That’s because, like the violation of many of the motor vehicle laws set forth in Chapter 20, the violation of a local government ordinance regulating parking is an infraction, punishable by a penalty of not more than $50, unless the local government’s parking ordinance provides otherwise. G.S. 14-4(b).

Like citations for other infractions, which must be personally served upon the person charged, citations for parking offenses must be delivered to the driver if that person is present when the citation is served. G.S. 15A-302(d). Frequently, however, the driver is not present. In such a case the citation is served—this time upon the registered owner of the vehicle rather than the driver—by affixing a copy of the citation to the vehicle in a conspicuous place. See id. If the person cited does not appear in court, then a criminal summons may issue. See G.S. 15A-303.

In the prosecution of a person for violation of a parking ordinance, the State may rely upon G.S. 20-162.1, which provides that it is prima facie evidence that the vehicle was parked and left by the person or entity in whose name the vehicle is registered with North Carolina’s Division of Motor Vehicles. When a person is found responsible for an infraction based on this prima facie rule, however, the maximum penalty decreases and may not be more than $5. See State v. Rumfelt, 241 N.C. 375 (1955). The cumulative payment will not, however, be de minimis as court costs also must be assessed upon a finding of responsibility. G.S. 7A-304.

But hold on. Who among you has received a parking ticket deposited on your windshield, penalizing you, as the registered owner of the vehicle, and requiring payment of more than $5 to the police department, the clerk at city hall, or some other agency of the local government? Was the local government that ticketed you violating the law or otherwise pulling the wool over your eyes? No.

Parking violations that are infractions also may be enforced through imposition of a civil penalty recoverable by civil suit. See G.S. 153A-123(c), (f) (providing methods for enforcing county ordinances); G.S. 160A-175 (c), (f) (providing methods for enforcing city ordinances). Thus, rather than serving a citation that requires a person’s appearance in district court, a city may instead deposit a parking ticket upon a car that requires payment of a penalty in an amount that is not proscribed by the provisions of G.S. 14-4 or G.S. 20-162.1.

Indeed, many cities forego the infraction enforcement route all together by decriminalizing their parking ordinances pursuant to G.S. 160A-175(b). If parking violations are not violations of state penal law, money collected for unlawful parking may be retained by the city rather than being remitted to the county for the use of the public schools under the fines and forfeitures clause of Article IX, section 7 of the North Carolina Constitution. Cf. Cauble v. City of Asheville, 301 N.C. 340 (1980) (holding that clear proceeds of sums paid to the City of Asheville for violations of its overtime parking ordinance were owed to Buncombe County for the maintenance of its public schools because violation of the parking laws also was a breach of the State’s penal law pursuant to G.S. 14-4).

A handful of cities also are authorized to place immobilizing wheel locks on vehicles to enforce payment of parking tickets. S.L. 1995-381 authorizes the cities of Durham, Greensboro, Raleigh, and Winston-Salem to adopt ordinances providing for the use of wheel locks on illegally parked vehicles for which there are three or more outstanding, unpaid, and overdue parking tickets for a period of ninety days.

Parking for handicapped persons, in contrast, is regulated by G.S. 20-37.6 rather than by local ordinance. A violation of handicapped parking laws, including improper parking in a handicapped space, is an infraction that carries a penalty of at least $100 and up to $250. G.S. 20-37.6(e), (f). It is prima facie evidence in the prosecution of such a violation that the vehicle was parked and left in the space by its registered owner. G.S. 20-37.6(f). In addition, a law enforcement officer may cause a vehicle parked in violation of G.S. 20-37.6 to be towed. A person cited for illegal parking in a handicapped space may waive court appearance by pleading responsible and remitting $100 and court costs to the clerk of court. See Waiver Item B.3 of the Traffic Offense Waiver List.

Questions frequently arise regarding whether cities and counties may lawfully adopt ordinances regulating traffic. For instance, may a city or county allow the operation of golf carts on streets within its boundaries? May a city adopt an ordinance defining speeding as violation of city code, punishable by a fine? May a city prohibit the use of mobile telephones by drivers within its jurisdiction?

