King v. Town of Chapel Hill

743 S.E.2d 666, 227 N.C. App. 545, 2013 WL 2395981, 2013 N.C. App. LEXIS 619
CourtCourt of Appeals of North Carolina
DecidedJune 4, 2013
DocketNo. COA12-1262
StatusPublished
Cited by1 cases

This text of 743 S.E.2d 666 (King v. Town of Chapel Hill) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Town of Chapel Hill, 743 S.E.2d 666, 227 N.C. App. 545, 2013 WL 2395981, 2013 N.C. App. LEXIS 619 (N.C. Ct. App. 2013).

Opinion

STEPHENS, Judge.

Factual Background and Procedural History

This case arises from the enactment of two ordinances by the Town of Chapel Hill (“Defendant” or “the Town”). The ordinances involve the regulation of towing practices and mobile phone usage. Plaintiff George King operates a towing business in the Town under the name “George’s Towing and Recovery” and filed a complaint against the Town on 2 May 2012, requesting (1) a judgment declaring the ordinances invalid and (2) preliminary and permanent injunctions barring their enforcement.

The trial court issued a temporary restraining order that same day and, six days later, ordered a preliminary injunction against enforcement of the ordinances. On 4 June 2012, Defendant filed its amended answer. On 15 June and 18 June 2012, respectively, Defendant and Plaintiff moved for judgment on the pleadings, alleging that there were no material issues of fact and judgment was proper as a matter of law. The case was heard on 2 August 2012. On 9 August 2012, the trial court issued its order and judgment granting Plaintiff’s request to permanently enjoin enforcement of the ordinances. In its order, the trial court made the following pertinent findings of fact and conclusions of law:

FINDINGS OF FACT
2. Defendant. . . enacted a towing ordinance, . . . which came into effect May 1, 2012, hereinafter “the Towing Ordinance.”
4. Defendant. . . also enacted an ordinance prohibiting the use of mobile phones while driving a motor vehicle,... [547]*547which was to become effective June 1, 2012, hereinafter “the Mobile Phone Ordinance.”
9. [The Towing Ordinance] sets a fee schedule, regulates the method of payment, and includes extensive sign and notice requirements for private lots, as well as specifications for a tow storage lot which the Chapel Hill Police Department will inspect once per year .... All towing operators are required to comply with this ordinance at the risk of civil and criminal penalties.
11. To comply with [the Towing Ordinance], Plaintiff is required to use a telephone to report to the police department when he removes an illegally parked vehicle before the vehicle is removed from the private property.
12. It is the nature of Plaintiff’s business to operate from trucks that are constantly driving to carry out their duties to their clients, to check the businesses’ parking lots, check video equipment, and to tow and travel to release vehicles.
13. The use of a mobile, phone by Plaintiff’s drivers is necessary to make the required phone calls to the police department while in their vehicles.
14. [B]ecause of Plaintiff’s mobile business, he must be able to use his mobile phone to respond to inquiries regarding vehicles that have been towed and need to be released.
15. [The Mobile Phone Ordinance] prohibits use of a mobile phone, either handheld or hands-free, while driving a vehicle.
16. Plaintiff will suffer irreparable harm if Defendant is allowed to enforce [the Towing Ordinance] and [the Mobile Phone Ordinance] due to the threat of prosecution for violation of any notice requirements or use of a mobile phone while driving, which is a necessary part of his business.
[548]*548CONCLUSIONS OF LAW
3. Article II[,] §[]24 (1)Q) of the North Carolina Constitution states: “The General Assembly shall not enact any local, private, or special act or resolution: [r]egulating labor, trade, mining[,] or manufacturingf.]”
4. The relevant enabling statute for the Towing Ordinance is N.C.[ Gen. Stat.] § 20-219.2. Defendant has conceded that [section 219] is a local law.
5. “Trade,” as used in Article II[,] §[]24[,] . . . has been defined ... as “a business venture for profit and includes any employment or business embarked in for gain orprofit[]”....
6. [Section 219] and the [Towing Ordinance]... regulate trade within the meaning of [Article II, § 24(1)Q)].
7. Because [section 219] is a local law regulating trade, it violates [Article II, § 24(I)(j)].
9. In the absence of [section 219], the Town[] has not been granted the authority to regulate towing from the General Assembly.
10. Plaintiff will suffer irreparable harm if Defendant is allowed to enforce [the Towing Ordinance] and [the Mobile Phone Ordinance] due to the threat of prosecution for violation of any notice requirements or use of a mobile phone while driving, which is a necessary part of his business.
12. The North Carolina General Assembly has enacted general laws regulating the use of mobile phones by all North Carolina drivers by proscribing the use of cell phones for texting and other media..., by prohibiting all use of cell phones by drivers under 18 years of age..., and by prohibiting all use of cell phones by anyone operating a school bus....
[549]*54913. In regulating mobile phone usage . . . , the General Assembly has enacted a comprehensive scheme of mobile phone regulation.
14. As a result..., the authority of [the Town] to enact the Mobile Phone Ordinance is preempted, and therefore the ordinance is void, and without force and effect.
16. As a result of the foregoing, Plaintiff is entitled to a declaratory judgment entering the conclusions set forth herein and a permanent injunction preventing enforcement of [the Towing Ordinance] and [the Mobile Phone Ordinance].

Accordingly, the trial court determined that (1) N.C. Gen. Stat. § 20-219.2 is -unconstitutional, (2) the Towing Ordinance is unconstitutional as an application of section 219, and (3) the Mobile Phone Ordinance is unconstitutional as preempted by State law enacted by the General Assembly. The court permanently restrained enforcement of both ordinances, and this appeal followed.

Standard of Review

Conclusions of law and issues of statutory construction are reviewed de novo on appeal. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citation omitted); Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) (citation omitted). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).

“When a party moves for judgment on the pleadings, he admits the truth of all well-pleaded facts in the pleading of the opposing party and the untruth of his own allegations insofar as they are controverted by the pleadings of the opposing party.” Pipkin v. Lassiter, 37 N.C. App. 36, 39, 245 S.E.2d 105

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Related

King v. Town of Chapel Hill
758 S.E.2d 364 (Supreme Court of North Carolina, 2014)

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Bluebook (online)
743 S.E.2d 666, 227 N.C. App. 545, 2013 WL 2395981, 2013 N.C. App. LEXIS 619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-town-of-chapel-hill-ncctapp-2013.