May 4, 2012 | 3 min read

Restraining order puts Chapel Hill cell phone ban on hold

The battle in Chapel Hill, N.C., to prevent distracted driving caused by cell phone use has become tangled in a lawsuit over towing cars.

Just over five weeks after the North Carolina college town became the first municipality in the nation to ban all cell phone use while driving, a judge has issued an injunction delaying enforcement of the ban.

The ruling Wednesday by Judge Orlando Hudson is the result of a lawsuit by George King, owner of George’s Towing and Recovery company of Chapel Hill. The suit claims that because of the cell ban and other rules, the towing company won’t be able to do business.

^{Oregon DOT}

^{The challenge to Chapel Hill's ban on cell phone use while driving is focused more on the car-towing business than the main issue: distracted driving.}

The temporary restraining order lasts 10 days, with a hearing on the lawsuit set for Monday. That hearing could lead to a preliminary injunction, which would prevent enforcement of the cell ban while the issue is still being argued in the court system.

The cell phone talking-and-driving ban was to go into effect on June 1.

The foundation of the case, according to the King’s attorney Thomas Stark, is that a municipality does not have the authority to regulate cell phone use.

“The town doesn’t have the authority to pass the ordinance,” Stark said in a report by the New & Observer of Raleigh. He argued that a letter to the town from the N.C. attorney general’s office last year said that state authority overrides the power of the town to regulate cell use by drivers.

But the towing company’s lawsuit hauls in several issues along with a town’s alleged lack of authority over cell phone use. It also challenges a new towing ordinance passed by Chapel Hill, which regulates things such as towing fees, storage fees, equipment fees, and procedures for towing. The ordinance was to go into effect next Tuesday. Finally, the lawsuit takes on the state’s authority to regulate towing cars in the first place.

The company’s arguments include:

Chapel Hill has no authority to prohibit using a cell phone while driving, because the state legislature has not delegated that authority to the town.
Furthermore, the state itself doesn’t have authority to regulate commerce such as providing a towing service, because that is in violation of the N.C. Constitution.
Chapel Hill’s towing ordinance violates the state constitution because it would allow police to search towed car storage lots without a warrant.
A phone number is required to be posted on parking lot signs so that someone can call at any time to release a towed or immobilized vehicle. The phone must be answered by a person, and someone must be available to release the vehicle.
Tow truck operators must use their mobile phones in their vehicles to call the police department to report illegally parked vehicles they have towed.

Ah, what a tangle towing web they’ve woven.

The bottom line is: Can a towing company operate without its drivers driving around while talking on a cell phone?

It’s been done.

Do tow truck drivers have be available to take calls on a cell while their truck is in motion? I would think the call should go to the towing storage lot, not the tow truck. Do truck drivers have to call while they are driving to report a tow the police? I wouldn’t think that’s necessary.

Chapel Hill has been tossed a red herring with this challenge to its effort to make its streets safer. This distraction should not deter the town from its real goal: To prevent distracted driving and the dangers it presents.

Let’s hope that the hearing Monday will let this step toward safety go into effect on June 1, as was planned.

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