Council delays cell phone ban, moves ahead with towing ordinance

Jun. 17, 2013 @ 11:00 PM

The Town Council Monday pushed the effective date of its cell phone ban to Oct. 1 in anticipation of another possible challenge by a towing company that previously sued the town over the ban.

The ordinance was to go into effect June 24, but the council voted 7-1 to delay its effective date to give the state Supreme Court time to consider whether to grant George’s Towing and Recovery a discretionary review of an unfavorable ruling against the company by the state Court of Appeals.

 “I personally believe it’s unwise to tinker with this until we get some finality,” said Mayor Mark Kleinschmidt.

A three-judge Court of Appeals panel didn’t rule on the merit of the town’s ordinance last month. It instead said Superior Court Judge Orlando Hudson’s earlier ruling against the town was premature because no one had been charged with a violation when the towing company claimed the ban would do irreparable harm to its business if enforced.

Under the mobile phone ordinance, violations would only be enforced as a secondary offense, meaning a motorist could only be charged if found in violation of the ordinance after being stopped for some other offense such as running a red light.

The council, which agreed to continue the town’s education program about the dangers of distracted driving, heard from three citizens who spoke in support of the ban, including former councilwoman Penny Rich who led the effort to adopt the ban.

Rich encouraged the council to allow the ordinance to go into effect and review it in six months.  

“I would encourage you to leave the cell phone ordinance in place and review it like we do other ordinances in six months or a year,” Rich said. “Give it the chance to do the good it was originally intended to do.”

Responding to talk that the council might consider modifying the ordinance to allow hands-free use of cell phones, Joe Capowski, a former council member, told the council to follow the science that shows that using hands-free devices does not improve safety.

“There is no gain in safety by going hands free,” Capowski said.

Councilman Matt Czajkowski, the lone council member to vote against delaying the effective date of the ordinance, argued that the town should focus on enforcing the state law against texting and driving rather than adding another law that the town also wouldn’t enforce.

“We would be much better off if we as a town said we’re going to enforce the anti-texting law, but we’re not going to do that, we’re going to educate people on the danger of using cell phones in cars with the likelihood of anybody every being cited being between slim and non-existent,” Czajkowski said. 

George’s Towing also complained about amendments to the town’s towing ordinance, which could also be reviewed by the state Supreme Court. 

However, the council agreed that the ordinance and the amendments will be enforced beginning June 24.

The town has been operating without a towing ordinance since Hudson issued his order last August.

In the ensuing months, tow truck operators have been left to charge offending motorists as much or as little as they like to retrieve impounded cars towed from private lots in downtown.

The ordinance sets the maximum fee for towing a vehicle from a private lot at $125, establishes a $50 fee for vehicles released to an owner after being hooked to a tow truck but before it is towed and a $20-a-day storage fee after the first 24 hours.

The amended ordinance also mandates that tow truck drivers accept credit card payments as well as cash payments, that operators notify police when towing vehicles and restricts vehicles from being towed to lots farther than 15 miles outside of town limits.

In adopting the amendments, the town cited its authority under the state’s General Statutes granting municipalities’ general police powers to “prohibit, regulate, or abate acts, omissions, or conditions detrimental to the health, safety or welfare of its citizens.”

The judges agreed that the “Towing Ordinance is a valid exercise of the town’s police power” under GS 160A-174 (a).