NORTH CAROLINA SUPREME COURT ******************************************** ) ) ) ) ) ) ) ) ) ) ) *************************************************

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1 NO. 281PA13 DISTRICT FIFTEEN-B NORTH CAROLINA SUPREME COURT ******************************************** GEORGE KING, d/b/a GEORGE S TOWING AND RECOVERY, Plaintiff-Appellant, v. TOWN OF CHAPEL HILL, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) From Orange County No. COA ************************************************* DEFENDANT-APPELLEE S NEW BRIEF *************************************************

2 i INDEX TABLE OF CASES AND AUTHORITIES... iii STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS I. TOWING ORDINANCE... 4 II. MOBILE PHONE ORDINANCE... 6 ARGUMENT I. STANDARD OF REVIEW... 7 II. THE TOWING ORDINANCE IS AUTHORIZED UNDER THE TOWN S GENERAL POLICE POWER (APPELLANT S ISSUES I, II AND III)..8 III. THE COURT OF APPEALS CORRECTLY REVERSED THE TRIAL COURT AND DECLINED TO RULE ON THE VALIDITY OF APPELLEE S MOBILE PHONE ORDINANCE IN THIS PROCEEDING (APPELLANT S ISSUE IV) IV. APPELLEE S MOBILE PHONE ORDINANCE IS AUTHORIZED UNDER THE GENERAL POLICE POWER AND NOT PREEMPTED (APPELLANT S ISSUE V) CONCLUSION CERTIFICATE OF SERVICE APPENDICES: Appendix A: Regulation by Municipalities of Non- Consensual Towing from Private Lots... App-1

3 ii Appendix B: Regulation by States of Mobile Phone Use by Drivers... App-21

4 iii TABLE OF CASES AND AUTHORITIES Cases: Bowers v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994) City of Columbus v. Ours Garage and Wrecker Service Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002) Clark s Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966) Conner v. N.C. Council of State, 365 N.C. 242, 716 S.E.2d 836 (2011) Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d 172 (2002) Domestic Electric Service, Inc. v. City of Rocky Mount, 285 N.C. 135, 203 S.E.2d 838 (1974) Falls Sales Co. v. Board of Transportation, 292 N.C. 437, 233 S.E.2d 569 (1977) Goldston v. State, 361 N.C. 26, 637 S.E.2d 876 (2006) Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987) Green Tree Financial Servicing Corp. v. Young, 133 N.C. App. 339, 515 S.E.2d 223 (1999) Hodges v. Mecklenburg County Zoning Board of Adjustment, 148 N.C. App. 52, 557 S.E.2d 631 (2001), aff d in part, rev. improvidently allowed in part, sub nom. Tucker v. Mecklenburg County Zoning Board of Adjustment, 356 N.C. 658, 576 S.E.2d 324 (2003)... 8

5 iv Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971) King v. Town of Chapel Hill, No. COA , N.C. App., 743 S.E.2d 666, 2013 WL (N.C. Ct. App. June 4, 2013)... passim Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306 (1949) Kirschbaum v. McLaurin Parking Company, 188 N.C. App. 782, 656 S.E.2d 683 (2008) Lanier v. Town of Warsaw, 226 N.C. 637, 39 S.E.2d 817 (1946) Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012) Malloy v. Cooper, 356 N.C. 113, 565 S.E.2d 76 (2002) North Carolina Dept. of Correction v. North Carolina Medical Bd., 363 N.C. 189, 675 S.E.2d 641 (2009) Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981) Porter v. City of Atlanta, 259 Ga. 526, 384 S.E.2d 631 (1989) Ramey v. Easley, 178 N.C. App. 197, 632 S.E.2d 178 (2006) Schloss v. Jamison, 262 N.C.108, 136 S.E.2d 69 (1964)... 8 Slavin v. Town of Oak Island, 160 N.C. App. 57, 584 S.E.2d 100 (2003), rev. denied, appeal dismissed, 357 N.C. 659, 590 S.E.2d 271 (2003) Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999)

6 v Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203 (1974)... 8 Spruill v. Lake Phelps Volunteer Fire Department, 351 N.C. 318, 523 S.E.2d 672 (2000) State v. Town of Kill Devil Hills, 194 N.C. App. 561, 670 S.E.2d 341 (2009), aff d, 686 S.E.2d 151, (2009). 41, 43 Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964) Styers v. Phillips, 277 N.C. 460, 178 S.E.2d 583 (1971) Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650 (1943)... 17, 24, 28 Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686 (1983), appeal dismissed, 103 S.Ct (1983)... 7, 12 Town of Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898 (1956) Turner v. City of New Bern, 187 N.C. 541, 122 S.E.469 (1924) Walker v. City of Charlotte, 276 N.C. 166, 171 S.E.2d 431 (1970) Williams v. Blue Cross Blue Shield, 357 N.C. 170, 581 S.E.2d 415 (2003) Constitution of North Carolina: Art. II, Statutes: N.C. Gen. Stat. Chapter 1, Art N.C. Gen. Stat. Chapter , 34, 36

7 vi N.C. Gen. Stat. Chapter 20, Art. 3, Part N.C. Gen. Stat. Chapter 20, Art. 3, Part N.C. Gen. Stat. Chapter 143, Art. 12A N.C. Gen. Stat. Chapter 153A, Art N.C. Gen. Stat. Chapter 153A, Art N.C. Gen. Stat. Chapter 160A, Art passim N.C. Gen. Stat. Chapter 160A, Art N.C. Gen. Stat. Chapter 160A, Art N.C. Gen. Stat. Chapter 160A, Art N.C. Gen. Stat N.C. Gen. Stat. 18B N.C. Gen. Stat N.C. Gen. Stat N.C. Gen. Stat passim N.C. Gen. Stat A N.C. Gen. Stat , 34 N.C. Gen. Stat passim N.C. Gen. Stat N.C. Gen. Stat. 44A N.C. Gen. Stat

