Can a New York county ban drivers from using hand-held cell phones on its roads, or does state law preempt the local rule?

Plain-English summary

Rockland County's assistant county attorney asked the AG whether the county could enact a local law banning drivers from holding and using hand-held cell phones while driving on county roads. The AG framed the question as a two-step home rule inquiry and concluded that, while the proposed law fit within general home rule powers, there was a substantial possibility that the Vehicle and Traffic Law preempted it.

Step one was easy. Article IX § 2(c)(6) of the New York Constitution and Municipal Home Rule Law § 10 give localities authority to legislate on highway use, public safety, and the well-being of persons and property. A cell phone ban for drivers sits within that broad general power.

Step two, consistency with State law, was the hard part. The Vehicle and Traffic Law is the relevant "general law." The AG ran the analysis along two parallel tracks: (1) has the legislature specifically delegated this authority to counties? and (2) if not, is the area preempted by State law (expressly or impliedly)?

On delegation, the AG cited VTL §§ 1650-1652-b. None of the specific delegations to counties touched cell phone use. The only specific county powers covered things like lane allocation, slow-moving traffic signs, and weight limits on county roads.

On express preemption, VTL § 1604 prohibits local authorities from passing four kinds of motor-vehicle rules: fee/permit requirements, free-use exclusions, "in any other way restricting motor vehicles" or speed upon or use of highways, and reserving highways for non-traffic events. The AG read the third category broadly. The phrase "in any other way" implied wide scope. VTL § 300 reinforces the reading by declaring Title III "exclusively controlling" on motor vehicle use of public highways and on "accessories used upon motor vehicles." VTL § 375(24-a) (earphones), § 375(24) (television receivers within driver's view), § 1226 (one hand on the wheel), and § 1212 (reckless driving) are all driver-conduct safety rules at the State level. Reading § 1604's "in any other way" to exclude the proposed cell phone ban would leave it without function. The AG concluded there was "a strong argument" that the proposed law was expressly preempted.

On implied preemption, the AG cited the VTL's elaborate, detailed regulatory scheme (Vatore) and its express uniformity language in § 1600 ("the provisions of this chapter shall be applicable and uniform throughout this state"). Implied preemption asks whether the legislature intended to "occupy the entire field." The Great Atlantic & Pacific Tea Co. court warned of "confusion and chaos" if drivers had to comply with patchwork local vehicle rules across municipalities. The AG observed that a contrary holding would let localities legislate "almost any safety-related driver conduct, from tuning a car radio to eating a sandwich to consulting a map."

Both tracks pointed the same direction. The AG closed with a careful hedge: a "substantial possibility" that Rockland County lacked authority to enact the proposed law, rather than a flat statement of certainty.

Currency note

This opinion was issued in 2001. 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.

Specifically: the New York Legislature subsequently enacted a statewide hand-held cell phone driving ban (VTL § 1225-c) and a later texting ban (VTL § 1225-d). Those enactments resolve the underlying policy question at the State level and may also bear on the preemption analysis for any remaining local rules.

Common questions

Did this opinion mean cell phone use while driving was permitted?

No. It meant that, at the time of the opinion, only the State could legislate driver cell phone use. The AG was not saying the activity was lawful; it was saying counties lacked authority to ban it. The legislature later occupied the substantive ground.

What about a town or village trying the same thing?

The reasoning would apply equally. VTL § 1604 reaches "local authorities" generally, not just counties. § 1600's uniformity language sweeps across "all political subdivisions and municipalities."

Is there any way a locality could regulate driver distraction?

The opinion's logic suggests only narrow openings: through specific delegations in VTL §§ 1650-1652-b, or through laws aimed at "nuisances [that] arise incidentally in connection with automobiles" (citing 1914 Op. Atty Gen. (Inf.) 149, the smoke/muffler cutout precedent). A frontal driver-conduct rule was out.

How does VTL § 300's "accessories" language affect the analysis?

§ 300(b) declares Title III exclusively controlling over accessories used upon motor vehicles. The AG noted in footnote 1 that even if cell phones were treated as "accessories" rather than as part of the "use" of the highway, § 300(b)'s exclusivity language would independently preempt the local law.

