Town officials received a Durham judge’s order today rejecting Chapel Hill's towing and cell phone ordinances. (To read the order, scroll to the bottom of this post and clock on document.)
Mayor Mark Kleinschmidt said mid-morning that he had not yet read the order, but the Town Council could decide Monday whether to hold a special session to consider an appeal. The town has until Sept. 7 to file with the Court of Appeals.
“We don’t have a towing ordinance right now, and to me, that’s a problem,” Kleinschmidt said.
Durham Judge Orlando Hudson ruled Aug. 2 that the Legislature’s regulation of cell phone use while driving pre-empts Chapel Hill’s cell phone use ban.
Hudson also ruled that the town’s towing ordinance constitutes “regulating trade,” which is unconstitutional under state law.
“Plaintiff's rights will be violated by the enforcement of the Defendant's towing and cell phone ordinances,” the judge wrote.
The town’s towing fees and rules went into effect May 1 in response to complaints about “predatory towing” from private lots downtown. Tow truck companies were required to accept credit cards and report tows to police, among other rules. The council amended the ordinance in May, shortly after Hudson issued a preliminary injunction delaying enforcement of both the towing and cell phone bans.
The cell phone ban was scheduled to take effect June 1.
George’s Towing & Recovery sued the town, arguing the towing rules unconstitutionally regulated trade and kept drivers from using their cell phones to conduct business.
Hudson agreed with that argument.
That is the judge’s opinion but may not be a different judge’s opinion, Kleinschmidt said. If the town goes along with the order, it could lose authority to regulate other issues, he said. If the Appeals Court upholds the decision, the town might seek special authority from the General Assembly to enforce the towing ordinance, he said.
“The reason we have towing regulations is to protect the safety and welfare of our community and citizens,” Kleinschmidt said.
While the town has received a few towing complaints from residents since the judge’s decision, Kleinschmidt said that number could multiple in a few weeks.
“It’s summer. In two weeks, we are going to have 22,000 students and their families,” he said.