This may seem like a silly question. Mug shots (more formally, “booking photographs”) are everywhere, posted for free, searchable on line, sold in magazines at convenience stores, and regularly provided by law enforcement agencies. I never considered the question of whether North Carolina law enforcement agencies could withhold mug shots until a lawyer at the North Carolina Justice Center asked me to look at an analysis he prepared, arguing that mug shots are not subject to public access. There is no North Carolina case on this point, but now that I have looked into it, I believe that mug shots are criminal investigation records and that local law enforcement agencies have the authority to deny access to them. I’m not arguing that agencies should deny access, but I think it’s important for public agencies to understand that they can. I also think agencies have the authority to release some photographs and not others, if there is a legitimate law enforcement purpose for doing so.
Bigelow v. Town of Chapel Hill: When May State Constitutional Claims Against Local Governments Be Dismissed?
Local governments often find themselves being sued over injuries allegedly caused by their officials or employees. Such lawsuits sometimes include both tort claims and state constitutional claims premised on the same set of facts. For example, a plaintiff who believes she was wrongly arrested during a public protest might sue a city for false imprisonment and for violating her right to assemble under Article I, Section 12 of the North Carolina Constitution.
Like defendants in other cases, a local government may have a particular claim or an entire lawsuit dismissed at the outset of litigation if the plaintiff’s factual allegations, taken as true, do not state a valid legal claim. (The law generally requires a court to accept a plaintiff’s factual allegations as true when reviewing a motion to dismiss because the plaintiff hasn’t yet had the chance to compel the production of evidence favorable to his claims.) Additionally, a local government may have a claim under the North Carolina Constitution dismissed if adequate relief is available to the plaintiff through a tort claim. The existence of an adequate alternative remedy (“AAR”) results in the dismissal of a state constitutional claim, regardless of whether the plaintiff’s factual allegations describe a constitutional violation.
The recent opinion of the North Carolina Court of Appeals in Bigelow v. Town of Chapel Hill, ____ N.C. App. ____ (May 7, 2013), limits the authority of trial courts to dismiss state constitutional claims based on the availability of an AAR. A cursory review of the opinion could also leave the impression that, even when a plaintiff’s allegations fail to allege a violation of the North Carolina Constitution, a trial court may not dismiss a state constitutional claim so long as the existence of an AAR is disputed. As explained below, this is a misreading of Bigelow. Read more »
One of the many bills that has drawn public and media attention this spring has been House Bill 150, a bill dealing with residential “design controls.” With certain notable exceptions it generally prohibits zoning or land subdivision regulations related to “building design elements” from being applied to one- and two-family dwellings. “Design elements” applicable to manufactured housing and historic landmarks and structures in historic districts are excepted. Likewise elements that are integral to the State Building Code, and flood hazard regulations associated with the federal flood insurance program, are also not subject to the bill. The bill has passed the House and awaits further action in the Senate.
One of the more bizarre arguments in support of the bill is that local government regulation of community appearance (“design”) is, except with respect to the situations noted above, statutorily unauthorized. In other words some argue that the activity proposed to be banned has been illegal all along. Is that so? If it is not so, what tips can be provided to those local governments who wish to proceed with such regulations? Read more »
A small restaurant on the edge of town has been in operation for many years. Rick’s Cafe Carolinian was built in the 1940’s by Vic and Ilsa Laszlo at a time when the surrounding land was only woods and fields. Residential subdivisions gradually grew up around their business. When the town adopted zoning in the 1970s, this entire area was zoned for residential use.