What's the difference between express and implied preemption?

Express preemption exists when the State law's text says local laws on the subject are forbidden. Implied preemption arises when the State law's overall scheme shows an intent to occupy the entire field. The AG's analysis used both, with the express argument resting on § 1604 and the implied argument resting on the VTL as a whole.

Background and statutory framework

Article IX § 2 of the New York Constitution and Municipal Home Rule Law § 10 grant local governments police power, including over highways. The grant is qualified: local laws must be consistent with the Constitution and general laws.

Vehicle and Traffic Law § 1600 is the uniformity statement: "The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein."

VTL § 1604 is the local-authority limit. It prohibits local laws (1) requiring fee, permit, or license for highway use, (2) excluding owners from free use of highways, (3) "in any other way restricting motor vehicles or their speed upon or use of the public highways," and (4) setting aside state-built highways for shows, exhibitions, or meetings.

VTL § 300 governs application of Title III: "this title shall be exclusively controlling" on motor vehicle use of public highways and on accessories used upon motor vehicles.

VTL § 375(24) bans operating a motor vehicle with a television receiver within the driver's view; § 375(24-a) bans operating with more than one earphone attached to an audio device. § 1212 contains the reckless driving prohibition. § 1226 requires at least one hand on the steering mechanism at all times.

VTL §§ 1650-1652-b set out the specific traffic-related powers delegated to counties, including lane allocation and weight limits.

Citations

• Vehicle and Traffic Law § 300 (Title III exclusively controlling on motor vehicle highway use and accessories).
• Vehicle and Traffic Law § 375(24) (television set within driver's view prohibited).
• Vehicle and Traffic Law § 375(24-a) (multiple earphones while driving prohibited).
• Vehicle and Traffic Law § 1212 (reckless driving).
• Vehicle and Traffic Law § 1226 (one hand on the steering mechanism).
• Vehicle and Traffic Law § 1600 (statewide uniformity).
• Vehicle and Traffic Law § 1604 (limits on local authority over motor vehicle highway use).
• Vehicle and Traffic Law § 1650 (specific delegations to counties).
• N.Y. Const. Art. IX § 2, § 2(c) (home rule).
• Municipal Home Rule Law § 10(1)(i), (ii)(a)(12) (local law power; consistency requirement).
• Ames v. Smoot, 98 A.D.2d 216 (2d Dep't 1983) (express versus implied preemption distinction).
• People v. DeJesus, 54 N.Y.2d 465 (1981) (implied preemption standard; quoting Robin v. Hempstead).
• Robin v. Incorporated Vill. of Hempstead, 30 N.Y.2d 347 (1972) (occupy-the-field analysis).
• Vatore v. Comm'r of Consumer Affairs of the City of New York, 83 N.Y.2d 645 (1994) (VTL described as "elaborate and detailed regulatory scheme").
• State of New York v. Speakerkits, Inc., 83 N.Y.2d 814 (1994) (residential parking permit preempted under § 1604).
• People v. Grant, 306 N.Y. 258 (1953) (village exclusion of through traffic preempted).
• Great Atlantic & Pacific Tea Co. v. City of New York, 17 N.Y.S.2d 270 (Sup. Ct. N.Y. Co., Special Term 1940) ("confusion and chaos" with local rules on vehicle color).
• Automobile Club of New York, Inc. v. City of New York, 1981 N.Y. Misc. Lexis 3518 (Sup. Ct. N.Y. Co. 1981) (single-occupancy bridge ban preempted).
• 1979 Op. Atty Gen. (Inf.) N.Y. 117 (parking coupon system preempted).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2001-1_pw.pdf

Original opinion text

NY CONST, ART IX, §§ 2, 2(c); MUNICIPAL HOME RULE LAW
§§ 10(1)(i), (ii)(a)(12); VEHICLE AND TRAFFIC LAW §§ 300, 375
(24), (24-a), 1212, 1226, 1600, 1604, 1650.
There is a substantial possibility that a municipality lacks
the authority to pass a local law prohibiting a driver from
holding and using a hand-held mobile phone while operating a
motor vehicle on roads within the County.

