David DiGiacinto, the sole Council member to vote against this ban, ironically helped draft an amendment to make it stronger. He proposed banning any "interactive wireless communications device," which could include laptop computers, PDAs or any electronic device that sends and receives messages, including cell phones.
Talking with a hands-free device is still permissible, and even hand-held cells may still be used for emergencies or if you pull over to the side of the road.
Before the vote, Bethlehem resident Don MacRae told Council that the real problem is distracted driving, which could even include noise. He pointed to a noise ordinance that bars car radios that can be heard 40' away, but complained it's never enforced. Other Bethlehemites, however, supported the measure. Al Bernatos called it "proactive", while Dana Grubb applauded it as sending "a message to state officials."
On City Council, DiGiacinto explained his opposition by simply stating he considers the Ordinance illegal. But Council member J. William Reynolds argued enactment might spur the state into finally adopting a statewide ban. "I do think there's something to be said for putting pressure on the state," he noted.
Philadelphia, Erie, Harrisburg, Allentown and Wilkes-Barre are other cities that have imposed a prohibition on the use of hand-held cell phones while driving, but currently, there is no statewide ban. The state House did adopt a comprehensive ban in January, but there has been no action in the state Senate. According to Council member Eric Evans, that might happen as soon as June 15, but Reynolds speculated that this legislation could also be used as a tool in state budget negotiations.
Local AAA spokesperson Theresa Podguski has told me that only seven states, including the District of Columbia, bar the use of hand-held cell phones while driving. Twenty-four states make text-messaging while driving illegal, and twenty-seven states limit their restrictions on cell phone use to teens.
Podguski maintains that no studies show that the use of hands-free phones actually offers any safety advantage over hand held phones. "It's the conversation that's the distraction," she said. AAA only advocates a texting ban.
The Ordinance also provides for signs notifying the public to put their cell phones away while driving. But Council member Reynolds, noting that the cost of signs throughout the City could run anywhere between $2,000 to $15,000, asked Mayor Callahan to hold off on signs in the hope that a statewide ban is imposed sometime this Summer.
Council President Bob Donchez, who spoke last, provided the most compelling reason for a ban. "If we save just one life, it's well worth passing this Ordinance tonight." Donchez, a former teacher, told Council that 7 or 8 of his students were buried as a result of tragic automobile accidents.
"If there's a challenge, so be it," he concluded, referring to the very real possibility that this a city ban on hand-held cell phones is pre-empted by the state Vehicle Code.
That bothers our local District Attorneys, too.
Northampton County District Attorney John Morganelli told me, "I believe that the ordinance is unenforceable due to preemption. There is at least one judicial decision, I believe in Bucks County, stating the state ONLY has authority to legislate in the area of motor vehicles." As a result, Morganelli refuses to use his prosecutorial resources to pursue violations. "I have advised the City Solicitor that I would authorize them to act on behalf of the Commonwealth in any summary appeals resulting from enforcement of the ordinance, and they have authority to prosecute summary matters in the District Court level," he stated.
In Lehigh County, District Attorney James Martin expresses reservations as well, but is willing to test the legality of the Ordinance in Court. "When Allentown recently passed its ordinance, I said I would let the court decide. I took that position because even though I think the ordinance is in conflict with the uniformity provisions of the Vehicle Code and will be found to be unenforceable, no court except the Bucks County Court of Common Pleas has so held. That decision has no precedential significance in Lehigh County. Further, the Vehicle Code is silent as to cell phones; so there is presently no conflict between the ordinance and state law (arguably)," he said. He cautioned that if a cell phone ban statute is adopted by the Pennsylvania Legislature, that will trump any local ordinance. "At such time I would not enforce the local ordinance. I think there are strong public policy reasons to have a uniform state law in both of these areas. Bethlehem did ask for my opinion and I told the clerk I would be consistent with what we are doing in Allentown. Obviously, if the Lehigh County Court of Common Pleas declares the ordinance illegal, it will not continue to be enforced, and I will so direct the Police Department," he concluded.
In other business, City Council approved the sale if a 1.5 acre tract of land located along Silvex Road to Colleen T. Miller. She agreed to pay the appraised price of $13,500, although county assessment records place the value at $14,700.