8 vii N.C. Gen. Stat. 153A N.C. Gen. Stat. 160A passim N.C. Gen. Stat. 160A , 40 N.C. Gen. Stat. 160A , 29 N.C. Gen. Stat. 160A N.C. Gen. Stat. 160A N.C. Gen. Stat. 160A N.C. Gen. Stat. 160A Session Laws: 2001 N.C. Sess. Laws N.C. Sess. Laws N.C. Sess. Laws , N.C. Sess. Laws 413, 10.1(a) N.C. Sess. Laws 413, 10.2(a) Municipal Codes: Chapel Hill, N.C. Code, Chapter 11, Article XIX... passim Chapel Hill, N.C. Code, Chapter 21, Article VII... passim Other Authorities: 7A Eugene McQuillin, The Law of Municipal Corporations, (3rd ed. updated October 2013)... 13, 18

9 NO. 281PA13 DISTRICT FIFTEEN-B NORTH CAROLINA SUPREME COURT ******************************************** GEORGE KING, d/b/a GEORGE S TOWING AND RECOVERY, Plaintiff-Appellant, v. TOWN OF CHAPEL HILL, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) From Orange County No. COA ************************************************* DEFENDANT-APPELLEE S NEW BRIEF *************************************************

10 - 2 - STATEMENT OF THE CASE This case involves a challenge to two separate ordinances enacted by the Defendant-Appellee Town of Chapel Hill s Town Council: 1. An ordinance regulating the non-consensual towing of vehicles from private parking lots. 2. An ordinance regulating the use of mobile phones by adult drivers of motor vehicles. Plaintiff-Appellant (Appellant) initiated this proceeding on 2 May Appellant asked the Court for a permanent injunction and a declaratory judgment that both ordinances exceeded the authority of Defendant-Appellee (Appellee) and are ultra vires and void. On 2 May 2012 the Trial Court entered a temporary restraining order. On 8 May 2012, following a hearing, the Trial Court entered a preliminary injunction restraining the enforcement of Appellee s towing ordinance, including the February 2012 amendments and the towing regulations which had been in place since (R p 66-67) The order also restrained enforcement of the mobile phone ordinance, which was scheduled to become effective 1 June On 15 June 2012 Appellee filed a Motion for Judgment on the Pleadings. On 18 June 2012 Appellant filed a Motion for Judgment on the Pleadings. On 2 August 2012 the Court heard oral arguments and announced a ruling granting Appellant s Motion

11 - 3 - for Judgment on the Pleadings and denying Appellee s Motion for Judgment on the Pleadings. The written Order was entered on 8 August The Court ruled: 1. N.C. Gen. Stat is unconstitutional under Article II, 24 of the North Carolina Constitution. 2. The Town s towing ordinance is unconstitutional and void. 3. The Town s mobile phone ordinance is unconstitutional and void. The Superior Court entered a permanent injunction restraining enforcement of both ordinances. The Town appealed the Superior Court s determination to the North Carolina Court of Appeals. On 4 June 2013, the Court of Appeals: 1. Reversed the Trial Court s order regarding the Town s towing ordinance and determined that the towing ordinance is within the Town s authority under the general police power in Chapter 160A, Article 8, Section 160A-174(a). Having so held, the Court of Appeals found it unnecessary to address the constitutionality of N.C. Gen. Stat King v. Town of Chapel Hill, No. COA , slip op. at 28, N.C. App.,, 743 S.E.2d 666, 675, 2013 WL (N.C. Ct. App. June 4, 2013). 2. Reversed the Trial Court s order regarding the Town s mobile phone ordinance. The Court determined that Appellant was not subject to a

12 - 4 - manifest threat of irreparable harm through enforcement of the mobile phone ordinance. The Court expressed no opinion on the validity of the mobile phone ordinance and said that if the Appellant wishes to challenge the validity of the Mobile Phone Ordinance, he must do so in the context of his own case. Slip op. at 32, 743 S.E.2d at On 7 November 2013 this Honorable Court entered its Order allowing Appellant s Petition for Discretionary Review of the decision of the North Carolina Court of Appeals. The Court s Order also granted the Appellee Town s Motion to Dismiss the Appellant s Notice of Appeal for lack of a substantial constitutional question. STATEMENT OF THE FACTS I. TOWING ORDINANCE The Chapel Hill Town Council on 13 February 2012 enacted a regulatory ordinance revising the Town s rules governing the non-consensual towing of vehicles from private lots. The ordinance amendment enacted in February 2012 includes regulations related to the posting of warning notices on private property and requirements for towing companies which remove cars parked in violation of those warnings. (R pp 60-64) The amendment was enacted after the Town received a number of citizen concerns related to towing practices where cars were towed from parking lots when the vehicle operators walked off the property to conduct

