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HomeMy WebLinkAboutAgenda 12-14-21; 8-b - Second Reading of Amendments of Portions of the Code of Ordinances to Comply with North Carolina Session Law 2021-138 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 14, 2021 Action Agenda Item No. 8-b SUBJECT: Second Reading of Amendments of Portions of the Code of Ordinances to Comply with North Carolina Session Law 2021-138 DEPARTMENT: County Attorney ATTACHMENT(S): INFORMATION CONTACT: Resolution of Amendment John Roberts, County Attorney, 245- Ordinance Amendments 2318 PURPOSE: To consider the second reading of ordinances having misdemeanors as one of the available enforcement options and to repeal or re-adopt the misdemeanor provisions as may be required by law and adopt the proposed amendments and re-adopt existing language as described. BACKGROUND: The Board of Commissioners considered the first reading of this item at the December 6, 2021 Business meeting. As previously reported to the Board of Commissioners, the North Carolina General Assembly recently passed and the Governor signed into law an act that prohibits certain local government ordinances from having criminal penalties and requires a new adoption process for other local government ordinances that have criminal (misdemeanor) penalties. Part XIII of North Carolina Session Law 2021-138 reads in pertinent part: § 153A-123. Enforcement of ordinances. (b)Except for the types of ordinances listed in subsection (b 1) of this section, violation of a county ordinance may be a misdemeanor or infraction as provided by G.S. 14-4 only if the county specifies such in the ordinance. An ordinance may provide by express statement that the maximum fine, term of imprisonment, or infraction penalty to be imposed for a violation is some amount of money or number of days less than the maximum imposed by G.S. 14-4. Notwithstanding G.S. 153A-45, no ordinance specifying a criminal penalty may be enacted at the meeting in which it is first introduced. (b 1) No ordinance of the following types may impose a criminal penalty: (1) Any ordinance adopted under Article 18 of this Chapter, Planning and Regulation of Development or, its successor, Chapter 160D of the General Statutes, except for those ordinances related to unsafe buildings. (2) Any ordinance adopted pursuant to G.S. 153A-134, Regulating and licensing businesses, trades, etc. (3) Any ordinance adopted pursuant to G.S. 153A-138, Registration of mobile homes, house trailers, etc. 2 (4) Any ordinance adopted pursuant to G.S. 153A-140.1, Stream-clearing programs. (5) Any ordinance adopted pursuant to G.S. 153A-143, Regulation of outdoor advertising or, its successor, G.S. 160D-912, Outdoor advertising. (6) Any ordinance adopted pursuant to G.S. 153A-144, Limitations on regulating solar collectors or, its successor, G.S. 160D-914, Solar collectors. (7) Any ordinance adopted pursuant to G.S. 153A-145, Limitations on regulating cisterns and rain barrels. (8) Any ordinance regulating trees. In considering the recommended changes, the Board may wish to examine the full section of the ordinance in addition to the subsections shown on the attachment. Due to the number of sections in need of amendment or re-adoption, it is not practical to attach the entire 600 plus Code of Ordinances. The Board and the public may view the Code of Ordinances at this link. Each section may be accessed by clicking the Chapters linked on the left hand side of the page. In order to comply with the provisions of subsection (b1) of the session law the following ordinances should have the misdemeanor penalties removed from the ordinance. • Code of Ordinances --- Second Reading --- Text Amendments as reflected in Attachment 1 o Chapter 1; Section 1-7 — General Penalties --- Language amended o Chapter 4; Section 4-51 — Animal Control Generally --- Clarifies that not all violations of the Animal Control Ordinance are intended to automatically be misdemeanors o Chapter 8; Section 8-42 — Regulation of Massage Businesses --- Misdemeanor language replaced by civil penalty o Chapter 8; Section 8-81 — Tax on Gross Receipts for the lease or rental of motor vehicles --- Misdemeanor language removed o Chapter 8; Section 8-100 — Regulation of Sexually Oriented Businesses --- Misdemeanor language replaced by civil penalty o Chapter 8; Section 8-122 — Regulation of Mobile Food Vending Businesses --- Misdemeanor language replaced by civil penalty There is consensus among local government attorneys that the substantial change in the manner in which ordinances that have a misdemeanor penalty are adopted into law should be addressed by the governing board, out of an abundance of caution, by re-adopting those provisions under the new method. The ordinances in the Code that provide for a misdemeanor penalty include the following sections. • Code of Ordinances --- Second Reading --- No Changes to Language o Chapter 4; Section 4-42 --- Control of Dangerous Animals o Chapter 4; Section 4-133 --- Display of Wild