King v. Town of Chapel Hill

• Decision Date: 12 June 2014
• Docket Number: No. 281PA13.,281PA13.
• Citation: 758 S.E.2d 364
• Court: North Carolina Supreme Court
• Parties: George KING d/b/a George's Towing and Recovery v. TOWN OF CHAPEL HILL.

758 S.E.2d 364

George KING d/b/a George's Towing and Recovery

v.TOWN OF CHAPEL HILL.

No. 281PA13.

Supreme Court of North Carolina.

June 12, 2014.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 743 S.E.2d 666 (2013), reversing an order and judgment entered on 9 August 2012 by Judge Orlando F. Hudson, Jr. in Superior Court, Orange County. Heard in the Supreme Court on 17 March 2014.

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 General 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 vested with general police power to regulate or prohibit acts detrimental to their citizens' health, safety, or welfare. N.C.G.S. § 160A–174 (2013). Even so, that authority is limited in scope, constrained by State and federal laws, as well as by inherent fundamental rights. Because the Town of Chapel Hill exceeded its power to regulate vehicle towing by creating a fee schedule and by prohibiting towing companies from charging credit card fees, and because municipalities are preempted by State law from regulating a driver's use of a mobile phone, we reverse in part the decision of the Court of Appeals.

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 N.C.G.S. § 20–219.2 (defining and penalizing wrongful towing from private lots) and N.C.G.S. § 160A–174 (granting a city general ordinance-making power to “prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens”). Id. § 11–300.

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.” Nonetheless, 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 violation ... shall be issued unless the officer issuing such citation has cause to stop or arrest the driver [for some other violation].” Id. § 21–64(e).

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 allocate 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, N.C.G.S. § 20–219.2, one of the statutes undergirding the Towing Ordinance, violates Article II, Section 24(1)(j) of the North Carolina Constitution, which prohibits the General Assembly from enacting any local laws regulating, inter alia, labor or trade. Because N.C.G.S. § 20–219.2 states that it only applies to thirteen counties and their municipalities and to four named cities, plaintiff asserted that the statute is an unconstitutional local act. Plaintiff contended that, lacking sufficient enabling legislation, Chapel Hill is without any authority whatsoever to regulate towing. As for the Mobile Phone Ordinance, plaintiff adopted the position of the Attorney General's Office that State law preempts municipal restrictions on mobile phone usage while driving. Plaintiff insisted that several additions to the laws governing motor vehicles evidence the General Assembly's intent to create a statewide, comprehensive regulatory scheme, and thus the Mobile Phone Ordinance is void.

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 N.C.G.S. § 20–219.2 is a local law regulating trade in violation of Article II, Section 24(1)(j). Without addressing the Town's general ordinance-making power, the trial court found the Towing Ordinance void for lack of sufficient enabling legislation. Likewise, the trial court determined that the General Assembly had enacted a comprehensive scheme of mobile phone regulation that preempts the Mobile Phone Ordinance, voiding it as well. As a result, the trial court entered a permanent injunction barring enforcement of both the Towing Ordinance and the Mobile Phone Ordinance. The Town appealed.

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 N.C.G.S. § 160A–174. King v. Town of Chapel Hill, –––N.C.App. ––––, ––––, 743 S.E.2d 666, 675 (2013). The Court of Appeals specifically chose not to address the constitutionality of N.C.G.S. § 20–219.2. Id. at ––––, 743 S.E.2d at 675. Under a broad construction of N.C.G.S. § 160A–174, the Court of Appeals determined that “the Towing Ordinance was enacted to protect the citizens of the Town of Chapel Hill and provides a number of beneficial services to those citizens.” Id. at ––––, 743 S.E.2d at 675. In reversing the trial court's order, the Court of Appeals held “that the Towing Ordinance covers a proper subject for regulation under the Town's police power,” id. at ––––, 743 S.E.2d at 675, and therefore “falls within the purview of section 174(a),” id. at ––––, 743 S.E.2d at 674.

As for the Mobile Phone Ordinance, 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 mere 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 alsoN.C. Const. art. VII, § 1 (“The General Assembly ... may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.”). To ascertain the extent of a legislative grant of power, “we first must look to the plain language of the statutes themselves.” Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 811, 517 S.E.2d 874, 878 (1999) (citation omitted). When the enabling legislation “ ‘is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.’ ” Id. (quoting Lemons v. Old Hickory Council, BSA, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988)). But when a statute granting power to a municipality is ambiguous, the enabling legislation “shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect.” N.C.G.S. § 160A–4 (2013); accord Lanvale Props., LLC v. Cnty. of Cabarrus, 366 N.C. 142, 157, 731 S.E.2d 800, 811 (2012) (stating that N.C.G.S. § 160A–4 does not...