Does North Carolina’s New Smoking Ban Apply to your Country Club?

UPDATE: In March 2012, the N.C. Court of Appeals held that the smoking law’s exemption for country clubs extends only to nonprofit country clubs. Edwards v. Morrow, 725 S.E.2d 366 (N.C. App. Mar. 20, 2012), appeal dismissed and review denied, 2012 WL 6651164 (N.C. Dec. 12, 2012). For more information, see this post.  

Since January 2, 2010, smoking has been prohibited in most restaurants and bars in North Carolina, as well as many lodging establishments. However, there is an exception to the ban for private clubs. G.S. 130A-492(11) defines a “private club” as “a country club or an organization that maintains selective members, is operated by the membership, does not provide food or lodging for pay to anyone who is not a member or member’s guest, and is” a non-profit establishment. The definition concludes, “for the purposes of this Article, private club includes country club.” In the weeks since the law took effect, this provision has provoked two frequently asked questions: (1) How do you know if an establishment is a country club? Must it meet certain criteria, or is it sufficient if the establishment simply uses the words “country club” in its name? (2) To be exempt from the smoking ban, must a country club (whatever that is) meet the conditions set forth in the definition for private clubs? Read more »

Application of Stam v. State to Local Governments’ Employee Health Insurance Coverage of “Medically Unnecessary” Abortion Procedures

UPDATE August 2013: During the 2013 legislative session, the General Assembly enacted S.L. 2013-366, which prohibits a local government from providing health insurance coverage for abortions that is greater than that provided by the State Health Plan for Teachers and State Employees under Article 3B of Chapter 135 of the General Statutes.

Several local government officials recently have asked me whether a 1981 North Carolina Supreme Court case, Stam v. State, 302 N.C. 357, 275 S.E.2d 439 (1981), prohibits a local government from (1) providing (or contracting for the provision of) health insurance for its employees that includes coverage for “medically unnecessary” abortion procedures; or (2) funding such health insurance coverage with local property tax proceeds. As is explained below, Stam held that counties lacked the authority to fund medically unnecessary abortions for indigent women through their social services programs. It did not address the issue of funding local government employee health insurance coverage for such procedures. As such, Stam does not prohibit a local government, if it so chooses, from providing, and funding with property tax proceeds, employee health insurance coverage for lawful abortions. Please note that the following analysis is limited to this narrow issue. It does not expound on whether a local government can or should exclude such coverage from its employee health insurance policies. Read more »

What’s a “Public Office”?

What’s a “Public Office”?

I am often asked to explain what it means to hold a public office. The questioner is sometimes trying to decide whether a particular person must take an oath, which is required of public office-holders.  Or, the person may be trying to determine whether certain positions may be held simultaneously under North Carolina’s constitutional and statutory multiple office-holding restrictions.

North Carolina’s case law on office-holding is both venerable and extensive. Indeed, most of the rules that we follow today were originally developed in the late 1800s and the early 1900s.

Interest in office-holding probably arose because of a provision in North Carolina’s pre-1971 constitutions that allowed a person to hold only one “office or place of trust or profit” at a time. (“Office” and “place of trust or profit” have basically the same meaning.) Perhaps because of this rule’s strictness, questions often arose about two issues.

First, it was important to know the meaning of the term “office or place of trust or profit” because the ban did not apply to positions that were not such “offices” or “places.” Second, questions arose about the distinction, if any, between holding an office and performing the duties of an office as part of the responsibilities of another office, in order to avoid violating the ban. This practice is called ex officio office-holding. Both of these issues remain important today, even though the present multiple office-holding rules are somewhat more liberal.

In this post, I will explore the meaning of the term “public office,” and will explain generally what are and are not public offices.  Read more »

Boosted Local Government Authority under Minimum Housing Codes

[2011 UPDATE: For more detail on this topic, see the following 2011 book: Housing Codes for Repair and Maintenance: Using the General Police Power and Minimum Housing Statutes to Prevent Dwelling Deterioration]

North Carolina experienced a record number of foreclosures in 2008. Then, in 2009, even more. January 2010 was worse than January 2009 (the latest foreclosure data can be viewed here). North Carolina communities are seeing unprecedented numbers of vacant and abandoned homes. When these dwellings deteriorate to the point that they become “unfit for human habitation,” cities and counties possess authority under the Minimum Housing Standards statutes (G.S. 160A-441 et seq.) to order owners to repair or demolish the unfit structures. Recent amendments contained in Session Law 2009-279 gave a boost to local government authority under the statutes, essentially shifting some discretion from dwelling owners to local governments. This post explains that shift. Read more »

Property Tax Refunds

Which of these taxpayers is entitled to a property tax refund?

Fixing an Error on a Zoning Map

 The mayor is finishing lunch with a couple of friends at the diner downtown. Just as she is about to dig into the best banana pudding in the state, an irate constituent barges in. Reaching the mayor’s booth, the red-faced constituent blurts, “I’ve really had it. Your gross incompetence is costing me thousands. Somebody needs to fix this zoning mess, Madame Mayor, and they better fix it fast. If you can’t get this fixed by the end of the day, you’ll be hearing from my lawyer. You’ll never get elected dog catcher if you can’t straighten this out in a hurry.” Read more »

Who’s Responsible for the Utility Bill?: Collection Remedies for Non-Payment by Tenant

A tenant signs up to receive water or sewer utility services and then falls delinquent on her payments. The tenant moves out and the local utility provider is left with an unpaid bill (or series of unpaid bills). What can (and should) the local utility provider do? Can it proceed against the property owner for the delinquent amount? Can it refuse future service to the tenant at a new location? Can it stick the tenant’s new roommate with the bill? Or, must it write-off the amount owed as a cost of doing business? Finally, could the local utility provider have prevented, or at least mitigated, this type of situation in the first place? Read more »