DURHAM – Even as a battle over the issue plays out in state court, city officials are preparing a rewrite of the rules that in Durham govern how tow-truck operators can haul off cars and trucks against an owner’s will.
The revision will reach the City Council on Thursday, and targets sections of the city code that have been in place for up to 48 years.
“We’ve been trying to come up with what we think are some reasonable standards which don’t just make it the Wild West of towing,” City Manager Tom Bonfield said of the proposal he and his staff have given the council.
But the city’s move comes four months after Durham’s chief resident superior court judge, Orlando Hudson, declared unconstitutional a state law that gave Durham and other communities explicit permission to regulate towing.
Hudson’s ruling came in a Chapel Hill case, and is now under review by the N.C. Court of Appeals.
Lawyers for Chapel Hill and N.C. League of Municipalities argue that Hudson erred by ignoring other state statutes that allow cities to regulate businesses using their general police powers.
“It doesn’t appear [Hudson] even addressed the police-power issue,” Durham City Attorney Patrick Baker said.
The Durham revisions chiefly target “non-consensual” tows – most commonly, the type that results when a business owner hires a tower to haul off cars parked outside his or her establishment by people who aren’t at that moment patronizing the business.
Non-consensual tows are intensely controversial in Chapel Hill, where critics see “predatory towing” along Franklin Street as something akin to an extortion racket.
Towers there monitor a few parking lots with video cameras, move in the second a car’s owner leaves the property and demand cash for the car’s release.
Similar things happen in Durham, and often wind up involving the city when car owners who think their vehicle has been stolen call police, Bonfield said.
State law normally makes the taking of a vehicle “without the express or implied consent of [its] owner” a crime.
One of the revisions Bonfield and his staff propose would require towers to notify police within 30 minutes of hauling off a car. It would supplement a rule that already requires a once-a-week submission to police of an inventory of any cars a tower’s holding.
Other revisions would beef up existing code provisions that address towing fees. They include a $125 cap on the fee for a non-consensual tow not requested by police, and a demand that towers accept credit and debit cards.
The statute Hudson declared unconstitutional drew his wrath because it targeted only a select few communities, Durham included.
Agreeing with lawyers for a company called George’s Towing, Hudson said the piecemeal approach violated the state constitution’s bar on the General Assembly’s using “local acts” to give cities and counties regulatory authority over business.
He in essence held that any state towing law has to apply equally in all 100 North Carolina counties.
Chapel Hill’s Court of Appeals brief pointed out that Hudson’s ruling wiped out the whole statute – which, among other things, included what appears to be the only provision in state law that expressly authorizes non-consensual, non-police-requested tows from private property.
He left in place other provisions dealing with tows from public property. And a previous Court of Appeals ruling hinted at judge-made, common-law authority for a private-property owner to hire towers, under the legal doctrines that apply to trespassing.
But appellate judges to date have left “unanswered” the question of whether a tow company relying on those common-law doctrines can legally enforce its fees, Shea Denning, a University of North Carolina School of Government professor, said in a 2011 blog post.
Towers and the property owners who use them defend their non-consensual tows on property-rights grounds, and in general argue that they’re an appropriate way to ensure that a business has enough parking to serve its own customers.