GEORGE KING D/B/A GEORGE‘S TOWING AND RECOVERY V. TOWN OF CHAPEL HILL
No. 281PA13
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 12 June 2014
367 N.C. 400 (2014)
NEWBY, Justice.
Cities and Towns—municipal power—nonconsensual towing The general authority to regulate nonconsensual towing from private lots flows from municipal power to protect citizen health, safety, or welfare.
- Cities and Towns—nonconsensual towing provisions—notice and signage requirements
Chapel Hill‘s authority to regulate towing was expansive enough to sustain notice and signage requirements. Given the tension between vehicle owners’ personal property rights and the right to remove vehicles illegally parked on private property, Chapel Hill‘s nonconsensual towing provisions appeared to be a rational attempt at addressing some of the inherent issues in towing аffecting citizen health, safety, or welfare.
- Cities and Towns—nonconsensual towing provisions—fee schedule
Chapel Hill exceeded its authority by imposing a fee schedule for nonconsensual towing from private lots. Unlike the signage and notice towing provisions, there is no rational relationship between regulating fees and protecting health, safety, or welfare, while a fee schedule provision implicates the fundamental right to “earn a livelihood.” Chapel Hill had the general authority to regulate towing by capping fees, but the town inappropriately placed the burden of increased costs incident to thе regulation solely on towing companies.
- Cities and Towns—nonconsensual towing—credit cards—fees
Requiring towing companies to accept credit and debit cards bears a rational relation to a broad interpretation of citizen safety or welfare by enabling vehicle owners to quickly and easily regain access to their vehicles. The same cannot be said for preventing tow truck operators from passing the cost of accepting credit cards on to those illegally parked.
Cities and Towns—towing ordinance—stricken provisions—severability The remainder of a towing ordinance was left intact after fee schedule and credit card fee provisions were stricken because their loss would not hinder the overall purpose of the ordinance and it was apparent that the town council would have enacted the ordinance even without the offending provisions.
- Cities and Towns—mobile phone ordinance—towing—challenge without violation—actionable claim
Plaintiff had an actionable claim challenging the Chapel Hill mobile phone ordinance, even though he had not been cited for a violation, because the ordinance‘s alleged substantial encumbrance on economic activity (towing) constituted a manifest threat of irreparable harm.
- Cities and Towns—mobile phone ordinance—towing—preemption by State
The legislature‘s comprehensive scheme regulating mobile telephone usage on the streets and highways precluded Chapel Hill from intruding into that sphere.
On discretionary review pursuant to
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 Gеneral Counsel, for North Carolina League of Municipalities, amicus curiae.
NEWBY, Justice.
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
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
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.” Nonеtheless, 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 vio-
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 allocаte 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,
After both parties moved for judgment on the pleadings, the trial court determined that Chapel Hill lacked the authority to enact either ordinance. The trial court found that
At the Court of Appeals, Chapel Hill argued, and the Court of Appeals agreed, that the Towing Ordinance fell within the Town‘s general powers under
As for the Mobile Phone Ordinаnce, the Court of Appeals determined that plaintiff was not entitled to challenge the ordinance because he had not been cited for a violation and because he failed to demonstrate that its enforcement would result in a “manifest threat of irreparable harm.” Id. at ___, 743 S.E.2d at 676. According to the Court of Appeals, if plaintiff wishes to challenge the validity of the Mobile Phone Ordinance, he must do so as a defense for his violation of the ordinance. Id. at ___, 743 S.E.2d at 676-77 (citation omitted).
