Council on track to approving towing-law changes

Dec. 06, 2012 @ 08:41 PM

City Council members on Thursday said they’re pleased by a proposed rewrite of the rules that govern tow-truck operators that work in Durham.

They scheduled the rules package for a Dec. 17 approval vote, on the way acknowledging that it might fall to an ongoing legal challenge from towers.

“We need more than simply a Libertarian approach to this issue,” Councilman Eugene Brown said. “There are a lot of angry citizens out there – some of whom deserve to be angry, not all.”

Proposed by City Manager Tom Bonfield, Police Chief Jose Lopez and other adminstrators, the rules package would require towers to notify police notice within 30 minutes after hauling off a car.

The changes also require towers to accept debit and credit cards in addition to cash as fee payments to release a vehicle, and sets a hard cap of $125 on the fee a tow company can charge for so-called nonconsensual tows from private property.

The rules modify an existing city ordinance that in parts is up to 48 years old.

But both the existing rules and the proposed changes are under threat because Durham’s senior resident Superior Court judge, Orlando Hudson, earlier this year tossed out a similar ordinance in Chapel Hill.

Hudson along the way ruled unconstitutional a state law that allows Durham and communities in a variety of other, mostly urban locales to regulate noncosensual tows.

Agreeing with lawyers for George’s Towing and Recovery, Hudson said the law violated a constitutional ban on using so-called “local” acts to regulate business. He in essence held that any towing regulation has to be statewide.

Chapel Hill officials have appealed that ruling and are getting help in that from the N.C. League of Muncipalities. An N.C. Court of Appeals ruling is expected sometime next year.

As things stand, “if you sit still, you might get sued,” City Attorney Patrick Baker said, acknowledging that the existing Durham ordinance is vulnerable. “If you amend it, you might get sued, on the exact same grounds.”

The lawyer who represented George’s Towing, Tom Stark, attended Thursday’s council meeting and said a couple of other tow companies had asked him to weigh in against the Durham ordinance.

“We don’t believe the city has the authority to regulate towing,” Stark said. “We have to remember here the [complaints] police get and members of the council get are from members of the public who have been towed. Let’s drop back and think about what happens there: A person gets towed because they were trespassing on private property.”

Nonconsenual tows are intensely controversial in Chapel Hill, where the focus of attention is on so-called “predatory towing” from private-business lots in the Franklin Street corridor.

Critics of towers there see what’s happening in Chapel Hill as sort of an extortion racket, as wreckers swoop in on a moment’s notice to haul off cars and demand cash payments for their release.

Similar complaints have cropped up from time to time in Durham. Bonfield noted that a nonconsensual tow often results in a call to 911 from a vehicle owner who thinks it’s been stolen.

The city already has a $125 limit on nonconsensual tow fees, but Lopez noted that it’s also sanctioned a variety of add-on charges that would go away under the new rules.

Officials conceded that Durham’s existing and proposed rules don’t require property owners to post signs warning that non-patrons are subject to being towed. The statute Hudson ruled unconstitutional covers that issue, Senior Assistant City Attorney Emanuel McGirt said.

Baker said he believes there’s separate legal authority for city towing rules that Hudson didn’t address in his ruling. Chapel Hill and the League of Muncipalities have argued likewise.

The Hudson-targeted statute was revised heavily by the N.C. General Assembly in 2010.

A bipartisan group headed by state Sen. Bob Rucho, R-Mecklenburg, pushed through changes that included a provision saying the statute “shall not be interpreted to pre-empt” the authority of cities and counties to regulate towing under authority derived from other state laws.

The revised statute passed the N.C House and the N.C. Senate by votes of 112-0 and 45-2, respectively.