Senate Bill 300 was an omnibus criminal justice reform bill passed last year. One of its provisions presumptively decriminalizes most violations of local ordinances. In this post, I’ll address some of the questions that have arisen about that provision.
Before SB300. Before SB300, the general rule was that “if any person shall violate an ordinance of a county, city, town, or metropolitan sewerage district . . . he shall be guilty of a Class 3 misdemeanor.” G.S. 14-4(a). There was an exception for violations of ordinances “regulating the operation or parking of vehicles,” which were typically infractions. G.S. 14-4(b). Some ordinances provided for civil or administrative penalties instead, but most had criminal consequences. SOG faculty member Jessie Smith wrote here about the frequency with which ordinance violations resulted in criminal charges, concluding that in 2018, there were more than 10,000 charges of this kind in North Carolina.
The criminalization of ordinance violations in North Carolina dates back at least a century. In Board of Educ. of Vance County v. Town of Henderson, 126 N.C. 689 (1900), the court explained why ordinances came to carry criminal penalties. It noted that originally, a municipality could “fix penalties for the violation of its ordinances, and . . . enforce these penalties by civil action” but could not “create criminal offenses.” But “it was found to be almost impossible to administer and enforce a proper police government in towns and cities by means of [civil] penalties alone,” and it “therefore became necessary to make the violation of town ordinances a misdemeanor.” Many other states also have allowed local governments the authority to create ordinances with criminal penalties. See Wayne A. Logan, The Shadow Criminal Law of Municipal Governance, 62 Ohio St. L. J. 1409 (2001) (arguing that nationwide, municipalities “enjoy considerable authority to enact criminal laws,” and have since colonial times).
What SB300 did. Part XIII of SB300 is entitled “decriminalization of certain ordinances.” It amends three statutes:
- G.S. 153A-123 (“enforcement of ordinances,” for counties)
- G.S. 160A-175 (“enforcement of ordinances,” for cities)
- G.S. 14-4 (“violation of local ordinances misdemeanor”)
The bill has three main effects.
First, for certain kinds of ordinances, listed in the bill, criminal or infraction penalties are now prohibited. The list of never-criminal ordinances is slightly different for counties than it is for cities, but neither type of local government may impose criminal or infraction penalties for ordinances:
- That regulate planning and development, “except for those ordinances related to unsafe buildings”
- That concern the regulation or licensure of businesses or trades
- That concern stream-clearing programs
- That regulate outdoor advertising
- That limit or regulate solar collectors, cisterns, or rain barrels
- That regulate trees
Second, for ordinances where criminal penalties remain possible, there are new procedural requirements. Both counties and cities now may attach misdemeanor or infraction penalties to ordinances “only if the [local government] specifies such in the ordinance.” Further, “no ordinance specifying a criminal penalty may be enacted at the meeting in which it is first introduced.”
Third, SB300 adds a new subsection to G.S. 14-4, which provides:
(c) A person may not be found responsible or guilty of a local ordinance violation punishable pursuant to subsection (a) of this section [which makes ordinance violations a misdemeanor] if, when tried for that violation, the person produces proof of compliance with the local ordinance through any of the following:
(1) No new alleged violations of the local ordinance within 30 days from the date of the initial alleged violation.
(2) The person provides 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.
All of these changes took effect on December 1, 2021.
The big picture. The big picture is pretty clear: previously, ordinance violations were presumptively criminal. Now some ordinance violations can never be criminal, while others are presumptively not criminal but may still be criminalized if a county or city specifies that in the ordinance. Even when a county or city chooses to allow criminal enforcement, though, the broad new defenses in G.S. 14-4(c) will make criminal prosecutions of alleged violators much more difficult. It is reasonable to infer that the General Assembly wanted to rein in what it saw as the overuse of criminal penalties to enforce local ordinances.
The devil is in the details. A number of questions have arisen regarding this part of SB300. I’ll list the ones I’ve heard below, together with any thoughts I have about them.
