Cell phone ban, towing ordinance go to Court of Appeals

Remember, the cell phone ban and towing ordinance that caused so much controversy last summer?

Well, the town gets a chance to convince a panel of N.C. Court of Appeals judges of the legal merits of the two today during a 1 p.m., hearing in Raleigh.

Superior Court Judge Orlando Hudson ruled last August that the town’s towing ordinance was an unconstitutional attempt to regulate trade.

Hudson also ruled that the cell phone ban adopted by the town is pre-empted by state law, which already regulates citizens’ use of cellphones while driving.

The town, which has been unable to enforce the towing ordinance or enact the cellphone ban, appealed Hudson’s rulings in October.  

The controversy arose when George King, owner of George’s Towing and Recovery of Recovery, complained that the ordinance and cellphone ban would do “irreparable harm” to his business.

 “We feel good about this case,” said Tom Stark, the attorney representing the towing company. “Judge [Orlando] Hudson got it right and we think the court will see the wisdom in his ruling.”

The council amended its towing ordinance to include a flat rate for car retrieval and to require tow companies to accept debit or credit cards as payment and to locate storage lots no more than 15 miles from the site of the tow.

The changes to the ordinance came in response to citizens’ complaints about predatory towing, most of them directed at George’s towing.  

The cellphone ban was also adopted in response to citizens’ complaints about what they say is the dangerous practice of talking on cellphones while driving.
The ordinance was supposed to go into effect June 1, 2012.

Sanitation 2

Another case involving the town will be before the state Court of Appeals on Tuesday, but the judges will not hear oral arguments in that one.

It involves a lawsuit filed against the town and Town Manager Roger Stancil by former sanitation workers Kerry Bigelow and Clyde Clark, who were fired in fall 2010 after residents alleged the two men engaged in threatening and intimidating behavior while on their routes.

Co-workers also accused Bigelow and Clark of similar behavior, and supervisors complained the two men were insubordinate.

Bigelow and Clark, however, contend that the firing came as a result of their union work and their complaints about unsafe working conditions.

And their lawsuit alleged that their firings violated their free speech rights. It also accuses the town of engaging in discrimination based on race.

Orange County Superior Court Judge Allen Baddour dismissed the men’s lawsuit last May without explanation.

Their attorney, Alan McSurely, filed a notice to appeal the decision with the state Court of Appeals in June. 

Dan Hartzog, an attorney hired by the town to represent it in the case, said a panel of three judges could render a written decision in the case in about 90 days.   
If the decision comes down in favor of Bigelow and Clark, the case will be sent back to the local court, Hartzog said.