Animals o Chapter 4; Section 4-184 --- Keeping Wild Animals o Chapter 14; Section 14-42 --- State of Emergency o Chapter 14; Section 14-83 --- Emergency Management o Chapter 14; Section 14-129 --- Rescue Franchise Agreements o Chapter 14; Section 14-261 --- Oil Pollution and Hazardous Substances 3 o Chapter 16; Section 16-37 --- Smoking o Chapter 16; Section 16-57 --- Noise o Chapter 18; Section 18-119 --- Parking (infraction not a misdemeanor) o Chapter 24; Section 24-1 --- Hunting and Fishing o Chapter 24; Section 24-3 --- Firearms Discharge o Chapter 24; Section 24-4 --- Fireworks Display o Chapter 34; Section 34-1 --- Disposal of Solid Waste o Chapter 34; Section 34-47 --- Solid Waste Collection and Disposal o Chapter 34; Section 34-77 --- Recyclable Materials o Chapter 36; Section 36-34 --- General Water Conservation o Chapter 36; Section 36-67 --- Emergency Water Conservation o Unified Development Ordinance — The UDO has provisions that must be amended and that amendment is addressed through a separate item on this meeting's agenda. There has been discussion previously by Board members about the necessity for the misdemeanor penalty provisions of some ordinances. Contrary to what may be generally believed, the goal of the penalty sections of the ordinances is compliance rather than punishment. Generally, a civil citation for a violation would issue prior to any misdemeanor citation. And for the most part, once the offender is in compliance the civil penalty, if any was assessed, may be waived in whole or in part depending on the circumstances. Having a misdemeanor option is another avenue to encourage compliance either through the threat of enforcement or when a civil penalty fails. The only ordinance violations that regularly involve misdemeanor penalties are violations of the Animal Control Ordinance. When misdemeanor violations are charged the outcome is out of the hands of county staff and is decided by the District Attorney. For these reasons misdemeanor penalties are rarely pursued for violations of ordinances other than for violations of the Animal Control Ordinance. FINANCIAL IMPACT: There is no financial impact associated with this item. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal impact associated with this item. ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal impact associated with this item. RECOMMENDATION(S): The Manager recommends the Board approve and authorize the Chair to sign the attached resolution adopting amendments to certain sections of the Code of Ordinances repealing some misdemeanor penalties and re-adopting other sections of the Code of Ordinances to comply with newly established standards for adoption of ordinances. RES-2021-073 4 RESOLUTION OF AMENDMENT A RESOLUTION AMENDING THE ORANGE COUNTY CODE OF ORDINANCES Be it Resolved and Ordained by the Board of Commissioners of Orange County, North Carolina: WHEREAS, in 2021 the North Carolina Legislature passed and Governor Cooper signed into law Session Law 2021-138; and WHEREAS, Part XIII of Session Law 2021-138 prohibits certain local government ordinances from containing criminal penalties and requires a new adoption process for other local government ordinances that have criminal (misdemeanor) penalties; and WHEREAS, a number of Orange County ordinances contain misdemeanor penalties that must be amended or repealed; and WHEREAS, it is best practice to re-adopt under the new adoption process those ordinances that may lawfully contain misdemeanor penalties; and WHEREAS, the Board of Commissioners conducted a first reading of the proposed amendments on December 6, 2021 and a second reading on December 14, 2021. NOW THEREFORE BE IT RESOLVED AND ORDAINED, that the Code of Ordinances, Orange County, North Carolina, Section 1-7(a), Section 1-7(e), Section 4-51(a), Section 8-42(a), Section 8- 81, Section 8-100(a), and Section 8-122(a) are hereby amended, which amendments read as shown in Attachment 1. AND BE IT FURTHER RESOLVED AND ORDAINED, that Section 4-42(h)(4), Section 4-133(b)(1), Section 4-184(b)(1), Section 14-42, Section 14-83, Section 14-129(a)(5), Section 14-261, Section 16-37(b), Section 16-57(c), Section 18-119, Section 24-10), Section 24-3(h), Section 24-4(e), Section 34-1(c)(1), Section 34-47(a), Section 34-77(3), Section 36-34, and Section 36-67(a) of the Code of Ordinances are re-adopted as currently adopted and as shown on Attachment 1. This Amendment is effective upon adoption. Adopted by the Orange County Board of Commissioners this 14th day of December, 2021. By: Attest: Renee Price, Chair Laura Jensen, Clerk to the Board Orange County Board of Commissioners [SEAL] 5 ORD-2021-029 Attachment 1 Ordinance Text Amendments and Re-Adoption Sections for first reading involving a repeal or substantive change in language. Sec. 1-7.