Following the Senate, the North Carolina House of Representatives voted to override Governor Cooper’s veto on Session Law 2024-57 (Senate Bill 382) last week. The legislation effects sweeping change to the executive and judicial branches and elections law. It marks the third round of public support for Hurricane Helene disaster relief. Subpart II-D (“Justice and Public Safety”) of the bill also modifies an affirmative defense available to individuals charged with violating certain local ordinances. This post explains the statutory amendment and its potential impacts.

G.S. 160A-175 and G.S. 153A-123 empower cities and counties, respectively, to impose fines and penalties for violations of their ordinances. Sub-section(b) of each statute provides that violation of a local ordinance only constitutes a misdemeanor or infraction if the jurisdiction specifies as much in the ordinance. The same provisions also prohibit any ordinance specifying a criminal penalty from being enacted at the meeting in which it is introduced. (School of Government faculty members Frayda Bluestein and Jeff Welty have written about the General Assembly’s decriminalization of most local ordinance violations in 2021.)

G.S. 14-4 establishes violations of certain local ordinances as Class 3 misdemeanors, with fines no greater than $500.00. Sub-section(c) provides for an affirmative defense to an ordinance violation. Under the provision, “[a] person may not be found responsible or guilty of” a misdemeanor for violating a local ordinance, “if, when tried for that violation, the person produces proof of compliance with the local ordinance” in one of two ways. The provision, as amended, follows:

Under the old law, a defendant could establish an affirmative defense if there were “no new alleged violations of the local ordinance within 30 days from the date of the initial allegation.” Or, an individual could also establish an affirmative defense by “provid[ing] proof of a good-faith effort to seek assistance to address any underlying factors related to unemployment, homelessness, mental health, or substance abuse that might relate to the person’s ability to comply with the local ordinance.” Senate Bill 382 amends each ground for proving an affirmative defense.

First, the law significantly increases the time period during which no new ordinance violations may occur from 30 days (1 month) to 12 months (365 days). This marked expansion of the “waiting period” may make mounting a defense against this type of charge difficult. For example, if a case is prosecuted 6 months after the initial alleged ordinance violation, mathematically, a defendant would not be able to demonstrate the absence of additional ordinance violations for 12 months since the initial alleged violation. In this way, the amendment effectively eliminates this ground to establish a defense for any case prosecuted within one year of the initial alleged ordinance violation. Defendants seeking to rely upon this defense may seek continuances to allow the 12 months to accrue.

Second, whereas the other means to establish an affirmative defense previously required proof of efforts to address certain underlying factors, the amendment now requires documented proof of those facts. Chapter 14 does not define “documented.” Two canons of statutory construction may be useful. A basic rule of statutory interpretation is to give language its plain meaning where a statute is unambiguous. See Sturdivant v. N.C. Dep’t of Pub. Safety, No. 130PA23-1, at 7 (N.C. Dec. 13, 2024). Merriam-Webster defines the verb “document” as “to furnish documentary evidence of” or “to provide with factual or substantial support for statements.” Similarly, Oxford offers the following definition: “to record something in the form of a written document, film, photograph, etc.” The surplusage canon of statutory construction also dictates that no word in a statute should be ignored and each word should be given full effect. See In re LL, No. 333PA23-1, at 10 (N.C. Dec. 13, 2024). Presumably, then, “documented proof” must mean something more than proof. The amendment probably requires some form of documentation, not merely testimony, to mount a defense to an alleged ordinance violation under this prong. In the instance of unemployment, for example, a copy of an unemployment check, job application materials, or a letter of termination of employment may suffice. For the factors of mental health or substance abuse, perhaps a medical diagnosis or invoice from a treatment facility would constitute “documented proof.” One could imagine an eviction notice, intake records from a shelter, or a photograph of temporary living conditions from an unhoused person as adequate documentation.   

This amendment goes into effect on January 1, 2025, and applies to certain ordinance violations committed on or after the New Year.