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.
Law, by R. Daniel Gibson, for plaintiff-appellant.
Campbell Dennis & Gorham, LLP, by Brian M. Love and Jacob
H. Wellman, for defendant-appellee.
Towing Inc. ("Plaintiff") appeals the trial
court's order denying its motion for preliminary
injunction. We dismiss this interlocutory appeal without
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.
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.
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 §
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).
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 §
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.
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.
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.
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.