- SB300 says that criminal penalties are available only if the local government “specifies such in the ordinance.” What counts as “the ordinance”? Must the reference to a criminal penalty be in the same section that defines the violation?
I’ll illustrate this question with a Chapel Hill example. Section 11-23 of the Chapel Hill Code of Ordinances provides that “[n]o person shall place, leave, or allow to remain on his lot, the carcass of any dead animal, or fowl.” After some other sections about unsanitary yard care practices, section 11-27, captioned “penalties,” provides that a “violation of sections 11-22, 11-23, 11-24 and 11-26 shall constitute a misdemeanor and shall subject the violator to a fine of five hundred dollars . . . or imprisonment for not more than thirty . . . days.” Does this work? Or does the criminal penalty need to be in section 11-23 in order to comply with SB300?
Clearly, having the penalty in section 11-23 is the safest approach. But I can imagine an argument that what Chapel Hill has is acceptable. A court could reason that the apparent purpose of the requirement that the criminal penalty be specified in “the ordinance” is to make it easier for people to understand the consequences of violating an ordinance. In the Chapel Hill example, the penalty provision is in a nearby code provision – in the same Article and just a few sections away. Anyone looking at section 11-23 is likely to notice section 11-27, and to understand the consequences of violating section 11-23. So a court might conclude that the two sections are functionally parts of a single “ordinance.”
That argument was made a little more difficult by the recent case of State v. Hales, __ N.C. App. __, 2022 WL 598760 (2022). There, the court of appeals considered whether a trial judge erred in imposing a $100 fine for a municipal ordinance violation. The court noted that G.S. 14-4 limits fines to $50 “unless the ordinance expressly states” that a greater fine may be imposed, up to a maximum of $500. The defendant in that case violated section 22-16(a) of the Fayetteville Code of Ordinances, which concerns having dangerous metal items in one’s yard. The appeals court found that $50 was the maximum possible fine because section 22-16 didn’t provide for a fine greater than $50: “[B]ecause Section 22-16 does not expressly state that the maximum fine for a violation of Section 22-16(a) is greater than $50.00, the maximum fine for Defendant’s violation of N.C. Gen. Stat. § 14-4 is $50.00.” The court seemed to focus on whether a greater fine was designated in the specific section of the code that contained the violation. That’s not what Chapel Hill has, but Chapel Hill might argue that the case is distinguishable. Fayetteville apparently didn’t list the maximum fine in a nearby section of the code of ordinances. Instead, “one must look outside the Code to the city council’s approved fee and penalty schedule to determine the maximum fine for a violation.” So the issue of whether a nearby section counts as part of the same “ordinance” wasn’t really before the court in Hales.
Although I can see arguments on both sides regarding the Chapel Hill yard care ordinance, I doubt that a “catchall” penalty provision at the beginning or the end of all of a city’s ordinances would satisfy the new law. Generally, the more sections to which a single penalty provision applies, and the farther the penalty provision is from the sections to which it applies, the less likely it may be to pass muster.
- SB300 says that an ordinance imposing a criminal penalty may not be enacted “at the meeting in which it is first introduced.” What counts as “introduc[ing]” an ordinance?
One possible answer to this question comes from G.S. 160A-75, the statute addressing voting by city councils. It says that an ordinance can’t be “finally adopted on the date on which it is introduced” unless at least two-third of all members vote for it. (I imagine that the purpose of that rule is to prevent a minority of council members from taking advantage of a meeting at which they are temporarily in the majority due to the absence of several other members by rushing through all sorts of things that a majority of the council would oppose if present.) The statute further states: “For purposes of this section, an ordinance shall be deemed to have been introduced on the date the subject matter is first voted on by the council.”
At least for purposes of G.S. 160A-75, then, the “introduction” of an ordinance requires some sort of vote. If that same rule applies for purposes of SB300, a local governing board seeking to enact an ordinance with criminal penalties would need to have some sort of vote at one meeting – perhaps an initial vote to adopt the ordinance subject to confirmation at the next meeting, or perhaps a vote on something like a resolution of intent to adopt the ordinance – before voting on it again at a second meeting.
