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Towing Company out of Vilas Files Lawsuit Against Town of Boone for Recent Revisions to Towing Ordinance

By Jesse Wood

Sept. 10, 2014. Mountaineer Towing and Recover of Vilas has filed a complaint in Watauga County Superior Court against the Town of Boone after the Boone Town Council unanimously voted to enact numerous revisions to the town’s towing ordinances on July 24.

The complaint was filed on Aug. 13. Representing Mountaineer Towing is attorney Nathan Miller.

One of the many signs that was present in the Market Place Lot. Photo by Jesse
One of the many signs that was present in the Market Place Lot. Photo by Jesse

Earlier this summer, the Boone Town Council revised the town’s ordinances after receiving complaints from citizens and visitors regarding the practice of booting vehicles at the Market Place lot in between Murphy’s Restaurant and Pub and Mellow Mushroom in downtown Boone. After mounting complaints, Councilwoman Lynne Mason called the situation with LMS Parking, the company working that particular lot, a public relations “nightmare.”

However, some of the enacted changes affected businesses that don’t engage in booting vehicles. The eight-page claim filed less than a month ago notes that the “plaintiff doesn’t engage in the practice known as booting vehicles.”

The new revised ordinance requires that signs in parking lots be posted in both directions of an entrance to a lot, within 10 feet from the street and for signs to be no less than four square feet and no more than six square feet in diameter. The previous ordinance required signs that were no smaller than two square feet and no larger than four square feet.

The Boone Town Council enacted these changes after repeated reports of confusion from drivers supposedly unknowingly illegally parking in the Market Place Lot even though more than 20 different signs were in the lot. Some of those signs said, “Customer Only Parking” and folks would assume that since they were a customer in downtown Boone, they were fine to park in the lot. Now, the language on the signs is supposed to be more specific.

The claim states that the revised ordinance didn’t have a grandfather clause for older signs and that his client has already spent “thousands of dollars for no legitimate public health, safety or welfare reason” complying with previous ordinances related to signage. The complaint alleges that this section of the ordinance pertaining to the size of the signs violates state law and the state constitution by “restricting the plaintiff’s fundamental right to earn a livelihood.”

The following passage is another revision of the towing ordinance: “No person convicted of a misdemeanor as the result of violating this chapter and no person convicted of any crime under state law related to activities connected to parking lot or parking space enforcement within the town may thereafter engage in towing or in the application of parking control devices or methods in the town for a period of 10 years from the date of conviction.”

The town began to look more closely at the background of persons working the lots after an altercation occurred between a citizen and an LMS parking attendant, who had an extensive criminal background.

The complaint filed by Mountaineer Towing notes that the “imposition of a 10-year period is arbitrary and capricious and serves no legitimate state interest;” restricts the “plaintiff’s fundamental right to earn a livelihood;” and “interferes with the right to the fruits of one’s own labor.”

The claim also states that another section of the ordinance, which pertains to a cap on towing fees, also violates the state constitution and state law.

The complaint requests the court find that the three revisions – sections 73.04 (B), 73.06 (A) and 73.99 – violate the state constitution and statutes; grant motions for temporary and permanent injunctions and tax court and attorney fees to the Town of Boone.

Town Attorney Sam Furgiuele deferred comment on this lawsuit. Mayor Andy Ball said the town had no comment at this time.

See revisions to the towing ordinance here:CHAPTER 73 revision 7-17-14 (1)

See the entire claim here: complaint and summons

See story with background on the towing/booting situation in Boone.