What You Need to Know about Driveway Permits and Road Access: Part I

The driveway will be the end of the road. So sings Miley Cyrus in the song “Driveway.” Actually, Miley, a driveway normally is just one access point along a road, not necessarily the road’s end.  But I’m not sure that you would want to work that kind of detail into your song lyrics. Some might find it a little hard to imagine singing about a road connection with a residential or commercial driveway. But then again it’s also unlikely that Miley Cyrus (or her lyricist) thinks like a transportation planner or traffic engineer. Nonetheless, the way the North Carolina Department of Transportation (NCDOT) or a North Carolina municipality regulates driveways that connect with public streets and highways is an important matter that attracts little attention. Here are some things that you planners, attorneys, and managers should know about driveway permits and access controls. Read more »

Internet Sweepstakes, One Year Later

Just over a year ago the North Carolina Supreme Court upheld the constitutionality of G.S. 14-306.4, the law that was intended to ban all video and internet sweepstakes parlors.  My colleagues and I blogged about the ruling here, here, and here, predicting that the court’s decision would not eliminate the state’s internet sweepstakes industry entirely. We thought there was enough wiggle room and ambiguity in the ban to allow creative sweepstakes operators to tweak their systems enough to (arguably) avoid the statute’s reach.

Recent newspaper articles suggest that our predictions were on the money. While the majority of sweepstakes businesses shut down after the Supreme Court ruling, plenty still remain open across the state.  State attorney general Roy Cooper likens the effort to ban sweepstakes to a game of “whack-a-mole”: “They come up in different kinds of forms. They come up with a different kind of nuance.”

My criminal law expert colleague Jeff Welty reports that late last month two sweepstakes operators from Tarboro may have been the first to be successfully prosecuted under G.S. 14-306.4.  Previously, a number of operators charged under the statute were found innocent because their systems either revealed winning entries without the use of “entertaining displays” or because their games involved skill or dexterity rather than simple luck. Using these same arguments, sweepstakes operators have filed lawsuits in several counties seeking to prohibit enforcement of the ban on their businesses.

Legal issues involving internet sweepstakes were not limited to the criminal law ban.  The taxation of these businesses made headlines last spring when the state’s highest court struck down the privilege license taxes levied by Lumberton on sweepstakes businesses as unconstitutionally high.  Two months later the state court of  appeals relied on that ruling to find similar taxes levied by Fayetteville also to be unconstitutionally high. In the months that followed, some cities lowered their privilege license taxes on sweepstakes or eliminated them entirely. Others continued to tax the sweepstakes that remained open.

So where does all of this legislation and legal activity leave us? How should local governments deal with existing or new sweepstakes businesses? Read more »

Who We Vote For in North Carolina

When we cast our votes in North Carolina, we elect candidates to lots of offices.  With what is sometimes referred to as the “long ballot,” we vote more than 5,000 fellow citizens into office.

Who are they?  For the most part, they can be almost anyone.  The state’s Constitution sets out a very short set of qualifications for election to office.  There is one basic rule:  In order to be eligible to hold an elective office in North Carolina, you must be eligible to vote for that office.  That means you must be a resident of the relevant jurisdiction (the state for statewide offices, the district for district offices, the county for county offices, and the city for municipal offices) and you must not be a felon serving a current punishment.  And then there’s a second rule:  you must be 21 years old.  That’s it.  Those are the qualifications for almost all offices and our state’s Supreme Court has made it clear that the legislature cannot add additional ones.

At the statewide level, we elect members of the Council of State and judges on our appellate courts. Read more »

Is the Dog Really “Potentially Dangerous?”

Under state law a local government official or board may determine that a dog is “potentially dangerous.” When that happens, the dog’s owner has a right to appeal the decision. What rules govern these appeals? The statute is a little sparse but these are clearly quasi-judicial proceedings.  Based on similar procedures used in other areas, such as land use, this blog sets out some general guidelines and practices for local governments to use when conducting these appeals.

Read more »

May Counties Charge Cities for Distributing RMV Taxes?

Have you paid your “Tag and Tax Together” yet? If you haven’t, you soon will.

As of September 1, 2013, everyone who registers a motor vehicle in North Carolina will be required to pay at the time of registration not only the registration fees but also the property taxes owed on that vehicle for the coming year.  I’ve discussed some of the unique property tax collection issues created by the new system in this blog post and this bulletin.

Today I focus on a question that lots of counties are asking now that the new system is in place: are counties authorized to charge municipalities a fee for distributing municipal property taxes on registered motor vehicles collected by the N.C. Division of Motor Vehicles and delivered to the counties?

The answer to this question is . . . unclear.  The relevant statutes don’t provide an easy answer.

My view is that a county cannot force municipalities to pay the county solely for the service of distributing taxes owed to those municipalities. But counties might be able to charge municipalities for additional services relating to those taxes such as processing refunds and releases.  Here’s my reasoning: Read more »

The FLSA’s Executive Exemption from Overtime Pay

Employees in “exempt” positions are not entitled to overtime pay, even if they work sixty hours or more in a single workweek. How does an employer determine whether a position is exempt under the Fair Labor Standards Act? A position is exempt from the FLSA’s overtime rules if it meets three requirements:

When May NC Local Governments Pay an Economic Development Incentive?

News outlets regularly report about the latest company that was lured to North Carolina through the payment of a cash economic development incentive by a local government and the state. Local government cash incentives often take the form of an annual cash payment to a company that is contingent on the company’s creation of jobs, investment in taxable property in the jurisdiction, and timely payment of property taxes, among other conditions. The statutory authority for making the incentive payment is supplied by G.S. 158-7.1, and the local government is required to approve and account for how the incentive payment is expended by the recipient company pursuant to G.S. 158-7.2. The accounting of payments is accomplished through an incentive agreement in which the recipient company agrees, typically, to create jobs at a facility that involves leasing or purchasing land, constructing a building, and/or installing equipment in the jurisdiction.

For most of the last century, however, North Carolina local governments were not permitted to make such incentive payments. It wasn’t until 1996, following the loss of economic development projects to other states, that the North Carolina Supreme Court finally decided that economic development incentives serve a constitutionally-permitted public purpose—under certain conditions. These conditions continue to impose limitations on incentives today, so this post reviews the relevant limitations and summarizes the conclusions of a 2013 North Carolina Law Review article entitled, Economic Development Incentives and North Carolina Local Governments: A Framework for Analysis. Read more »