13 - 5 - business elsewhere in the area of downtown Chapel Hill. (R p 30, para. 7; p 41, Eighth Defense) Appellant is the owner of a towing company which manages parking lots for private businesses in Chapel Hill. This includes removing vehicles parked on the premises of these businesses when the passengers of the vehicles are not patronizing those specific businesses. (Appellant s Br. p 4) Following the filing of Appellant s Complaint on 2 May 2012 and the entry of the preliminary injunction (R p 35) on 8 May 2012, Appellee made two modifications to its towing ordinance in direct response to the issues raised by Appellant s Complaint: 1. On 14 May 2012 the Town Council enacted an amendment to eliminate a requirement that a phone call from a person whose vehicle had been towed to the tow company be immediately answered. This addressed Appellant s concern (R p 8) that the towing ordinance put a tow truck driver in a potential position of being required to answer a phone while driving (and, thus, in a manner not in compliance with the Town s mobile phone ordinance). In its place, the towing ordinance now provides that a phone call may go to an answering machine with the stipulation that the call be returned within fifteen minutes. This allows a tow truck driver of a moving vehicle a reasonable opportunity to safely stop before being

14 - 6 - obligated to return a call. (R pp 45-47) 2. On 30 May 2012, in partial response to concerns raised by Appellant s complaint, the Town Council enacted an amendment to reduce the signage required in order for a vehicle to be towed from a private lot. (R pp 49-50) On 31 May 2012, Appellee answered the Complaint. In its answer Appellee admitted that N.C. Gen. Statute Sec is one of the statutes providing the legal authority for the Town s towing ordinance. (R p 39, para. 13; p 40, para. 33) Appellant did not file any further pleadings in this case in response to these amendments to the towing ordinance. II. MOBILE PHONE ORDINANCE Appellee s Town Council on 26 March 2012 enacted a new separate ordinance making use of a mobile phone by a driver, eighteen years of age or older, of a moving motor vehicle an infraction subject to a $25.00 penalty. Mobile phone use by a driver constitutes a secondary offense : a driver cannot be issued a citation for violating this ordinance unless the driver has been stopped for proper cause related to some other traffic or criminal violation. (R pp 72-74) The ordinance as enacted carried a 1 June 2012 effective date. (Prior to drafting a proposed ordinance regulating use of mobile phones, the Town requested an opinion from the North Carolina Attorney General (R p 51) with

15 - 7 - respect to its authority to do so. In response the Town received an advisory letter in November (R p 28) The ordinance was completed and enacted months later following consideration of issues raised by that letter.) Enactment of the mobile phone ordinance followed the Council s conduct of a public hearing and the receipt of information indicating that the use of mobile telephones by operators of motor vehicles is detrimental to the safety of the citizens of the Town and that such use adversely affects driver performance as a result of the cognitive distractions associated with mobile telephone tasks. (R p 72) ARGUMENT I. STANDARD OF REVIEW Both parties filed motions for judgment on the pleadings, putting before the Court for review the questions of whether the ordinances are within Appellee s statutory and constitutional authority. Town of Atlantic Beach v. Young, 307 N.C. 422, 298, S.E.2d 686 (1983); appeal dismissed, 103 S.Ct (1983). When a municipal ordinance is challenged as being beyond the government s authority to enact on statutory or constitutional grounds, the question is one of law. Clark s Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966). When the validity of a municipal ordinance is assailed, the only question for the

16 - 8 - courts is whether the legislative body had the power to enact the ordinance. Id. at 531, 151 S.E.2d at 8. The standard of review for questions of law is de novo. Hodges v. Mecklenburg County Zoning Board of Adjustment, 148 N.C. App. 52, 56, 557 S.E.2d 631, (2001), aff d in part, rev. improvidently allowed in part sub nom. Tucker v. Mecklenburg County Zoning Board of Adjustment, 356 N.C. 658, 576 S.E.2d 324 (2003). II. THE TOWING ORDINANCE IS AUTHORIZED UNDER THE TOWN S GENERAL POLICE POWER (APPELLANT S ISSUES I, II AND III) A. A Municipal Ordinance is Presumed Valid There is a presumption that an ordinance is a proper use of a municipality s police powers. Schloss v. Jamison, 262 N.C. 108, 115, 136 S.E.2d 691, 696 (1964). The burden is upon the complaining party to show its invalidity or inapplicability. [W]hen the legislative body undertakes to regulate a business, trade, or profession, courts assume it acted within its powers until the contrary clearly appears. Smith v. Keator, 285 N.C. 530, 535, 206 S.E.2d 203, 206 (1974). Appellant s Complaint (R pp 3-14) presented no challenge to the Town s towing ordinance as a whole, or any specific provision thereof, under a constitutional due process or reasonableness argument or any other theory. Rather, the Complaint only presented a broad challenge alleging: a) that the only enabling legislation for Appellee s towing ordinance, N.C.

17 - 9 - Gen. Stat , is unconstitutional. (Compl. Count Three, para ) (R pp 9-10); and b) in the alternative, Appellee s towing ordinance is ultra vires because it exceeds the statutory authority granted by N.C. Gen. Stat (Compl. Count Five, para ) (R pp 10-12) The Trial Court: a) found that the only enabling statute for the Towing Ordinance is N.C. Gen. Stat ; b) concluded that that statute is unconstitutional; and, c) determined that the Town s Ordinance is without any other legal authority and is also unconstitutional. (R p 85) The Court of Appeals found authority to support the towing ordinance in the general police power delegated to municipalities and found it unnecessary to consider the constitutionality of N.C. Gen. Stat or the other statutes cited by Appellee as enabling legislation for the ordinance. Slip op. at 28, 743 S.E.2d at 675. Upon discretionary review, if this Court now determines that the analysis and opinion of the Court of Appeals regarding the scope of the police power merit modification, the conclusions of the Court of Appeals in this case, Appellee submits, are sound and should be affirmed. The Town s towing ordinance is an

