by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The N.C. Supreme Court has reversed the N.C. Court of Appeals and agreed with a trial court to strike down Chapel Hill’s local ordinance banning drivers from using mobile phones. At the same time, the state’s highest court has upheld portions of a town towing ordinance that also faced a legal challenge. While the towing ordinance is allowed to stand, justices barred the town from creating a fee schedule and limiting towing companies’ ability to charge credit card fees.
Writing for the court, Justice Paul Newby said of the town-mandated fee schedule:
Unlike the signage and notice provisions, there is no rational relationship between regulating fees and protecting health, safety, or welfare. Further, the fee schedule provision implicates the fundamental right to “earn a livelihood.” (“While many of the rights of man, as declared in the Constitution, contemplate adjustment to social necessities, some of
them are not so yielding. Among them the right to earn a living must be regarded as inalienable.”). This Court’s duty to protect fundamental rights includes preventing arbitrary government actions that interfere with the right to the fruits of one’s own labor. (“A state cannot under the guise of protecting the public arbitrarily interfere with
private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions on them.”
Despite our expansive reading of N.C.G.S. § 160A-174, we do not believe that statute permits a city or town to create the fee schedule at issue here. The prices that citizens pay for towing are wholly unrelated to the protection of citizen health or safety, leaving only the question of whether the fee schedule provision falls under the protection of citizen welfare. Allowing Chapel Hill to engage in price setting under the general and undefined rubric of “welfare” could subject other enterprises not only to price setting but also to officious and inappropriate regulation of other aspects of their businesses. Where any relationship between “welfare” and the specific activity sought to be regulated is as attenuated as here, we believe that the more prudent course is for the General Assembly to grant such authority expressly, as it has done in regard to rates that may be charged in other contexts such as, for instance, taxi cabs.