The answer to these questions hinges upon a two-part inquiry. First, is the local government authorized to regulate in this area?  Second, is the proposed ordinance consistent with state and federal law?

The general ordinance-making powers of cities and counties are defined in G.S. 160A-174 and G.S. 153A-121. Cities and counties may adopt ordinances regulating acts “detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the [city or county].”  G.S. 153A-121; 160A-174.

G.S. 160A-296 provides that cities have general authority and control over (which includes the power to regulate the use of) the public streets, sidewalks, alleys, and bridges within their jurisdictions, except to the extent that authority and control is vested in the Board of Transportation.  Several additional provisions in Chapter 160A expressly permit local regulation of traffic.  See, e.g., G.S. 160A-300 (permitting cities to regulate pedestrian or vehicular traffic on public streets, sidewalks, alleys and bridges within the city); G.S. 160A-300.1 (permitting cities to install red light cameras and impose civil penalties for running a red light in violation of G.S. 20-158); G.S. 160A-300.6 (authorizing cities, notwithstanding contrary provisions of state law, to allow and regulate the operation of golf carts on public streets); G.S. 160A-301 (allowing cities to regulate parking).

Counties are in a different posture, however, as G.S. 153A-121(b) specifies that counties’ general ordinance-making powers do not confer authority to “regulate or control vehicular or pedestrian traffic on a street or highway under control of the Board of Transportation.” Since all public roads in the county are state-controlled, counties can only regulate in this area as specifically authorized by other provisions of state law.

The state’s motor vehicle laws expressly authorize local regulation of certain traffic activities.  See G.S. 20-141 (authorizing local authorities to set higher or lower speed limits on certain streets within their jurisdictions); G.S. 20-158 (permitting local authorities to erect traffic signs and signals); G.S. 20-169 (authorizing local authorities to enact ordinances that: (1) regulate heavy or continuous traffic by signaling device; (2) establish one-way streets; (3) regulate use of the highways by processions or assemblages;  (3) set speed limits in public parks; and (4) authorize law enforcement or emergency vehicles to preempt traffic signals).

When a proposed vehicle regulation is expressly sanctioned by state statute, such as the regulation of golf carts on public streets, see G.S. 153A-245 and 160A-300.6 (discussed here), the inquiry ends, and the local government may act pursuant to the statutorily conferred authority.

In contrast, when the regulation satisfies a generally permissible purpose but is not expressly authorized, the local government must consider whether the proposed regulation is consistent with state law.  See G.S. 160A-174(b). And while there are obvious ways in which regulation may conflict with state or federal law, such as by permitting conduct expressly forbidden by state or federal law or by regulating a verboten subject, there are two other, less intuitive, ways in which local regulation may be deemed inconsistent. 

First, a local ordinance may not – absent an express grant of authority – define and punish an act that already defined as a crime or infraction under state law.  G.S. 160A-174(b)(6).  An example of this type of inconsistent regulation was highlighted a few years ago when the News and Observer reported that police officers in the City of Raleigh exercised unbridled discretion in determining whether to cite speeding drivers for a violation of state law or, instead, a violation of the city’s ordinance regulating the same conduct. Being cited for a city ordinance violation versus a state law infraction or misdemeanor pursuant to G.S. 20-141 was thought to be a more favorable outcome for drivers, as it required no appearance in court and carried no risk of collateral license or insurance consequences. Shortly after the story, as reported here, the Raleigh city attorney acknowledged that the city lacked authority to regulate speeding in this manner and reported that city police officers had been instructed to discontinue the practice. 

Second, a local ordinance may not 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. G.S. 160A-174(b)(5).