18 authorized exercise of the general police power as delegated to municipalities by the General Assembly. B. The General Assembly Has Expressly Acknowledged the Authority of Local Government to Regulate Appellant s Towing Business N.C. Gen. Stat is a criminal statute, Kirschbaum v. McLaurin Parking Company, 188 N.C. App. 782, 787, 656 S.E.2d 683, 686 (2008) which states that it is unlawful for an unauthorized person to park in a private parking space provided that the private parking lot contains certain signage. Its application is limited to certain local jurisdictions. N.C. Gen. Stat (c). Under the statute, if the signage called for by the statute is installed, a person parking a vehicle on private property can be charged with an infraction. The statute allows a vehicle to be removed from a private lot and provides protection to the removing party (such as the Appellant) from liability for damages for the removal. In 2010 the North Carolina the General Assembly removed any question as to the authority of local governments to regulate non-consensual towing from private lots with the enactment of Session Law , in part adding a new paragraph (d) to N.C. Gen. Stat : The provisions of this section shall not be interpreted to preempt the authority of any county or municipality to enact ordinances regulating towing from private lots, as authorized by general law. Thus, the General Assembly in 2010 recognized that the general statutory authority

19 it has delegated to counties and cities incorporates the power to enact regulations on the towing of vehicles from private lots. 1 While not directly addressing N.C. Gen. Stat in its opinion, the Court of Appeals determination that the general police power in N.C. Gen. Stat. 160A-174(a) authorizes the Town to enact regulations on the non-consensual towing of vehicles from private lots is consistent with N.C. Gen. Stat (d) and the intent of the General Assembly. C. The Towing Ordinance is Within the Town s Authority under Chapter 160A, Article 8 The North Carolina General Assembly delegated general police power authority to municipal corporations through the enactment of Article 8 of Chapter 160A of the General Statutes. The general statutory standards for exercise of a municipality s police power are in N.C. Gen. Stat. 160A-174(a): 160A-174. General ordinance-making power. (a) A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances. The Chapel Hill Town Council concluded that the enactment of the towing ordinance would be an appropriate action to take in order to improve the safety and welfare of citizens, residents and visitors within the Town of Chapel Hill. (R p 66) 1 This 2010 amendment effectively moots arguments Appellant now makes to this Court with respect to Session Law (Appellant s Brief p 17)

20 The Court of Appeals discussed the provisions of the Town s Towing Ordinance in some detail and concluded that the ordinance was enacted to protect the citizens of the Town of Chapel Hill and provides a number of beneficial services to those citizens. The Towing Ordinance, the Court of Appeals determined, covers a proper subject for regulation under the Town s police power. Slip op. at 28, 743 S.E.2d at 675. An array of other municipal actions have been upheld under N.C. Gen. Stat. 160A-174(a). Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987) (indicating that a town ordinance requiring paved off-street parking was a valid exercise of municipal power under N.C. Gen. Stat. 160A-174(a)). Accord, Town of Atlantic Beach v. Young, supra. Slavin v. Town of Oak Island, 160 N.C. App. 57, 60, 584 S.E.2d 100, 102 (2003), rev. denied, appeal dismissed, 357 N.C. 659, 590 S.E.2d 271 (2003). Relying on the general police power and this authority, municipalities throughout North Carolina have ordinances regulating the towing of vehicles removed from private lots without the consent of the owners of those vehicles. See, for example, codes for the cities of Asheville, Charlotte, Raleigh and Wilmington and the Town of Carrboro in Appendix A. The decision of the Court of Appeals with respect to the towing ordinance in this case is consistent with decisions from other jurisdictions. Municipal authority

21 to regulate tow truck operators and the towing of vehicles from private lots, including the requirement for warning signs, is generally recognized as being within a municipality s police power authority. See McQuillin, The Law of Municipal Corporations, Sec (3rd ed. updated October 2013) citing federal case law and law from other states: A municipality may prohibit towing firms from removing unauthorized vehicles from private parking areas unless the towing company has first posted prominent signs warning car owners that unauthorized vehicles will be towed from the premises and informing the owners of the identity of the towing firm and the location at which towed cars can be found. Citing VRC LLC v. City of Dallas, 460 F.3d 607 (5th Cir. 2006), City of Chicago v. Pioneer Towing Inc., 73 Ill. App. 3d 867, 392 N.E.2d 132 (1st Dist. 1979); Cade v. Montgomery County, 83 Md. App. 419, 575 A.2d 744 (1990). Further, a municipality may require that towing services post signs indicating their towing fees. Citing Porter v. City of Atlanta, 259 Ga. 526, 384 S.E.2d 631 (1989). The municipality may also require that towing service operators accept insured checks and credit cards in payment. Id. Local regulation of tow trucks has further been determined not to violate constitutional guarantees of equal protection and due process. Citing Interstate Towing Association, Inc. v. City of Cincinnati, Ohio, 6 F.3d 1154 (6th Cir. 1993). Id. at 538. Decisions of the United States Supreme Court and the North Carolina Court of Appeals recognize that public safety concerns are a valid basis for state and local regulation of the operation of private wrecker services. See City of Columbus v. Ours Garage and Wrecker Service Inc., 536 U.S. 424, 122 S.Ct.