January 16, 2001
Stephen J. Powers, Esq.
Informal Opinion
Assistant County Attorney
No. 2001-1
County of Rockland
Department of Law
Office of the County Attorney
Allison-Parris County Office Building
11 New Hempstead Road
New City, New York 10956
Dear Mr. Powers:
You have inquired whether the County of Rockland is
authorized to enact a local law prohibiting a driver from holding
and using a mobile phone while operating a motor vehicle on roads
within the County.
Your request presents a complex question on which there is
no clear judicial authority. However, while there is an argument
to be made that the proposed local law is valid, our reading of
the relevant precedents, in conjunction with the Vehicle and
Traffic Law as a whole, supports the contrary conclusion that the
County is preempted by State law from enacting such a local law.

A. Analytical Framework

Resolution of the issue you present requires the
consideration of two main questions. The threshold question is
whether the proposed local law falls within the general police
powers of localities provided for in the "home rule powers"
section of the New York State Constitution, article IX, § 2, and
section 10 of the Municipal Home Rule Law. If the proposed
legislation falls within these general powers -- and we conclude
that it does -- we must determine whether the proposed
legislation conforms to the principal limitation on the
legislative power of local governments -- that their laws be "not
inconsistent with the provisions of this constitution or any
general law . . . ." See New York State Constitution, article
IX, § 2(c). The relevant general law here is the Vehicle and
Traffic Law ("VTL").
This latter question -- whether the proposed law regarding
the use of hand-held mobile phones in a motor vehicle is
inconsistent with the VTL -- divides, in turn, into two
questions: (1) Has the authority to legislate on this subject
been specifically delegated to the County pursuant to the VTL?;
and (2) If not, is the County preempted by the VTL from passing
such a law? Examination of the relevant statutes and legal
precedents leads us to conclude that authority to enact the
proposed local law has not been delegated to the County and that
such legislation appears to be preempted by the VTL.

B. Legislation Regarding Hand-Held Mobile Phone Use in
Motor Vehicles Falls Within the General Scope of Home
Rule Powers

The general delegation of power to localities to regulate
streets and roads within their boundaries is contained in Article
IX, § 2(c)(6) of the New York Constitution and Municipal Home
Rule Law § 10. Specifically, the New York Constitution grants
local governments the power to adopt local laws relating to "the
acquisition, care, management and use of its highways, roads,
streets, avenues and property," provided that such laws are not
inconsistent with the provisions of the Constitution or any
general law. Likewise, the Municipal Home Rule Law grants
municipalities the power to adopt local laws relating to their
own "property, affairs or government" and gives them the power to
enact laws relating to the "government, protection, order,
conduct, safety, health and well-being of persons or property
therein," provided such laws are not inconsistent with any
general law or with the Constitution. Mun. H. R. Law
§§ 10(1)(i), (ii)(a)(12).
Regulation of hand-held mobile phone use in motor vehicles
clearly falls within the broad scope of home rule powers
described above. The more difficult question, which we turn to
now, is whether the County's exercise of its police powers to
enact such a local law is inconsistent with State law.

C. The Legislation Appears To Be Inconsistent with State Law

Determination of whether the proposed local law is
inconsistent with State law requires examination of (1) whether
the VTL specifically delegates the authority to the locality to
regulate mobile phone use in motor vehicles; and (2) if not,
whether the proposed local law is preempted by State law.
Preemption can be either express or implied. Express preemption
occurs when State law expressly prohibits localities from
legislating in a particular area. Implied preemption occurs
where, notwithstanding the absence of an express preemption,
State law indicates a purpose to occupy an entire field of
regulation. See Ames v. Smoot, 98 A.D.2d 216, 217-219 (2d Dept.
1983), appeal dismissed, 62 N.Y.2d 804 (1984).