-General penalty. (a) Should an ordinance in this Code of Ordinances provide that the violation thereof is a misdemeanor then aAny person violating or failing, refusing or neglecting to comply with any provision or requirement of any section Or of this Cede,that ordinance or section of this Code of Ordinances er any , shall be guilty of a misdemeanor as provided by NCGS 14-4 and punished by a fine not to exceed $500.00, or shall be imprisoned for not more than 30 days,for each offense. (e) Except as otherwise specified herein or prohibited by law, i#any violation of this Code is designated as a nuisance under the provisions of this Code, such nuisance is a misdemeanor and abated by the GeURV' in addition to the imposition of a fine or imprisonment as authorized by Sec. 1-7., as further authorized by NCGS 14-4, may be abated by the County pursuant to the procedures set out in NCGS 153A-123(e). Sec.4-51.-Penalties. (a)The violation of any provision of this Ordinance shall maybe a misdemeanor and any person convicted of such violation shall be punishable as provided in North Carolina General Statutes section 14-4, or other applicable law. Each day's violation of this Ordinance is a separate offense. Payment of a fine imposed in criminal proceedings pursuant to this subsection does not relieve a person of his or her liability for taxes, fees or civil penalties imposed under this Ordinance. Sec.8-42.-Remedies. (a)Any person violating any of the provisions of this Article shall be subject to a civil penalty of$100.00. Each day of a continuing violation shall constitute a separate violation under this subsection.The county manager, or his or her designee, shall be authorized to assess civil penalties under this Article and shall make written demand for payment upon the person responsible for the violation and shall set forth in detail the violation for which the penalty has been invoked. If payment is not received or equitable settlement reached within 60 days after demand for payment is made, the matter shall be referred to the county attorney for institution of a civil action in the name of the county in the appropriate division of the General Court of Justice of Orange County for recovery of the penalty. Any sums recovered shall be used to carry out the purposes and requirements of this Article. Any such civil penalties may be 6 recovered in the nature of debt. „ r_ c § 1n n Sec.8-81.--Repealed. mpesed hereffiR er whe willfully refuses te pay the tax and file a retuFR shall, iR addit*9R te the peRalties Sec.8-100.- Remedies. (a)Any person violating any of the provisions of this Article shall be subject to a civil penalty of$100.00. Each day of a continuing violation shall constitute a separate violation under this subsection.The county manager, or his or her designee, shall be authorized to assess civil penalties under this Article and shall make written demand for payment upon the person responsible for the violation and shall set forth in detail the violation for which the penalty has been invoked. If payment is not received or equitable settlement reached within 60 days after demand for payment is made, the matter shall be referred to the county attorney for institution of a civil action in the name of the county in the appropriate division of the General Court of Justice of Orange County for recovery of the penalty. Any sums recovered shall be used to carry out the purposes and requirements of this Article. Any such civil penalties may be recovered in the nature of debt.` iel.ati^„ ^{this -article ;sd„m„-a„^F punishable as prescribed rS.si 4 T Sec. 8-122.- Remedies. (a)Any person violating any of the provisions of this Article shall be subject to a civil penalty of$100.00. Each day of a continuing violation shall constitute a separate violation under this subsection.The county manager, or his or her designee, shall be authorized to assess civil penalties under this Article and shall make written demand for payment upon the person responsible for the violation and shall set forth in detail the violation for which the penalty has been invoked. If payment is not received or equitable settlement reached within 60 days after demand for payment is made, the matter shall be referred to the county attorney for institution of a civil action in the name of the county in the appropriate division of the General Court of Justice of Orange County for recovery of the penalty. Any sums recovered shall be used to carry out the purposes and requirements of this Article. Any such civil penalties may be recovered in the nature of debt. 7 Sections for first reading involving no substantive change in language. Re- adoption of these Ordinance sections is recommended out of an abundance of caution due to the statutory change in the requirements for adoption of ordinances with misdemeanor penalties. Sec.4-42.-Control of dangerous animals; security dogs. (h)(4)Any violation of this section may be a misdemeanor and subject to a fine of$500.00 or imprisonment of not more than 30 days. Sec.4-133.- Enforcement. (b)(1) Criminal Offenses—A violation of any provision of this Division constitutes a Class 3 Misdemeanor and shall be punishable as provided in North Carolina General Statutes§ 14-4. Each day's continuing violation shall constitute a separate offense. Sec.4-184.