22 , 153 L.Ed.2d 430 (2002) (holding that under federal law states may delegate to municipalities the states authority to establish safety regulations governing tow trucks); Ramey v. Easley, 178 N.C. App. 197, 632 S.E.2d 178 (2006) (upholding North Carolina Highway Patrol regulations that set requirements a private wrecker service needed to meet in order to be included and remain on the highway patrol s wrecker rotation services list). D. The Towing Ordinance is a Lawful Exercise of Town s Authority under N.C. Gen. Stat. 160A-194 One of the other statutes under Article 8, Chapter 160A of the General Statutes, Delegation and Exercise of the General Police Power, is N.C. Gen. Stat. 160A-194, which begins as follows: A city may by ordinance, subject to the general law of the State, regulate and license occupations, businesses, trades, professions, and forms of amusement or entertainment and prohibit those that may be inimical to the public health, welfare, safety, order, or convenience. This statute authorizes cities, by ordinance, to regulate businesses and trades. Appellant alleges that his business falls within these categories. (R p 3, para. 1; p 9, para. 31) As such, it is subject to regulation under the authority of this statute. Assuming arguendo that N.C. Gen. Stat. 160A-174, N.C. Gen. Stat. 160A-194 and N.C. Gen. Stat (d) are not sufficient authority for the Town s towing ordinance, Appellant s position regarding the scope of the delegated police power is directly contrary to Section 160A-177 of the North

23 Carolina General Statutes, which states: The enumeration in this Article and other portions of this Chapter of specific powers to regulate, restrict or prohibit acts, omissions, and conditions shall not be deemed to be exclusive or a limiting factor upon the general authority to adopt ordinances conferred on cities by G.S. 160A-174. Accord, King v. Town of Chapel Hill, slip op. at 20-21, 743 S.E.2d at 673. E. This Towing Ordinance Falls within Police Power Authority An examination of the provisions of the Town s Towing Ordinance demonstrates its connection to the statutory authority granted by Article 8 of Chapter 160A as cited supra. In enacting the May 2012 amendments the Council made several findings as to its purposes for enacting the towing regulations, including the following: (R pp 45, 46) [S]ome practices related to the non-consensual towing of motor vehicles from private property have resulted in the public and members of the towing industry being exposed to harm; and [T]he Chapel Hill Town Council desires to minimize and control the harmful and adverse effects that occur during the non-consensual towing of motor vehicles. New notice requirements enacted in 2012 in response to the citizen concerns, described in the Statement of Facts, supra, serve two purposes in promoting the public welfare: they can reduce the volume of unlawful parking of automobiles on private lots; and, they can provide citizens with information as to

24 how to locate their towed vehicles. To ensure that persons are on notice, the Ordinance requires signs to be posted at lot entrances and at specified intervals where parking spaces are abutting the lot perimeter. (R p 66) Other substantive provisions, including those that have been in effect for several years and those enacted in 2012, demonstrate that they are consistent with the Council s findings and the police power authority. Tow operators are required to accept cash, debit and credit card payments for the fees associated with the towing. (R p 69) Multiple forms of payment allow for a vehicle owner to quickly re-acquire a towed vehicle. If a vehicle is towed during the nighttime hours, an individual may have trouble locating cash or a cash machine. In addition persons carrying large amounts of cash in the nighttime and to remote locations are at risk. Tow operators are required to provide detailed receipts and a towing information sheet in the interest of providing the public with information as to the reason for their vehicles being towed and to the specific components of the towing regulations. (R p 68) This information can serve to prevent conflicts between unknowledgeable citizens and tow operators. The Ordinance requires that tow operators notify the police department when towing a vehicle. (R p 69) The purpose of this regulation is to ensure that the vehicle is not listed as a stolen vehicle when towed or in the alternative can be quickly listed as stolen when it is missing and has not been towed. Such

25 notification prevents the unnecessary filing of stolen vehicle reports which allows for the efficient use of law enforcement resources and prevents the entry of vehicles into the National Criminal Information (NCIC) Data Base. The Ordinance also sets security, lighting and signage safety standards for tow storage lots. (R pp 69-70) These safety specifications are directly related to protecting the personal private property of citizens and the personal safety of a citizen who must visit the tow storage lot to reacquire his or her vehicle. 2 The Supreme Court of Georgia aptly described the appropriateness of 2 Appellant s arguments on appeal (Appellant s Br. p 27 et seq.) regarding the reasonableness of the Town s specific regulations (such as the amount of tow fees, number of signs, or location of a tow lot) under the general police power were not raised by the Complaint and not considered by the Trial Court or the Court of Appeals. This Court may decide to decline to consider them at all. Falls Sales Co. v. Board of Transportation, 292 N.C. 437, 443, 233 S.E.2d 569, 573 (1977). Moreover, confirmation in this case that North Carolina municipal governments have, in general, statutory authority to regulate the nonconsensual towing of private vehicles from private property does not preclude Appellant or any other person from challenging any specific regulation at some later date. However, if this Court determines that it should now consider such an argument in this appeal involving cross-motions for judgment on the pleadings, the Town s regulations should be affirmed because of the presumption of validity of ordinances and because the record does not show the regulations as a whole, or any specific provisions of the ordinance, bear no relation to public needs or that they constitute a clear invasion of personal or property rights. See Turner v. City of New Bern, 187 N.C. 541, 122 S.E.2d 469 (1924); Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964). Judicial interference is appropriate, under this due process analysis, only when an ordinance is so unreasonable, oppressive and subversive of individual rights that it carries inference of an attempted abuse of power, something Appellant did not allege in his pleadings. See also Suddreth v. City of Charlotte, 223 N.C. 630, 634, 27 S.E.2d 650, 653 (1943): The rule is that the mere fact of pecuniary injury does not warrant the overthrow of legislation of a police character.