1. Delegation

The VTL has not specifically delegated to the County the
authority to restrict hand-held mobile phone use in motor
vehicles traveling on roads within the County.
The VTL contains numerous specific delegations of
legislative power to counties to regulate traffic in sections
1650-1652-b. For example, section 1650 authorizes counties to
allocate the center lane of a highway for traffic moving in a
specified direction; to order signs directing slow-moving
traffic, buses, and other vehicles; and to exclude vehicles of
certain weights from county roads. See VTL §§
1650(a)(1),(2),(4). None of the specific delegations to the
counties in the VTL embraces the subject matter of the County's
proposed law.

2. Preemption

Because the power to legislate in this area has not been
specifically delegated to the County, the proposed law would be
valid only if it is not preempted by State law. Notably,
circumstances in which a local law that does not fall within a
specific delegation in the VTL has nevertheless been determined
not to be preempted are extremely rare. See, e.g., 1914 Op. Atty
Gen. (Inf.) 149 (although Motor Vehicle Law does not delegate
power to legislate regarding excessive smoke or "muffler
cutouts," local law forbidding same not preempted because it is
aimed at "nuisances [that] arise incidentally in connection with
automobiles.")

a. Express Preemption

VTL § 1604 expressly prohibits local authorities from
legislating in four areas related to motor vehicles and their use
of the highways:

Except as otherwise provided in this chapter,
local authorities shall have no power to
pass, enforce or maintain any ordinance, rule
or regulation [1] requiring from any owner of
a motor vehicle . . . any tax, fee, license
or permit for the use of the public highways,
or [2] excluding any such owner . . . from
the free use of such public highways . . . or
[3] in any other way restricting motor
vehicles . . . or their speed upon or use of
the public highways; or [4] setting aside for
any given time a specified public highway or
any part thereof constructed in whole or in
part at the expense of the state for
exhibitions, shows, exercises, entertainments
or meetings . . . .
VTL § 1604 (numbers in brackets added). This broadly preemptive
provision is in harmony with VTL § 1600, which provides that
"[t]he provisions of this chapter shall be applicable and uniform
throughout this state and in all political subdivisions and
municipalities therein," and prohibits local authorities from
enacting laws that conflict with the VTL "unless expressly
authorized herein."
If the proposed law fits into any of the four categories set
forth in section 1604, it is, in the absence of a specific
delegation from the State, expressly preempted. Because the
proposed law clearly involves neither a permit or fee requirement
(category [1]) nor the setting aside of roads for public purposes
(category [4]), only the second and third categories denoted
above warrant close consideration.
The second class of legislation -- that which excludes motor
vehicle owners or operators from "free use" of the highways -- has been addressed, in judicial decisions and opinions of the
Attorney General, more frequently than the third class of
expressly preempted laws. Local laws that have been deemed
preempted because they constitute exclusions from free use under
VTL § 1604 or its predecessor, VTL § 54, include a village
ordinance prohibiting parking in a residential area without a
"resident parking permit," State of New York v. Speakerkits,
Inc., 83 N.Y.2d 814 (1994); an ordinance precluding nonresidents
from traveling through the Village of New Hyde Park, People v.
Grant, 306 N.Y. 258 (1953); a New York City law banning persons
in single-occupant private passenger cars from using four East
River bridges to drive into Manhattan on weekday mornings,
Automobile Club of New York, Inc. v. City of New York, 1981 N.Y.
Misc. Lexis 3518 (Sup. Ct. N.Y. Co. 1981); a law prohibiting the
use or possession on New York City streets of vehicles "having
the appearance [e.g., color] of" vehicles used by the fire
department or fire patrol, Great Atlantic & Pacific Tea Co. v.
City of New York, 17 N.Y.S.2d 270 (Sup. Ct. N.Y. Co., Special
Term 1940); and implementation of a "parking coupon system" by
the City of Albany, 1979 Op. Atty Gen. (Inf.) N.Y. 117 (relying
on both the prohibition against local laws requiring tax, fee,
license or permit and the prohibition against excluding from free
use).
To date, no judicial decision or Attorney General's Opinion
has applied the "excluding from free use" clause of section 1604
to a law forbidding the use of cell phones, or to any analogous
specific conduct that an individual might engage in while inside
a motor vehicle. Moreover, the language of the clause and the
decisions interpreting it suggest that it addresses the issue of
the basic access of a vehicle or operator/owner to the highways
rather than the operator/owner's conduct in a vehicle. While
there is a counter-argument to be made that the distinction
between access and conduct cannot be maintained (consider, for
example, whether the prohibition on single-occupant vehicles in
Automobile Club of New York, supra, addresses access or conduct),
it appears, on the whole, inappropriate to classify the proposed
law as one that "exclud[es]" individuals "from the free use of
such public highways" under section 1604.
Turning to the remaining category, it seems that the
proposed law could be properly classified as falling within
category [3] -- as a provision that "in any other way restrict[s]
motor vehicles[']. . . use of the public highways." Although
this third preemptive category has received almost no comment in
prior opinions of the Attorney General or judicial decisions,
both its language and context support a broad reading.
To begin, the phrase "in any other way" implies that the
clause has a wide scope. The key issue then becomes determining
the scope of the next phrase in section 1604, "restricting motor
vehicles[' ]use of the public highways." Section 300, which sets
forth the proper application of Title III of the VTL, provides
useful guidance. It states:
Except as otherwise expressly provided in
this chapter, this title shall be exclusively
controlling:
(a) On the use by motor vehicles of public highways,
and
(b) On the accessories used upon motor
vehicles and motorcycles and their
incidents.
Title III includes Article 9, entitled "Equipment of motor
vehicles and motorcycles." Significantly, that article includes
prohibitions against operating a motor vehicle while wearing more
than one earphone attached to an audio device, VTL § 375(24-a),
and operating a motor vehicle equipped with a television set
within the driver's view, VTL § 375(24). These proscriptions are
very similar to the proposed local law regarding hand-held mobile
phones. Because the Legislature has determined that such
prohibitions regulate "use by motor vehicles of public highways,"
the logical conclusion is that the proposed local law similarly
regulates "motor vehicles[' ]use of the public highways" as well.
Accordingly, section 1604 should be interpreted as preempting the
proposed local law.
The conclusion that the proposed local law is expressly
preempted is supported by the evident intent of the VTL as a
whole to establish broad preemption interrupted only by specific
delegations of power to localities to regulate matters pertaining
to motor vehicles and the State's highways. As stated in a
previous opinion, "[t]he comprehensive preemption of regulation
of the streets and highways provides little flexibility." 1999
Op. Atty Gen. (Inf.) N.Y. 15.
It may be argued to the contrary that the statute's
prohibition against restrictions on motor vehicles' use of the
highways refers only to the appearance of or appurtenances to
motor vehicles. Such a contention is undercut not only by the
considerations discussed above but also by the
inclusion of a prohibition of restrictions on motor vehicles'
"speed upon" the public highways in section 1604's third
preemptive category. The inclusion of vehicle speed -- which,
like the proposed statute, relates to the manner in which one
drives a vehicle -- further undermines the claim that only
limitations on the physical attributes of vehicles are forbidden.
On balance, we conclude there is a strong argument that the
proposed law would be expressly preempted by the VTL.

