Can a North Carolina city license newspaper vendors to sell at busy intersection traffic islands during rush hour?
Plain-English summary
The State Traffic Engineer for NCDOT asked the AG whether Durham Municipal Ordinance 17-1, passed in April 1987, conflicted with N.C.G.S. § 20-175. The Durham ordinance let the Police Chief issue permits for newspaper and merchandise sales at intersection traffic islands "where the safety of the salesperson or the solicitor and the public is not duly jeopardized."
The State Traffic Engineer reported what was actually happening at Durham intersections under the ordinance. During peak traffic hours, the sales caused sudden stops, complete-cycle traffic delays, and lane changes around vehicles stopped for purchases. Whatever the ordinance said about "safety not duly jeopardized," the on-the-ground reality was that the sales were impeding normal traffic flow.
Senior Deputy Attorney General Eugene A. Smith answered that the ordinance, to the extent it authorized the impeding conduct, conflicted with state law and was therefore invalid.
The statutory hook is N.C.G.S. § 20-175(b), which prohibits two related acts:
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Standing or loitering in the main traveled portion of any state highway or street (including shoulders and median, but not sidewalks) for the purpose of soliciting employment, business, or contributions from drivers or occupants, or
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Stopping any motor vehicle for that purpose, where the standing or stopping "impedes the normal movement of traffic on the public highways or streets."
The statute has an exception for DOT and municipal licensees, employees, and contractors engaged in construction, maintenance, or traffic or engineering surveys. Newspaper vendors do not fit any of those categories.
The local-versus-state law conflict is resolved by N.C.G.S. § 160A-174, which says municipal ordinances cannot conflict with general state law on the same subject. Green v. City of Winston Salem confirmed the rule. Lee v. Chemical Corp. applied it specifically to motor vehicle ordinances: "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."
The Durham ordinance's "where safety is not duly jeopardized" qualifier did not save it. The state statute does not turn on safety in the abstract; it turns on whether traffic flow is impeded. The State Traffic Engineer's factual report established that traffic was being impeded. So the conduct the ordinance authorized was exactly the conduct the state statute prohibited.
The AG's conclusion was narrow but firm: the ordinance was invalid "to the extent of such conflict with N.C.G.S. § 20-175." Durham could continue to license non-impeding sales at intersections (a low-volume sale at a quiet intersection might not trigger the state law). What Durham could not do was license the peak-hour sales that the State Traffic Engineer was documenting.
Currency note
This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The basic doctrine that municipal ordinances yield to conflicting general state law remains intact and is regularly applied. § 20-175 has been amended, and the specific text of subsection (b) and its exceptions may differ from the 1989 version. Newspaper vendor sales at intersections are a less common practice today than in 1989 due to changes in the newspaper industry and the rise of digital media, but the analytical framework would apply equally to modern intersection solicitation (panhandling, charity drives, political leaflet distribution).
Background and statutory framework
N.C.G.S. § 20-175 has a long history of being used to clear up traffic safety problems caused by intersection-based solicitation. The statute predates the Durham ordinance by several decades and reflects a basic policy choice: roadways are for moving traffic, not for commerce. Sidewalks, parking lots, and dedicated commercial spaces are the appropriate locations for solicitation.
The exceptions in § 20-175(b) (DOT and municipal personnel doing construction, maintenance, or surveys) are not really exceptions in the policy sense; they recognize that some non-commercial activities legitimately require workers to be in or near the roadway. Those activities are time-limited, marked with safety equipment, and supervised. Sustained newspaper vending is none of those things.
The preemption analysis applies the doctrine that has long governed state-municipal conflicts on motor vehicle regulation. § 160A-174's text resolves it explicitly. The Lee v. Chemical Corp. case from 1948 is one of the older articulations of the rule for motor vehicle law specifically, and remains good law.
The opinion did not address First Amendment questions. Newspaper sales arguably implicate speech and press concerns, and a complete preemption of intersection newspaper sales might raise constitutional issues. But § 20-175(b) is a traffic-flow regulation, not a content-based restriction on speech, and it would likely survive intermediate scrutiny as a content-neutral time, place, and manner restriction. The AG did not need to reach the constitutional issue because the conflict-of-laws analysis disposed of the case.
The 1989 41 N.C.A.G. 528 citation references a prior AG opinion that had addressed similar conflict issues. AG opinions on local-state preemption tend to cluster around specific topics (alcohol regulation, motor vehicle equipment, hunting and fishing rules), and the doctrine is consistently applied.
Common questions
Did this opinion shut down all newspaper vendor sales at intersections?
No. The opinion was narrow: it invalidated the ordinance only "to the extent" the authorized conduct impeded normal traffic flow. Sales at quiet intersections, off-peak hours, or in ways that did not cause stops and delays could still be permitted. The State Traffic Engineer's report focused on the impeding sales at peak hours.
Could Durham re-enact the ordinance with stricter limits?
Yes. A revised ordinance that restricted sales to low-volume intersections, off-peak times, or specific locations that did not impede traffic could survive the analysis. The state law sets a ceiling; the city can adopt any rule consistent with that ceiling.
Did this opinion apply to charitable solicitation at intersections (firefighter boot drives, etc.)?
The state statute applies the same way to "business or contributions" from drivers. Charitable solicitation that impedes traffic falls within § 20-175(b) just as commercial solicitation does. Many cities have adopted special permit schemes for limited charity solicitation that are designed to fit within the state law's framework.
What about political leafleters at intersections?
The state statute reaches solicitation of "business or contributions." Pure political leafleting (handing out literature without seeking contributions) might or might not fall within the statute depending on how literally "soliciting" is read. First Amendment considerations would also apply. The opinion did not address that scenario directly.
Could Durham have argued that its ordinance was a legitimate exercise of police power that supplemented rather than conflicted with the state statute?
That argument is essentially what the AG rejected. The Durham ordinance authorized conduct the state statute prohibited. A supplementary ordinance that imposed additional restrictions on top of the state statute would be a different matter; an ordinance that authorized what the state statute banned cannot stand.
Citations
- N.C.G.S. § 20-175(b) (solicitation impeding traffic)
- N.C.G.S. § 160A-174 (municipal ordinances cannot conflict with state law)
- Green v. City of Winston Salem, 287 N.C. 66 (1975)
- Lee v. Chemical Corp., 229 N.C. 447 (1948)
- 9 Strong's N.C. Index 3d, Municipal Corporations § 4
- 41 N.C.A.G. 528 (prior AG opinion)
Source
Original opinion text
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