26 governmental regulation of non-consensual towing in Porter v. City of Atlanta, supra: The business activity involved here goes beyond that of providing a service to property owners upon whose land cars are parked without permission. It reaches into an area generally reserved to governmental authorities because the ordinance allows the licensee to summarily deprive the automobile owner of the use of his property. When a governing authority grants such an oppressive right, it must reserve unto itself the power to limit the methods and extent of the exercise of that right. We therefore hold that the ordinances at issue here are clearly reasonable and valid. Porter at 528, 384 S.E.2d at 634. Accord, McQuillin, supra and cases cited therein. The Court of Appeals discussed the provisions of Appellee s towing ordinance at length (Slip op. at 24-28, 743 S.E.2d at ) and properly concluded that the various provisions are all part of an ordinance that is a valid exercise of the Town s police power. This Court s recent decision in Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012) does not conflict with the Court of Appeals conclusion in this case. Lanvale considered whether a county had authority to enact an adequate public facilities ordinance (APFO) that conditioned approval of new residential construction on payment of a fee to subsidize school construction. The Court rejected an argument that the County could enact its APFO under the authority delegated to counties to enact zoning ordinances. The County s enabling statute for zoning authority is in Article 18 of Chapter 153A. Article 6 of

27 Chapter 153A delegates to counties general ordinance-making power. (Municipal zoning authority is likewise in a separate Article (19) of Chapter 160A.) This Court ruled in Lanvale that the unambiguous authority in the County zoning authority required the Court to give a statute its plain and definite meaning. Here, the Court of Appeals correctly noted the exercise of the police power may be broader under some delegated statutory authority than under others, depending on the specific language in the General Assembly s enabling legislation. See, e.g., slip op. at 21, 743 S.E.2d at 673. Other cases cited by Appellant are similarly distinguished. For example: a) Bowers v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994) involved whether a municipality had the authority to enter into a contract related to separation allowances for its law enforcement employees under Article 12A of Chapter 143, not a matter under the general police power in Article 8 of Chapter 160A; and b) Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981) likewise involved a statute outside of the general police power, one dealing with restrictions on sales of property under the Urban Redevelopment Law, Article 22 of Chapter 160A. Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 517 S.E.2d 874 (1999) (Appellant s Br. pp 21-22) does not address a municipality s authority

28 to enact an ordinance subject to its general police power under N.C. Gen. Stat. 160A-174(a). Rather, the Court in Smith Chapel reviewed a municipal ordinance passed pursuant to N.C. Gen. Stat. Chapter 160A, Article 16, Public Enterprises, and specifically, N.C. Gen. Stat. 160A-314, relating to the collection of stormwater utility fees. See Smith Chapel, 350 N.C. at 809, 517 S.E.2d at 877. The Court noted that this function is proprietary rather than governmental. Id. at 815, 517 S.E.2d at 881. Further, the Court in Smith Chapel held that Durham s ordinance violated an explicit limitation set forth in the enabling statute. Id. at 812, 517 S.E.2d at 879. Appellant argues (Appellant s Br. pp 30, 37) that towing companies have a lien on any illegally parked vehicle they tow from private property pursuant to N.C. Gen. Stat. 44A-2. The basis for this, he asserts, is an express or implied contract with the owner or legal possessor of the vehicle. Appellant does not state whether this purported contract is express or implied or whether it is with the real property owner as legal possessor or with the owner of the vehicle. However, Appellant apparently contends that this authority to charge a fee for towing somehow acts to exclude any local police power regulation of the methods and fees of towing companies and even the authority acknowledged by the General Assembly with the Session Law adding paragraph (d) to N.C. Gen. Stat (supra p 10) For all of the reasons set forth in this brief, Appellant is

29 incorrect. Moreover, nothing in the Record or in Appellant s brief to this Court demonstrates that there is any implied contract between his company and the owners of the vehicles being towed or that a real property owner, by the mere parking of a private vehicle on his property without permission, becomes the legal possessor of the vehicle for purposes of N.C. Gen. Stat. 44A-2(d) capable of acting as the contracting party for the vehicle. Compare: Green Tree Financial Servicing Corp. v. Young, 133 N.C. App. 339, 515 S.E.2d 223 (1999), where legal possession of a mobile home was established after a judgment of summary ejectment and a writ of possession was obtained; and the two cases cited in Green Tree: Case v. Miller, 68 N.C. App. 729, 315 S.E.2d 737 (1984), and State v. Davy, 100 N.C. App. 551, 397 S.E.2d 634 (1990). In those cases, the Court in Green Tree said: [W]e held that a storage or towing company may obtain a lien over a motor vehicle under N.C. Gen. Stat. 44A-2(d) when the company is directed by a sheriff to tow or store that vehicle. These holdings are analogous to the case sub judice because they involve an implied contract with a legal possessor, i.e., the sheriff, to tow and store a vehicle in a situation whereby the legal possessor has no intention of paying the requisite towing and storage costs. Green Tree 133 N.C. App. at 342, 515 S.E.2d at 225. Thus, Appellee submits, Appellant has not established he has any contractual basis for his lien under N.C. Gen. Stat. 44A-2. While Appellant does have a lien upon towing a vehicle he is