- Enforcement. (b)(1) Criminal Offenses—A violation of any provision of this Division constitutes a misdemeanor and shall be punishable as provided in North Carolina General Statutes§ 14-4. Each day's continuing violation shall constitute a separate offense. Sec. 14-42.- Penalty for violation of article. Except as provided in section 14-36, any person violating any prohibition or restriction imposed by a proclamation authorized by this article shall be guilty of a misdemeanor, punishable upon conviction in accordance with section 1-7, as provided by G.S. 14-4. Sec. 14-83.-Violations. It shall be a misdemeanor for any person to violate any of the provisions of this Ordinance or plans issued pursuant to the authority contained herein, or willfully obstruct, hinder or delay any member of the emergency management organization as herein defined in the enforcement of the provisions of this Ordinance or any plan issued thereunder. 8 Sec. 14-129.—Enforcement (a)(5) Recommend to the Board of Commissioners the temporary or permanent suspension of a franchise in the event of noncompliance with the franchise terms of this Ordinance. Recommend the imposition of misdemeanor or civil penalties as provided therein. Sec. 14-261.-Criminal penalties. Any person who violates the provisions of this article or fails to comply with any of its requirements shall, upon conviction, be guilty of a misdemeanor and shall be punished as provided in G.S. 14-4. Sec. 16-37.- Enforcement and penalties. (b)The person in charge of a building or vehicle identified in Section 16-33 or his or her designee who sees an individual using a tobacco product(other than an employee) who is in violation of this Ordinance must ask the individual to stop using the tobacco product. If, after having been asked to stop using the tobacco product, the individual continues to use the tobacco product, he or she shall be in violation of this Ordinance.Violators of this Ordinance shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not to exceed $500.00 in accordance with N.C. General Statute § 14-4(a). Sec. 16-57. -Violations and penalties. (c) Criminal penalties.Any person who violates any provision of this Article shall be deemed guilty of a class 3 misdemeanor punishable by imprisonment not to exceed 15 days or by fine not to exceed $500.00, or both. Each day of a continuing violation shall constitute a separate violation under this subsection. Sec. 18-119.—Infraction. Any person who violates the provisions of this article shall be responsible for an infraction, as provided in G.S. 14-4, and shall be required to pay a penalty of$50.00. Sec. 24-1.-Regulating hunting and fishing in Orange County. (j)Any person convicted of a violation of this Ordinance is guilty of a Class 3 Misdemeanor and upon conviction shall be fined not more than $500.00. 9 Sec. 24-3. - Regulating the discharge of firearms. (h)A violator of this Section shall be guilty of a Class III misdemeanor punishable by a fine of up to $500.00.A violation of this Section may subject the violator to a civil penalty of up to $500.00. All assessed penalties may be recovered in any manner authorized by law and, if not paid within 30 days, may be recovered in the nature of debt. Sec. 24-4. - Regulating the display of pyrotechnics. (e)Any person violating any provision of this Section shall be guilty of a misdemeanor and subject to a fine of not more than $500.00 and/or imprisonment for not more than 30 days. Violators may be subject to a civil penalty of$500.00 per violation to be recovered in the nature of debt if not paid within 30 days. Sec. 34-1.-Restricting the disposal of solid waste at the county landfill. (c)(1) Criminal penalty. Any person violating this Ordinance shall be guilty of a misdemeanor punishable by a fine of not to exceed $500.00 or imprisonment for not more than 30days, or both. Each violation and each day's violation shall be treated as a separate offense. Sec. 34-47. Enforcement (a) Criminal penalty. Any person violating this article shall be guilty of a misdemeanor punishable in accordance with section 1-7. Each day's continuing violation shall be a separate and distinct offense. Sec. 34-77.- Enforcement. (3) Criminal penalty. Any person violating this article shall be guilty of a misdemeanor punishable by a fine not to exceed $500.00 or imprisonment for not more than 30 days, or both. Each day's continuing violation is a separate and distinct offense. Each violation is a separate and distinct offense. Sec. 36-34.—Penalties. Any violation of the provisions of this Article shall constitute a misdemeanor, punishable upon conviction in accordance with section 1-7, as provided by G.S. § 14-4.Any such violation may be enjoined, restrained or abated as provided by G.S. §§ 153A-123(d) and 153A-123(e). Sec. 36-67. - Penalties and remedies. (a)Any violation of any of the provisions of this Division shall constitute a misdemeanor, punishable as provided in G.S. § 14-4.