Judge rules cell phone ban unconstitutional


At a hearing stemming from a lawsuit over Chapel Hill's cell phone ban and a new towing ordinance, attorneys for the Town of Chapel Hill asked Superior Court Judge Orlando Hudson to toss out an injunction -- saying the ordinances are meant to keep drivers safe and to fend off predatory towing.

However, attorneys for a Chapel Hill towing company said the suit was about the law and not safe driving.

"Oh no, it's not about that, it's just this ordinance, we felt like, stepped outside the bounds of what the legislature had done," plaintiff attorney Tom Stark said. "The legislature had enacted a statewide ban on texting, but chose not to regulate talking on the phones. When the state does a statewide statute that covers an area then a doctrine of pre-emption attaches and a local town can't decide it wants to do it differently."

The ban on the use of cell phones by drivers was to take effect June 1 after it was approved in April by the Chapel Hill town council in 5-to-4 vote following two years of consideration.

However in May, Judge Hudson issued the injunction blocking Chapel Hill's ban after listening to lawyers for the town and George's Towing & Recovery. The towing company argued that Chapel Hill's towing ordinance, which was already in effect, required that its tow truck operators use their mobile phones to respond to enquiries about cars that have been towed and need to be released.

Hudson ruled Thursday that the Town of Chapel Hill would remain under the injunction -- barring it from enforcing the ban.

"We are disappointed, said Chapel Hill Mayor Mark Kleinschmidt. "Towns and cities across North Carolina have been reasonably regulating towing companies for a long time. Our towing from private lots ordinance has been in place for more than a decade and was recently updated. We will continue to find ways to protect our citizens and visitors from predatory towing practices that have resulted in multiple complaints."

The Town of Chapel Hill issued a statement which stated that Kleinschmidt and the town council will consider holding a special meeting to consider a modified towing ordinance that would comply with the Judge's order. They may also determine whether to appeal the Trial Court decision.

The ban would outlaw the use of hand-held and hands-free cell phones by drivers. Cell phone use would be a secondary offense, meaning an officer must first stop a vehicle for another reason before issuing a citation for violating the ban. Violators would be fined $25.

North Carolina drivers already are prohibited from sending text messages while driving. Drivers under 18 are banned from any phone use.

The local ban is the first of its kind in the state.

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