30 not insulated from reasonable police power regulation by the Town based on the statutes and case law noted. Appellant contends the Court of Appeals decision conflicts with this Court s ruling in Williams v. Blue Cross Blue Shield, 357 N.C. 170, 581 S.E.2d 415 (2003). (Appellant s Br. pp 31-33) Williams involved a local act requested by and enacted for Orange County authorizing the enactment of a civil rights ordinance. The Williams Court rejected a claim that the ordinance was authorized under the general police power of the County, noting that the ordinance gave a private citizen subpoena power and the right to sue, creating a civil relationship and concomitant private cause of action by one citizen against the another. Id. at , 581 S.E.2d at 430. Despite Appellant s assertions to the contrary (Appellant s Br. pp 31-33) the Court of Appeals correctly found no such right of action exists under the towing ordinance. Slip op. at 23, 743 S.E.2d at 674. The provisions of the towing ordinance providing for possible equitable action are consistent with the enabling legislation, N.C. Gen. Stat. 160A-175 on enforcement of police power ordinances. Paragraph (d) of that statute is part of the grant of authority empowering cities and towns to enforce their ordinances and authorizes equitable remedies. The second sentence of N.C. Gen. Stat. 160A- 175(d) makes it clear that these enforcement tools are for the cities and towns, not private parties.

31 The Court of Appeals decision in this case does not introduce a new and very troubling constitutional issue or a novel legal standard. (Appellant s Br. p 40) The Court of Appeals recognized that the State Legislature has determined, through its enactment of Section 160A-4 and its counterpart for counties, Section 153A-4, that those powers granted by the Legislature to local governments should be broadly interpreted, while also recognizing that specific statutory limitations on such authority established by that same Legislature must be respected. The Court then went on to examine the Town s towing ordinance and determined that it was within the scope of the Town s delegated police powers. Slip opinion at 24-28, 743 S.E.2d at In summary, the towing regulations are designed to protect the health, safety and welfare of citizens and are authorized under the Town s general police power. III. THE COURT OF APPEALS CORRECTLY REVERSED THE TRIAL COURT AND DECLINED TO RULE ON THE VALIDITY OF APPELLEE S MOBILE PHONE ORDINANCE IN THIS PROCEEDING (APPELLANT S ISSUE IV) The Court of Appeals followed well-established law, exercised judicial restraint, and determined the Appellant was not subject to sufficient risk of prosecution and harm to entitle him to seek an injunction as to the validity of the mobile phone ordinance. Ordinarily an injunction is not an appropriate method of testing an allegedly

32 invalid ordinance or statute. As this Court said in Lanier v. Town of Warsaw, 226 N.C. 637, 39 S.E.2d 817 (1946): It is a general principle of law that injunction does not lie to restrain the enforcement of an alleged invalid municipal ordinance, and ordinarily the validity of such ordinance may not be tested by injunction. (Citations omitted.) Id. at 639, 39 S.E.2d at 818. Accord, Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650 (1943). Based on Lanier, the entry of such an injunction in this case, the Court of Appeals correctly concluded, was error. No actual contested case was before the Court, but instead only a disagreement with a policy decision of a local governmental agency to enact an ordinance. The Court in Lanier recognized an exception to this general rule to allow an injunction to be sought where there is some imminent threat of significant injury to the party bringing the challenge: However, this principle is subject to the exception that equity will enjoin a threatened enforcement of an alleged unconstitutional ordinance when it is manifest that otherwise property rights or the rights of persons would suffer irreparable injury. Id. at 639, 39 S.E.2d at 818. In Lanier, the Court found that the case did not come within the limits of the exception. Based on the facts alleged in Appellant s pleadings, the exception should likewise not apply here. There is no threatened enforcement of the mobile phone ordinance evidenced in the pleadings or basis to support a claim of

33 irreparable injury. The amendment enacted by the Town Council to the towing ordinance to delete the requirement that any phone call be immediately answered (R p 47), effectively resolved Appellant s initial claim of irreparable injury to his business as stated in his pleadings for injunctive relief as to the mobile phone ordinance. (R p 8) No further allegation of any purported harm arising out of the mobile phone ordinance was made by an amendment to Appellant s complaint following this ordinance amendment and there is no basis for an injunction to restrain this ordinance from going into effect. Appellant argues at length (Appellant s Br. pp 46-50) that this is a standing issue and that the Court of Appeals ruled Appellant lacked standing. No contention was raised by Appellee in its Answer that the Appellant lacked standing to bring this challenge to the Town s mobile phone ordinance. 3 Neither the Trial Court nor the Court of Appeals addressed standing to be an issue. Rather, the question considered was whether under the facts alleged in this case it is appropriate for the Court, under N.C. Gen. Stat. Chapter 1, Art. 26, the Declaratory Judgment Act, to enjoin the enforcement of a criminal regulation in the absence of an actual offense being charged. 3 In both the Trial Court and the Court of Appeals, Appellee raised the issue, with respect to the mobile phone ordinance, of whether a declaratory judgment was an appropriate remedy under the facts as alleged by Appellant in this case.