So let’s suppose that instead of prohibiting speeding, a city wants adopt an ordinance banning mobile phone use by drivers within in jurisdiction, with an exception for emergency situations.  (The Town of Chapel Hill considered such regulation earlier this year.  You can read town attorney Ralph Karpinos’ thoughtful analysis regarding the town’s authority here.) May a city do that?  The proposed ordinance regulates an act that arguably is detrimental to the safety of city citizens so it falls within the city’s general ordinance-making power. No state or federal law expressly prohibits local regulation of mobile phone use by drivers.  And while state law prohibits mobile phone use by drivers under eighteen and by school bus drivers, and bans texting or emailing while driving, it doesn’t impose an outright ban on drivers’ mobile phone use.  Thus, the proposed ordinance would not define an offense with the same elements of a state (or federal) offense.  The determinative question is whether the field is preempted. 

If the regulatory scheme “is so complete in covering the field that it is clear any regulation on the [local] level would be contrary to the statewide regulatory purpose” then local regulation is preempted pursuant to G.S. 160A-174(b)(5).  Craig v. County of Chatham, 356 N.C. 40, 46 (2002). There is no requirement that the local regulation be expressly barred—the completeness of the scheme is sufficient to establish preemption. 

Do the three state statutes regulating mobile phone use by drivers constitute a complete and integrated regulatory scheme?  One provision of G.S. 20-137.4—the statute banning mobile phone use by school bus drivers—indicates they do not.  G.S. 20-137.4(e) specifies that “[n]o local government may pass any ordinance regulating the use of mobile telephones or additional technology associated with a mobile telephone by operators of school buses.”  If regulation of mobile phone use by drivers is preempted from local legislation, then G.S. 20-137.4(e) is surplusage, an interpretation disfavored by rules of statutory construction.

On the other hand, the mobile phone use statutes comprise a portion of the extensive vehicle equipment regulation codified in Part 9 of Article 3 of Chapter 20. The first provision of Part 9, G.S. 20-115, provides that “local authorities shall have no power or authority to alter said limitations [regarding vehicle size, weight, construction, and equipment] except as express authority may be granted in this Article.”  This comprehensive scheme for regulating equipment associated with vehicles favors a view that the field is preempted. Also relevant is that local regulation of mobile phone use by drivers may subject drivers to different rules in different jurisdictions, an outcome inconsistent with the generally uniform nature of motor vehicle regulation­. See Craig, 356 N.C. at 48 (2002) (considering risk of different, conflicting rules in different jurisdictions relevant to inquiry regarding whether local ordinances regulating swine farms were preempted by statewide swine farm regulation crafted to balance the interests of swine farmers and adjoining landowners).

Given the arguments in favor of and opposed to preemption with respect to regulation of the use of mobile phones in vehicles, I won’t hazard a guess as to whether a court would consider such an ordinance preempted if challenged.  

This session, the General Assembly enacted S.L. 2009-459 (H 121), which allows all cities and counties to regulate golf carts. New G.S. 160A-300.6 permits cities to adopt ordinances regulating the operation of golf carts on any public street, road, or highway where the speed limit is 35 miles per hour or less within the city limits or on property owned or leased by the city. New G.S. 153A-245 permits counties to regulate the operation of golf carts on any public street, road, or highway where the speed limit is 35 miles per hour or less within any unincorporated area of the county or on property owned or leased by the county. Cities and counties may adopt ordinances that require the registration of golf carts, charge a fee for registration, specify who is authorized to operate golf carts, and specify the required equipment, load limits, and the hours and method of operation of golf carts. G.S. 160A-300.6(b) and 153A-245(b) specify that no person less than 16 years old may operate a golf cart on a public street, road, or highway.

The act is effective October 1, 2009. Cities and counties are permitted to adopt ordinances pursuant to G.S. 160A-300.6 and G.S. 153A-245, respectively, when the act becomes law, but the ordinances may not become effective before October 1, 2009.

S.L. 2009-459 repeals earlier acts authorizing golf cart regulation by specified local governments, but provides that the repeal does not affect the rights or liabilities of a local government that arose during the time the act was in effect or under any ordinance adopted under such an act. S.L. 2009-459 further provides that if a county or city adopted an ordinance under an act repealed by S.L. 2009-459 and the ordinance would be permitted under G.S. 160A-300.6 and 153A-245, the ordinance remains in effect until amended or repealed by the city or county.