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  • Regulating Electronic Cigarettes in North Carolina, Part 1: Federal and State Regulation

    Authored by: on Thursday, July 31st, 2014

    If you watch television commercials or consume any form of news media, you’ve heard of e-cigarettes—battery-operated products that can look a lot like conventional cigarettes, but they don’t burn tobacco. They work by heating a cartridge with a solution that includes nicotine and sometimes flavors. Heating the solution produces a vapor that the e-cigarette user inhales. Many brands of e-cigarettes have an end that lights up when the product is in use, mimicking the appearance of a conventional tobacco cigarette. Use of the products is described as “vaping” rather than smoking.

    E-cigarettes are the subject of pending federal rules, and they have recently been the subject of some state law regulation as well. Depending on where you live, they may also be the subject of local regulations. In this two-post series, I’ll summarize the current status of e-cigarette regulation in North Carolina. Today’s post addresses federal and state regulation of electronic cigarettes and other vapor products. Part 2 will address local government authority to regulate these products in North Carolina. Read more »

  • New Construction Contractor Prequalification Requirements

    Authored by: on Tuesday, July 29th, 2014

    Since 1995, local governments have had express statutory authorization to prequalify bidders for public construction contracts under G.S. 143-135.8. If you look to this statute for guidance on the criteria or process to be used for prequalifying bidders, you will find the following:

    “Bidders may be prequalified for any public construction project.”

    That’s it? That’s it. For almost 20 years, local governments have had the legal authority to prequalify bidders for construction projects but have had no statutory guidance on how to do it. Not many local governments use prequalification, and those that do often look to the NC State Construction Office’s prequalification forms and scoring matrix for guidance (these documents are available on the SCO website). Now, thanks to legislation recently enacted by the General Assembly, specific statutory procedures and requirements will apply to the prequalification process.

    Read more »

  • Governmental Immunity for Local Government Buildings: What Are the Current Rules?

    Authored by: on Friday, July 25th, 2014

    As I have previously explained here and here, governmental immunity bars tort claims (negligence, assault, trespass, etc.) against cities and counties for personal injuries or property damage caused by the carelessness or intentional wrongdoing of their personnel in the performance of governmental functions. When the harm to a plaintiff stems from the performance of a proprietary function, however, governmental immunity does not apply, and the local government is subject to liability on the same basis as a private employer. Recently, in Bynum v. Wilson County, the North Carolina Supreme Court had to decide whether governmental immunity bars tort claims arising from an individual’s fall at a county building used for both governmental and proprietary functions. This blog post takes a quick look at the history of the governmental/proprietary distinction and analyzes the impact of Bynum on local government liability for injuries caused by unsafe premises. Read more »

  • File or Get Fined: New Penalties for Violating MPO/RPO Ethics Disclosure Requirements

    Authored by: on Wednesday, July 23rd, 2014

    If you are a local government official who serves on the TAC of a MPO or RPO, recently enacted legislation makes you subject to civil fines and potential criminal prosecution for failing to file or filing incomplete your SEI and RED.

    Huh? If you know what this means, you definitely should keep reading. Even if you don’t know what these acronyms mean, you might still be interested.

    Read more »

  • King v. Town of Chapel Hill: The Supreme Court Issues a Major Decision on the Police Power of Local Governments (Part 2)

    Authored by: on Tuesday, July 22nd, 2014

    In my last blog post I listed and discussed seven points that local governments should take away from King v. Town of Chapel Hill, perhaps the North Carolina Supreme Court’s most significant decision yet on the general police power of local governments. Part 1 of my analysis focused primarily on the portions of King that uphold the broad exercise of regulatory powers by cities and counties. As I noted, however, King also has much to say, both directly and indirectly, about constitutional and statutory limitations on the police power. This blog post picks up where my last one left off and offers five additional takeaways from King. Read more »

  • Court of Appeals Opines on Ptax Appeals

    Authored by: on Monday, July 21st, 2014

    If you could change one provision in the Machinery Act, which would it be?  Near the top of my list would be standardizing the deadline for property tax appeals to county boards of equalization and review (“BOERs”).

    The Machinery Act generally succeeds at creating a transparent, consistent system of taxation.  Sadly the deadline for appeals to the BOER is neither transparent nor consistent, a situation that leads to taxpayer confusion and complaints.  It also led to a recent Court of Appeals ruling on a dispute over the timeliness of a Guilford County taxpayer’s BOER appeal.

    This blog post describes the current law, explains the Court of Appeals decision, and offers a simple statutory solution. Read more »

  • The FLSA’s Administrative Exemption from Overtime Pay, Part 2: Some Examples

    Authored by: on Friday, July 18th, 2014

    In previous blog posts, I discussed the executive and administrative exemptions to the Fair Labor Standards Act rule that an employee is entitled to overtime pay after working 40 hours in a week. When an exemption applies, the position is said to be “exempt” and the employee is not entitled to overtime pay even at 60 or 80 hours worked in a week. Whether a position is exempt under the executive duties test or the administrative duties test, it must satisfy the following requirements:

    • the position must be paid on a salary basis; and
    • the position is must be paid a minimum of $455 per week.

    The executive duties test evaluates whether the position is a management position with significant authority over other employees. The administrative duties test evaluates whether the position is an office position that supports management and has significant decision making authority in areas other than supervision of employees. To satisfy the administrative duties test, a position must meet an additional two requirements. The position must also:

    • have a primary duty of office or nonmanual work directly related to management or general business operations of the employer, and
    • perform work requiring the exercise of discretion and independent judgment on matters of significance to the employer.

    As I noted in my earlier blog post on the administrative duties test, these two requirements are anything but straightforward. In this blog post, I’ll continue the discussion of the administrative duties test by taking a close look at some examples.
    Read more »