34 Appellant expounds at some length on the law related to standing (Appellant s Br. pp 46-53) but fails to consider the difference between standing and the limitations recognized by the Court on the use of the Declaratory Judgment Act. This Court explained the limitations on the availability of declaratory judgment in Malloy v. Cooper, 356 N.C. 113, 565 S.E.2d 76 (2002). The Court noted the existence of an actual controversy between adverse parties would not be sufficient to afford one a right to a declaratory judgment to challenge the constitutionality of a criminal statute. This Court in Malloy explained: However, even when an actual controversy exists between adverse parties, declaratory judgment is not generally available to challenge the constitutionality of a criminal statute. Nevertheless, a declaratory judgment action to determine the constitutionality of a criminal statute prior to prosecution is not completely barred. Id. at 117, 565 S.E.2d at 79. This Court has enunciated what a plaintiff must show in order to seek a declaratory judgment that a criminal statute is unconstitutional. The key to whether or not declaratory relief is available to determine the constitutionality of a criminal statute is whether the plaintiff can demonstrate that a criminal prosecution is imminent or threatened, and that he stands to suffer the loss of either fundamental human rights or property interests if the criminal prosecution is begun and the criminal statute is enforced. Id. at 117, 565 S.E.2d at 79 (citation omitted). Although this Court in Malloy found a right to proceed to bring a challenge

35 under the Declaratory Judgment Act, it did so only after noting an unrefuted allegation that the plaintiff had been threatened with imminent prosecution and observing that the enforcement would deny a fundamental right to earn a livelihood. Id. at 118, 565 S.E.2d at Other cases cited by Appellant on this issue (Appellant s Br. pp 49-51) did not involve criminal statutes in most cases. See, Goldston v. State, 361 N.C. 26, 637 S.E.2d 876 (2006) (validity of use of tax levies). And, where they did, there was, similar to Malloy, indication of a threat of prosecution and/or potential for greater harm to the Plaintiff. See, e.g., Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971) (length of imprisonment); Conner v. N.C. Council of State, 365 N.C. 242, 716 S.E.2d 836 (2011) (death penalty execution procedures). Appellee acknowledges that the mobile phone ordinance and the towing ordinance discussed supra affect the conduct of Appellant s business and the operations of other tow companies, as well as other drivers. Any governmental regulation can result in expense or inconvenience to the persons or businesses being regulated and possibly result in a citation for non-compliance. That is part of the price of living in a society governed by law. See Kinney v. Sutton, 230 N.C. 404, , 53 S.E.2d 306, 311 (1949): if the police power is properly exercised, a resultant pecuniary loss is a misfortune one must bear as a member of society. Accord, Walker v. City of Charlotte, 276 N.C. 166, 172, 171 S.E.2d 431, 435

36 (1970); Suddreth v. City of Charlotte, supra at 223 N.C. at 634, 27 S.E.2d at 653. Here, Appellant, with the adjustment made by the Town to the towing ordinance in response to Appellant s concern (supra p 5), can fully comply with the mobile phone ordinance by having voice mail and pulling over and parking before returning a phone call. He is afforded a reasonable opportunity to do so by the towing ordinance. He could not be cited under the mobile phone ordinance unless he already has been stopped by the police for some other valid reason. He has not been threatened with prosecution. Violation of the mobile phone ordinance would constitute an infraction and subject the offender to a $25.00 penalty. No points or costs could be assessed. Such potential expense and inconvenience does not constitute irreparable injury under the standards established by the cases cited above to merit consideration of this matter for declaratory relief. The Court of Appeals correctly determined that the facts of this case are not appropriate for the consideration of injunctive relief under the Declaratory Judgment Act. IV. APPELLEE S MOBILE PHONE ORDINANCE IS AUTHORIZED UNDER THE GENERAL POLICE POWER AND NOT PREEMPTED (APPELLANT S ISSUE V) If this Court determines that Appellant does have grounds to seek a declaratory ruling as to the Town s mobile phone ordinance, Appellee respectfully

37 submits that, for the reasons below, this ordinance is not preempted by State Law. 4 A. The Mobile Phone Ordinance is Not Preempted Under N.C. Gen. Stat. 160A-174(b)(5). N.C. Gen. Stat. 160A-174 sets out the general scope of North Carolina police power as delegated by the General Assembly to cities and towns. In paragraph (b), the statute sets out the basic limitations and preemption standards for the exercise of that power. Appellee s mobile phone ordinance meets all of the standards in N.C. Gen. Stat. 160A-174(b) to not be preempted: (b) A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when: (1) The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution; (2) The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law; (3) The ordinance makes lawful an act, omission, or condition which is expressly made unlawful by State or federal law; (4) The ordinance purports to regulate a subject that cities are expressly forbidden to regulate by State or federal law; (5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation; 4 Appellant does not challenge the police power authority of government to regulate the use of mobile phones by operators of motor vehicles. The Town Council s findings in support of the Mobile Phone Ordinance are set out in Sec of the Ordinance. (R pp 72-73) Based on these findings of the Council this ordinance is within the authority of the police power language of N.C. Gen. Stat. 160A-174 and N.C. Gen. Stat. 160A-177.

38 (6) The elements of an offense defined by a city ordinance are identical to the elements of an offense defined by State or federal law. The fact that a State or federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude city ordinances requiring a higher standard of conduct or condition. Among the features of this ordinance demonstrating it is not preempted under the standards of N.C. Gen. Stat. 160A-174(b) are the following: 1. The ordinance would regulate use of mobile phones by drivers eighteen years of age and older, an activity not currently regulated by State law. (Sec (b)) (R p 73) 2. Activities that are specifically exempted from coverage by State law for other drivers are exempted from coverage under the ordinance. (Sec (c)(1) and (2)) Id. 3. Communication with one s child is included as an additional exception. This addition is to ensure that the exception in the Statute on mobile phone use by those less than eighteen years of age for communication with one s parent would not create an unlawful incident for one party from lawful activity of another party. (Sec (c)(2)) Id. 4. Activities already regulated by State law are exempted from coverage under the ordinance (for example, use of mobile phones by school bus drivers). (Sec (c)(3)) Id.