Motor Vehicles; Parking; Handicapped Drivers

Subject:

Motor Vehicles; Parking; Handicapped Drivers

Requested By:

Mr. Lockhart Follin-Mace, Director Governor’s Council on Employment of the Handicapped

Questions:

(1)

Do security police have authority to enforce the provisions of G.S. 20-37.6(d)?

(2)

Are all persons parking in properly designated handicapped parking spaces in private parking areas (i.e., malls, shopping centers and restaurant parking areas) subject to the provisions of G.S. 20.37.6(d)?

(3)

Can an illegally parked car be towed from a handicapped parking space if the towing charge exceeds ten dollars ($10.00)?

Conclusions:

(1)

Yes, if handicapped parking spaces are properly designated and such security police have authority to enforce the criminal laws on the property upon which such space is located.

(2)

Yes, the areas enumerated are defined as public vehicular areas and when such spaces are properly designated, the provisions of G.S. 20.37.6 would be applicable.

(3)

Yes, when such spaces are properly designated and towing is justified on other than the violation of G.S. 20-37.6(d). The cost of towing is separate and apart from the ten dollar ($10.00) maximum fine established by this section.

G.S. 20-37.6(d) reads as follows:

"(d) It shall be unlawful to park or leave standing any vehicle in a space designated for physically handicapped persons when such vehicle does not display the distinguishing license plate or placard as provided in this section where appropriate aboveground signs or symbol and words giving notice thereof are erected marking the designated parking space. It shall be unlawful for any person not qualifying for the rights and privileges extended to handicapped persons under this section to exercise or attempt to exercise such rights or privileges by the unauthorized use of a distinguishing license plate or placard issued pursuant to the provisions of this section. The punishment for violation of this section shall not exceed a fine of ten dollars ($10.00) and the prima facie rule of evidence set forth in G.S. 20-162.1 shall apply." (Emphasis added)

As to all three conclusions, it is to be noted that the quoted section of the statute creates a misdemeanor but limits the penalty to a fine of ten dollars ($10.00).

The criminal law is strictly construed; therefore, unless the space designated for the handicapped is marked by "appropriate aboveground signs or symbols and words", the provisions of G.S. 20-37.6(d) are inapplicable. This section uses the word "erected" when speaking to the term "appropriately designated" which clearly takes street markings and curb markings from the purview of the statute.

As to Conclusion (1), security guards having general police authority or powers while on the premises of their employer would have authority to enforce the provisions of G.S. 20-37.6(d) as the violation thereof is a misdemeanor, provided the area in which such spaces are located fall within the definition of a public vehicular area. As to Conclusion (2), the areas enumerated in the question fall within the definition of "public vehicular area" which is defined in G.S. 20-4.01(32) as follows:

"(32) Public Vehicular Area. — Any drive, driveway, road, roadway, street, or alley upon the grounds and premises of any public or private hospital, college, university, school, orphanage, church, or any of the institutions maintained and supported by the State of North Carolina, or any of its subdivisions or upon the grounds and premises of any service station, drive-in theater, supermarket, store, restaurant or office building, or any other business, residential, or municipal establishment providing parking space for customers, patrons, or the public."

Where public safety has been involved, certain sections of the motor vehicle laws have been made applicable to public vehicular areas. The extention of the provisions of G.S. 20-37.6(d) to public vehicular areas is confined to a clearly defined class with a bona fide class-related need and the special emoluments to the class are not inconsistent with public policy and serve a public purpose. In any event, an act of the General Assembly is constitutional until declared unconstitutional by a court of competent jurisdiction.

As to Conclusion (3), the General Assembly, while making unlawful the violation of G.S. 20-37.6, has specified that the fine not be more than ten dollars ($10.00). No provision appears in the act providing for the towing of vehicles in violation. Towing should occur only when a violation exists, other than the violation of G.S. 20-37.6(d); i.e., when justifable reasons to tow exist in addition to the violation of this section. Towing of vehicles should be resorted to only when other enforcement means fail or when safety requires the removal of the vehicle. However, nothing herein is meant to relate to private property not falling within the definition of public vehicular area.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General