We allowed plaintiff‘s petition for discretionary review to consider the scope of Chapel Hill‘s authority to regulate the towing industry and mobile phone usage. As a mеre creation of the legislature, the Town of Chapel Hill has no inherent powers. High Point Surplus Co. v. Pleasants, 264 N.C. 650, 654, 142 S.E.2d 697, 701 (1965). Accordingly, municipalities are limited to exercising those powers “expressly conferred” or “necessarily implied” from enabling legislation passed by the General Assembly. Id.; see also
Chapel Hill claims that the authority to enact the Towing Ordinance derives from
It is true that
“This Court has long recognized that the police power of the State may be exercised to enact laws, within constitutional limits, ‘to protect or promote the health, morals, order, safety, and general welfare of society.’ ” Standley v. Town of Woodfin, 362 N.C. 328, 333, 661 S.E.2d 728, 731 (2008) (quoting State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949)). The General Assembly has delegated a portion of this power to municipalities through
Yet, we are also mindful that “[a]n exertion of the police power inevitably results in a limitation of personal liberty, and legislation in this field ‘is justified only on the theory that the social interest is paramount.’ ” Ballance, 229 N.C. at 769, 51 S.E.2d at 734-35 (quoting State v. Mitchell, 217 N.C. 244, 250, 7 S.E.2d 567, 571 (1940)). Even a broad
[1] Before turning to the specific provisions of the Towing Ordinance at issue here, we first address whether
Plaintiff‘s remaining objections to the Towing Ordinance relate to Chapel Hill‘s notice requirements, fee schedule, and required payment options. We consider each of the challenged portions in turn to determine which, if any of them, constitute a valid exercise of Chapel Hill‘s general ordinance-making authority.
[2] Plaintiff first argues that the notice and signage requirements exceed the scope of Chapel Hill‘s power to protect citizen health, safety, or welfare. The Towing Ordinance mandates, inter alia, that signs be posted in certain locations around private parking lots, making it clear that the area is a “tow-away zone.” Towing Ordinance § 11-301. Lettering must be at least a certain size on a contrasting background, and the sign itself must be a minimum of twenty-four inches by twenty-four inches. Id. § 11-301(a). Chapel Hill asserts that these
[3] Plaintiff next challenges the fee schedule provision of the Towing Ordinance. According to plaintiff, the fee limit is lower than his actual operating costs and contends this limit on his ability to make a profit exceeds the power granted by
[a]ny towing or storage firm which tows or removes a vehicle pursuant to this article shall not charge the owner or operator of the vehicle in excess of the fees established in the fee schedule adopted annually by the town council. No storage fees shall be charged for the first twenty-four-hour time period from the time the vehicle is initially removed from the private property. The fees referred to herein shall be all inclusive; no additional fees may be charged for the use of particulаr equipment or services.
. . . .
The fees established by the town council shall be all inclusive. . . . No additional fees may be charged for using dollies, trailers, lifts, slim jims or any other equipment or service.
Towing Ordinance § 11-304.
Unlike the signage and notice provisions, there is no rational relationship between regulating fees and protecting health, safety, or welfare. Further, the fee schedule provision implicates the fundamental right to “earn a livelihood.” Roller v. Allen, 245 N.C. 516, 518-19, 96 S.E.2d 851, 854 (1957); see also State v. Harris, 216 N.C. 746, 759, 6 S.E.2d 854, 863 (1940) (“While many of the rights of man, as declared in the Constitution, contemplate adjustment to social necessities, some of them are not so yielding. Among them the right to earn a living must be regarded as inalienable.“). This Court‘s duty tо protect fundamental rights includes preventing arbitrary government actions that interfere with the right to the fruits of one‘s own labor.
Despite our expansive reading of
While Chapel Hill has the general authority to regulate towing, by capping fees, the town inappropriately places the burden of increased costs incident to the regulation solely on towing companies. Accordingly, we hold that Chapel Hill exceeded its authority by imposing a fee schedule for nonconsensual towing from private lots.
[4] Plaintiff further argues that Chapel Hill exceeded its general ordinance-making authority by requiring fees “be payable by cash, debit card and at least two (2) major national credit cards at no extra cost.” Towing Ordinance § 11-304(d). “Failure to accept credit or debit cards for payment is a violation of [the Towing Ordinance] and is punishable as a misdemeanor.” Id. Requiring towing companies to accept credit and debit cards bears a rational relation to a broad interpretation of citizen safety or welfare by enabling vehicle owners to quickly and easily regain access to their vehicles.
