required to accept payment by major credit and debit cards and provide detailed receipts. Id. at § 20-155(c).

         Towing services must allow a vehicle owner access to the illegally parked and towed vehicle in order to remove the owner's personal property. Id. at § 20-156(b). Towing services must tow an illegally parked vehicle to a fenced, lighted, secured, and clearly signed lot within 15 miles from where the illegally parked vehicle was towed. Id. at § 20-157. The Ordinance provides civil and criminal penalties for any towing services and private property lot owners that violate its provisions. Id. at § 20-158.

         Plaintiff challenged the Ordinance by filing a verified complaint and motion for preliminary injunction on 15 May 2017, seeking: (1) a declaration that the Town's Ordinance is ultra vires; (2) a declaration that N.C. Gen. Stat. § 20-219.2 violates the North Carolina Constitution; (3) a ruling that the Town's Ordinance violates Plaintiff's rights to due process and equal protection under the Constitution of the United States and the North Carolina Constitution; and (4) a preliminary injunction barring the Town from enforcing the Ordinance.

         Plaintiff's motion for preliminary injunction was heard in Wake County Superior Court on 30 May 2017. At the hearing, Plaintiff argued the Ordinance violated its constitutional rights to due process and equal protection. The trial court denied the motion for preliminary injunction, concluding that Plaintiff "has failed to show there is a likelihood of success on the merits of its claims for relief . . . ." Shortly thereafter, Plaintiff timely filed notice of appeal. Plaintiff filed a petition for writ of supersedeas and motion for temporary stay on 31 May 2017, which petition and motion this Court denied by order dated 1 June 2017.

         The Ordinance became effective 1 June 2017. On 31 July 2017, Plaintiff filed another petition for writ of supersedeas and motion for temporary stay, which this Court also denied by order dated 4 August 2017.

         At the hearing on Plaintiff's motion for preliminary injunction, Plaintiff's counsel stated that all Plaintiff's arguments regarding the Ordinance are "unconstitutional as-applied arguments." However, Plaintiff's counsel conceded at oral argument before this Court that he had misspoken, and Plaintiff is making only a facial challenge to the Ordinance. Plaintiff's verified complaint, and its briefed and oral arguments, are consistent with a facial challenge. We analyze Plaintiff's arguments as such.

         II. ...

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