The Association often gets questions regarding the powers of a municipal council under state statute, especially related to the operation of vehicles on roads and highways within municipal boundaries.
For example, 17 cities have passed bans on the use of hand-held electronic devices while driving ranging from an absolute ban on their use to banning only texting while driving. These ordinances have not been challenged because the state does not at this time regulate the use of cellphones while driving. See related story on distracted driving ordinances on page 4.
In 2008, the City of Myrtle Beach passed an ordinance requiring motorcycle riders to wear helmets. The ordinance was challenged, and the state Supreme Court ruled that such a municipal ordinance is not allowed because this type of restriction would unduly limit an individual's freedom of movement throughout the state.
Recently, the question has been raised whether city ordinances can address moving vehicle violations.
A legal opinion written for the Municipal Association by attorney Danny Crowe evaluates two Attorney General's 2013 opinions regarding the legal ability of cities to impose local moving violation ordinances that set penalties different from those in state law.
The state constitution mandates certain types of general "matters" (such as general citizen rights or general laws) cannot be "set aside" by legislative acts of local governments. These specific matters include "criminal laws and the penalties and sanctions for the transgressions thereof." The rationale for this constitutional carve out from the legislative authority of local governments was a perceived need for statewide uniformity.
In his opinion, Crowe concluded a local moving violation ordinance that imposes fines higher or lower than those allowed by state law would likely be in conflict with state law and void. Similarly, moving violation ordinances that impose only civil penalties, which avoid the criminal tracking and points system, are also in conflict with state law.
A May 2013 AG opinion took the position that a local traffic ordinance cannot make acts unlawful that were already unlawful under state law. The opinion says an ordinance such as this would be merely duplicative of existing state law and, because of that, could not be considered an "additional" traffic regulation as authorized by state law.
Crowe also cited a November 2013 AG opinion that states "we believe local ordinances regulating traffic are void as in conflict with state law if such ordinances: regulate traffic in the same manner as any provision of the Uniform Traffic Act without express statutory authorization to do so; impose greater or lesser penalties for traffic violations than those set forth by the UTA; or impose a civil fine as opposed to the criminal penalties prescribed by the UTA, thereby circumventing the criminal tracking and point system the legislature intended to be used for traffic violations."
To avoid potential legal action being brought against the city, Crowe advised municipal councils to refrain from imposing any traffic ordinance that would be in conflict with state law by duplicating a state law or by setting penalties different from what state law allows.
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