b. Implied Preemption

Even assuming that the proposed local law is not expressly
pre-empted by section 1604, it may well be found impliedly
preempted by the VTL as a whole. A local law is impliedly
preempted when, notwithstanding the absence of an express
preemption, the statutory scheme evidences an intent to "occupy
the entire field so as to prohibit additional regulation by local
authorities." See People v. DeJesus, 54 N.Y.2d 465, 469 (1981)
(quoting Robin v. Incorporated Vill. Of Hempstead, 30 N.Y.2d 347,
350 (1972)). In assessing whether such an intent is manifested,
courts look to the purpose and scope of the State legislative
scheme, including whether it evinces a desire for statewide
uniformity in a given area. Robin, 30 N.Y.2d at 350.
The VTL is an "elaborate and detailed regulatory scheme,"
Vatore v. Comm'r of Consumer Affairs of the City of New York,
83 N.Y.2d 645, 649 (1994), controlling the use of motor vehicles
on public highways. The scope of the VTL is comprehensive,
covering a wide range of subjects, including traffic regulations,
driver safety, equipment, and other rules of the road. The VTL's
underlying purpose to establish statewide uniformity in this area
is manifest in its language, see VTL § 1600 ("The provisions of
this chapter shall be applicable and uniform throughout this
state . . . ."), pervades its legislative history, and has been
repeatedly noted by the courts, see, e.g., People v. Scanlan,
27 Misc. 2d 442, 443 (Rockland Co. Ct. 1961)("It is apparent that
the Legislature intended to enact a uniform law throughout the
State regulating the use of motor vehicles . . . ."); City of
Buffalo v. Lewis, 192 N.Y. 193, 199 (1908); People v. City of
Hornell, 256 A.D. 113, 115 (4th Dep't) aff'd, 282 N.Y. 555
(1939); People v. President and Trustees of Ossining, 238 A.D.
684 (1st Dep't 1933), aff'd, 264 N.Y. 574 (1934).
In Great Atlantic & Pacific Tea Co., supra, the court
observed that failure to recognize the State's exclusive control
over the color of motor vehicles would "create a condition of
confusion and chaos," and "would violate the policy and purpose
of uniformity upon which the Vehicle and Traffic Law is based."
17 N.Y.S.2d at 272. "It might become necessary for an owner of a
vehicle in traveling from city to city, within the State, to
change the color of the vehicle as he entered each city having a
different local law regarding such color." Id. at 272-73. To
hold that State law does not preempt the proposed local law would
create a similar problem with regard to hand-held mobile phone
use in motor vehicles. Indeed, such a holding would authorize
patchwork legislation, varying from locality to locality, with
regard to almost any safety-related driver conduct, from tuning a
car radio to eating a sandwich to consulting a map.
Even if the subject targeted by the proposed legislation is
drawn more narrowly to embrace only such safety-related behavior
of drivers (rather than all conduct related to motor vehicles and
the State's highways), the intent of the VTL to occupy this field
is apparent in a number of analogous provisions aimed at
promoting safety by regulating the conduct of drivers. In a
provision most closely related to the instant law, this subject
matter has been addressed in VTL § 375(24-a), which restricts the
use of earphones while driving a car:
It shall be unlawful to operate upon any
public highway in this state a motor vehicle,
limited use automobile, limited use
motorcycle or bicycle while the operator is
wearing more than one earphone attached to a
radio, tape player or other audio device.
The legislative history of this provision, adopted in 1983,
indicates that it was aimed at preventing people from wearing
"walkmen" while driving. It was enacted to ensure the safety of
drivers and pedestrians and to reduce the risks caused by
distraction to the driver. According to the Sponsor's Statement:
"Vehicle safety requires complete concentration by the driver as
to the sights and sounds around him . . . The wearing of
earphones attached to an audio device will only limit the
concentration ability and tend to defeat the traffic safety
purpose."
Other provisions in the VTL address similar concerns about
driver distraction and control of the vehicle. Section 375(24)
makes it unlawful to operate a motor vehicle on a public highway
equipped with a television receiving set within view of the
operator. VTL § 1226 requires that "no person shall operate a
motor vehicle without having at least one hand . . . on the
steering mechanism at all times when the motor vehicle is in
motion." Section 1212 contains a general proscription against
reckless driving. All of these provisions, aimed at driver
concentration and safety, address safety issues similar to those
raised in the proposed mobile phone law, and, together with the
broad preemptive language of VTL § 1600, indicate the State's
intent to be the sole legislator in the area unless it
specifically delegates such power to local authorities.
In short, because the VTL evidences an intent to occupy the
field of driving safety regulation, it is likely that the
proposed law is impliedly preempted.
Based on the above analysis, we conclude that there is a
substantial possibility that the County of Rockland lacks the
authority to pass a local law prohibiting a driver from holding
and using a hand-held mobile phone while operating a motor
vehicle on County roads.
The Attorney General renders formal opinions only to
officers and departments of State Government. This perforce is
an informal and unofficial expression of the views of this
office.

Very truly yours,

MARK GIMPEL
Deputy Solicitor General

ALLISON PENN
Assistant Solicitor General