Municipal Ordinances; Conflict with State Laws

Subject:

Municipal Ordinances; Conflict with State Laws

Requested By:

Mr. J. M. Lynch, P.E. State Traffic Engineer North Carolina Department of Transportation

Question:

Is Durham Municipal Ordinance 17-1, which authorizes the sale of newspapers and merchandise at intersectional traffic islands, in conflict with N.C.G.S. § 20-175?

Conclusion:

Yes, to the extent that the ordinance purports to authorize acts resulting in the impeding of the normal flow of traffic on the public highways.

Durham Municipal Ordinance 17-1, passed April 6, 1987, authorizes the Chief of Police to issue permits for the sale of goods and newspapers at interchanges of public streets and upon traffic islands "where the safety of the salesperson or the solicitor and the public is not duly jeopardized." The State Traffic Engineer advises that the sale of newspapers pursuant to permits authorized by this municipal ordinance, on medians, traffic islands and curbs at intersections during peak traffic hours results in sudden stops, and delays to traffic which in some cases causes the traffic to wait a complete cycle and in other cases vehicles change lanes to go around other vehicles stopped for the purchase of newspapers.

N.C.G.S. § 20-175(b) provides that:

"No person shall stand or loiter in the main traveled portion, including the shoulders and median, of any State highway or street, excluding sidewalks, or stop any motor vehicle for the purpose of soliciting employment, business or contributions from the driver or occupant of any motor vehicle that impedes the normal movement of traffic on the public highways or streets: Provided that the provisions of this subsection shall not apply to licensees, employees or contractors of the Department of Transportation or of any municipality engaged in construction or maintenance or in making traffic or engineering surveys." (bold for emphasis)

The activity described by the State Traffic Engineer and permitted by the municipal ordinance, is one of the acts enumerated in N.C.G.S. § 20-175(b) resulting in the impeding of normal movement of traffic on the public highways. Where there is a conflict between a municipal ordinance and the general law of the State regulating a matter, the ordinance must yield to the State law. 9 Strong’s N.C. Index 3d, Municipal Corporations, Section 4, p. 133; N.C.G.S. § 160A-174; Green v. City of Winston Salem, 287 N.C. 66 (1975). The principle was applied in the case of Lee v. Chemical Corp., 229 N.C. 447 (1948) in which the court stated that the "state statute does not prevent proper municipal traffic regulations but city ordinances which are inconsistent with general state laws regulating the operation of motor vehicles on the highways (including city streets which constitute portions of State highways) are to the extent of such inconsistencies, invalid." 229 N.C. at 449.

This office is of the opinion that the sale of newspapers by vendors at intersections pursuant to the municipal ordinance, impedes "the normal movement of traffic on the public highways," is in conflict with N.C.G.S. § 20-175, and it is therefore invalid to the extent of such conflict with

N.C.G.S. § 20-175. 41 N.C.A.G. 528.

Lacy H. Thornburg Attorney General

Eugene A. Smith Senior Deputy Attorney General