The café is now owned by Vic and Ilsa’s grandson Sam. While the business has been stable over the years, Sam believes it needs to be substantially modernized to remain viable. He would like to do the following. First, he would like to build a modest addition to the side of the building to expand the café’s small bar area. This would allow Sam to add the piano bar of his dreams. Second, he would like to convert a large unused back room into extra seating space for the café. This room has only been used for storage for decades. Some say that Sam’s grandparents used this back room for an illicit gaming operation in the café’s early days, but that is another story. Now, with some modest renovations, it could add 30% more seating space, helping to pay off the loans he needs to take out for his renovations. Finally, he would like to completely replace the building’s wiring, plumbing, and heating/air conditioning systems, and while he is at it, replace all of his kitchen equipment with modern appliances. He knows this will cost a good deal, but he wants to make the building comfortable, more functional, and bring it up to modern code standards.
Sam ran these ideas by some of his regular Friday evening bar customers as several of them were builders and contractors knowledgeable about such things. One of the regulars happened to be Hank Strasser, a retired builder who is now the town zoning officer. Hank agreed that Sam’s plans would be a great improvement for the café, but immediately saw a red flag. The building housing Rick’s is structurally sound and meets all of the town standards regarding setbacks and the like. But the cafe is not allowed in this zoning district since the land is zoned for residential rather than commercial uses. Hank told Sam that he could always seek a rezoning, but that would be a long shot in this situation. The neighbors had vigorously opposed several prior proposals to rezone parcels for commercial use and the town’s new land use plan calls for the entire area to stay predominately low density residential. Hank explained that since Rick’s was a nonconforming use, the ordinance prohibits enlargement or expansion. “What, pray tell,” says Sam, “does that mean for my plans to improve the café?”
The answers are not as certain as one might think, especially if the town ordinance only has the typical brief provisions regulating nonconformities. There are important policy implications to consider when framing limits on nonconformities, balancing the interests of the landowner, the neighbors, and the community. A local government should carefully consider these implications and make clear, explicit policy choices when the restrictions are adopted. Read more »
The United States Supreme Court recently upheld a provision in the state of Virginia’s Freedom of Information Act (FOIA), which allows only Virginia citizens to request public records under the act. The case is McBurney v. Young. Could a North Carolina local government impose a similar limitation? The answer is “no”. Our statute provides access to “persons” and has never been interpreted to apply only to persons who are residents or citizens of the state. A local government has no authority to limit the scope of the state statute. The Supreme Court decision suggests, however, that the United States Constitution would not prevent the North General Assembly from creating such a limitation.
Pop quiz: Which existing North Carolina tax still references pressing clubs, addressograph machines, bagatelle tables, and other linguistic dinosaurs that disappeared from regular conversation back when FDR resided in the White House?
Here’s a hint: it’s the same tax that requires local tax officials and taxpayers to navigate more than 60 different exemptions and caps housed in multiple chapters of state and federal law to determine exactly how much tax is owed for a particular business activity.
If you guessed privilege license taxes, it’s your lucky day.
Of course if you got this question correct it means you are probably the unlucky person charged with administering this tax. Which means you are the person responsible for counting vending machines and restaurant seats and defining the term “bowie knife” and distinguishing between the sale of sandwiches and the sale of crackers with peanut butter filling and answering a hundred other seemingly trivial questions on which local privilege license tax obligations often rest.
I’ve blogged about the administration of local privilege license taxes here, here, and here. Those posts dealt mostly with privilege license taxes based on gross receipts, meaning they are calculated as a percentage of a business’ income.
But not all businesses can be subject to gross receipts privilege license taxes. That approach is permitted only for businesses that are not covered by Schedule B, the nickname given to a collection of statutes that either exclude a particular type of business from local privilege license taxes or set the maximum level for local privilege license taxes on a particular type of business. Read more »
It’s not a meeting that anyone wants. The public works director is going to have to tell the truck driver that his poor performance is threatening his job. The city manager is going to tell the police chief that a number of the chief’s management decisions have been unacceptable. The county finance officer must talk with the payroll clerk about the clerk’s arrest last Saturday night.
The truck driver, the police chief, and the payroll clerk are all afraid for their jobs, and they are distrustful of the boss. They ask for permission to record the meeting.
When an employee of a unit of government in North Carolina asks for such permission, must the supervisor grant it? Read more »