[5] Having held that the fee schedule and the prohibition on charging credit card fees exceed the power granted by
[6] We now turn to the Mobile Phone Ordinance and, as an initial matter, consider the Court of Appeals’ holding that plaintiff did not have an actionable claim. King, ___ N.C. App. at ___, 743 S.E.2d at 676-77. According to the Court of Appeals, because plaintiff had not been cited for violating the ordinance and because plaintiff failed to demonstrate that enforcement of the ordinance would result in “a manifest threat of irreparable harm,” he could not challenge the validity of the ordinance. Id. at ___, 743 S.E.2d at 676. We disagree and conclude that the ordinance‘s alleged substantial encumbrance on economic activity constitutes a manifest threat of irreparable harm sufficient to invoke the equity jurisdiction of the Court. High Point
[7] Thus, we now consider whether Chapel Hill exceeded its pоwer by prohibiting all adults from “us[ing] a mobile telephone or any additional technology associated with a mobile telephone while operating a motor vehicle in motion on a public street or highway or public vehicular area.” Mobile Phone Ordinance § 21-64(b). Consistent with the Attorney General‘s advisory letter, plaintiff contends that statewide mobile phone legislation precludes local regulation.
As discussed above,
When weighing whether State legislation preempts a particular field, our prеcedent dictates that we consider whether the General Assembly has expressed “a clear legislative intent to provide such a ‘complete and integrated regulatory scheme.’ ” Id. at 45, 565 S.E.2d at 176. As part of this analysis, we initially examine “the spirit of the act[] and what the act seeks to accomplish. Where legislative intent is not readily apparent from the act, it is appropriate to look at various related statutes in pari materia so as to determine and effectuate the legislative intent.” Id. at 46, 565 S.E.2d at 176-77 (alteration in original) (citations and internal quotation marks omitted).
At the outset, we note that regulation of highways and roads has generally been the prerogative of the State, not counties and citiеs. See Suddreth v. City of Charlotte, 223 N.C. 630, 631-32, 27 S.E.2d 650, 652 (1943) (noting that “the power to regulate the use of public roads and streets” is “peculiarly and exclusively a legislative prerogative“).
In contrast, the General Assembly has, on a statewide scale, repeatedly amended our Motor Vehicle Act to reduce the dangers associated with mobile phone usage on roads and highways. Section 20-137.3 states that “no person under the age of 18 years shall operate a motor vehicle on a public street or highway or public vehicular area while using a mobile telephone or any additional technology associated with a mobile telephone while the vehicle is in motion.”
Interpreted in pari materia, these statutes evidence the General Assembly‘s “intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.”
In conclusion, we recognize municipalities’ need to protect their citizens, but we are unwilling to construe our General Statutes to give municipalities unfettered power to regulate in the name of health, safety, or welfare, as “[t]here is nothing in government more dangerous to the liberty and rights of the individual than a too ready resort to the police power.” Harris, 216 N.C. at 763, 6 S.E.2d at 865; see also Mitchell, 217 N.C. at 250, 7 S.E.2d at 571 (“Whenever the police power is invoked there is a resulting delimitation of personal liberty.“). Under a broad reading of Chapel Hill‘s ordinance-making power, we hold that the Town is generally permitted to regulate vehicle towing and that it acted within its authority by enacting signage, notice, and payment requirements for towing from private lots. Even construing Chapel Hill‘s powers broadly, however, we hold that the Town exceeded those powers by imposing a fee schedule and prohibiting towing companies from charging credit card fees. Additionally, we hold that the legislature‘s comprehensive scheme regulating mobile telephone usage on our streets and highways precludes municipalities from intruding into this sphere wholly occupied by the State. Accordingly, the decision of the Court of Appeals reversing the trial court‘s issuance of a permanent injunction barring enforcement of both ordinances is reversed in part and affirmed in part. This matter is remanded to the Court of Appeals for further remand to the Superior Cоurt, Orange County, for proceedings not inconsistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.