Cellphone ban, towing rules nixed

Judge overturns efforts to outlaw talking while driving

By Lewis Kendall
Staff writer

DURHAM Chapel Hills mayor

and town council will regroup after a judge overturned the towns new rules outlawing all cellphone use while driving and regulating towing. Superior Court Judge Orlando Hudson ruled Thursday that Chapel Hills ban on both handheld and

hands-free cellphone calls was preempted by the legislature, which already regulates the use of cellphones while driving. Hudson also ruled that Chapel Hills towing ordinance constituted regulating trade and therefore is unconstitutional under the states laws. The town had set fees and required tow truck companies to accept credit cards and report all tows to the town, among other measures, in response to complaints about predatory towing downtown.

Mayor Mark Kleinschmidt and the Town Council will now consider drafting a new towing ordinance in line with Hudsons order. The town could also decide to appeal the judges decision. Former Town Council member Joe Capowski, who helped champion the cellphone ban, said Thursdays ruling belies the dangers of talking and driving. Nothing that happened in that courtroom this morning changed the fact that driving while talking on a cellphone is as dangerous as drunk driving, he said. It is going

to get banned, just like drunk driving is banned, but not before a lot of people die. Thomas Stark, the attorney representing the plaintiff, Georges Towing and Recovery, said he was pleased with the courts decision. We felt like it was a straightforward issue, Stark said. We will continue to do business, comfortable that the town of Chapel Hill cannot enforce these ordinances. Town of Chapel Hill attorney Ralph Karpinos left the courtroom without answering questions from
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reporters. Efforts to reach him for comment later were unsuccessful. Karpinos had advised the Town Council that the cellphone ban, which would have been the strictest in the nation according to his research, was ultimately a matter for a judge to decide. During the hearing, he argued that there is no case law to say either of these ordinances are invalid and that the General Assemblys failure to act (on banning all cellphone use while driving) in this matter shows they left the door open for local action. However, Assistant Attorney General Jess Mekeel wrote in November that the state has the preemptive authority to regulate cell phone use by motorists in North Carolina. Kleinschmidt said he was surprised by Hudsons rulings and worried about a lack of towing rules going forward. Im concerned that the Town of Chapel Hill doesnt have a regulation to protect our citizens from predatory towing, Kleinschmidt said. Right now the people deserve to have an ordinance in place. Kleinschmidt, who voted

against the cellphone ban in February, added: Its always been a debatable issue, and we will see that debate continue. We will wait on (Hudsons order and take the appropriate steps in response. Early this year, the Town Council voted on new towing regulations, including requiring towers to report each tow to the police before leaving the property. A month later the council approved the cellphone ban in a 5-4 vote. The law was to take effect June 1. Georges sued the town, arguing that its drivers needed to use cellphone while driving and that by regulating trade the new towing rules were unconstitutional. Stark said then that the town lacked the authority to pass such an ordinance. After a hearing in May, Hudson issued an injunction, putting a hold on both ordinances but adding that the plaintiff had a very strong likelihood of success based on the merits of his case. The state already makes it illegal for drivers under the age of 18 to talk on the phone, for bus drivers to use phones and for anyone to text while driving.
Kendall: 919-932-8760