Note that G.S. 160A-75 applies only to cities. The most comparable statute for counties is G.S. 153A-45, but that statute doesn’t contain any language about what constitutes the introduction of an ordinance. Still, I don’t have any better ideas about how to define what counts as introducing an ordinance, so even for counties I would think that two votes would be a good practice.
- What if an ordinance falls partly in, and partly outside of, an area for which criminal enforcement is never permitted?
SOG faculty member Adam Lovelady wrote about this here. His expertise is in land use law, and he notes that generally, SB300 prohibits local governments from attaching criminal penalties to most planning/land use/development ordinances adopted under Chapter 160D of the General Statutes (“Local Planning and Development Regulation”).
But what about erosion and sedimentation control regulations? They’re authorized under G.S. 160D-922, so perhaps criminal penalties are a no-go. But that section cross-references Article 4 of Chapter 113A of the General Statutes (“Pollution Control and Environment”). And G.S. 113A-64 specifically imposes criminal penalties for violations of ordinances adopter thereunder: violations are a Class 2 misdemeanor with a possible fine of up to $5,000. In that particular scenario, Adam doubts – and I also doubt – that SB300 takes criminal penalties off the table. But there are lots of other scenarios where a local ordinance may be adopted pursuant to multiple authorities, some falling into the never-criminal categories and others not, where the answer may be harder to discern.
More generally, it may be hard to tell whether a particular ordinance was adopted “pursuant to” one of the authorities for which SB300 takes criminal enforcement off the table. Take, for example, Chapel Hill Code of Ordinances, Section 10-53, which provides that owners of drive-in restaurants shall “[a]t least once in 24 hours dispose of waste materials which tend to create a public nuisance.” Would criminal penalties for violations of that ordinance run afoul of SB300’s bar on criminal penalties for ordinances “adopted pursuant to G.S. 160A-194, Regulating and licensing businesses, trades, etc.”? The text of the ordinance itself doesn’t say whether it was adopted pursuant to G.S. 160A-194. Perhaps it was adopted under the Town’s police power, or under a different statute. In some instances, there may be historical records regarding the adoption of the ordinance that shed some light on the intended basis for the ordinance. On a going-forward basis, local governments that wish to enact new ordinances with criminal penalties may find it helpful to specify the statute in which the ordinance is grounded.
- Are local governments systematically reviewing their ordinances and adding criminal enforcement provisions where allowed under current law?
After speaking with a number of local government attorneys, I think it is fair to say that some are starting to take a closer look at their ordinances and how they shake out under SB300. But most are early in the process. If there are any local governments that have completed a comprehensive review and revision of their ordinances in light of SB300, I’m not aware of it.
- What’s the alternative to criminal enforcement?
Likely a system of civil penalties, which local governments may need to create. The North Carolina League of Municipalities advises that “[f]or ordinances that will not be enforced criminally, [cities should] establish administrative capabilities to issue and collect civil citations or fines for violations and provide for an appeals process.” North Carolina League of Municipalities, Preparing to Implement Criminal Justice Reform Legislation in Towns and Cities 2 (2021).
Such civil penalties are already in use for some ordinance violations. Sticking with Chapel Hill as a source of examples, section 4-8(3) of the Chapel Hill Code of Ordinances prohibits the use of “any electric training device which administers a shock to the animal.” (We are very humane here in Chapel Hill.) The next section, section 4-9, provides for a $25 civil penalty for violations. Of course, civil penalties may be more effective in some situations and less so in others. Recall that the reason that ordinance violations were made criminal in the first place was a sense that civil penalties were sometimes ineffectual. Readers interested in better understanding civil penalties and how they may be enforced may wish to consult this blog post by SOG faculty member Trey Allen.
A shift towards the use of civil penalties may impact where collected funds go. Fines imposed in criminal cases are ultimately owed to the public schools under Article 9, Section 7 of the North Carolina Constitution, which requires that “the clear proceeds of all penalties and forfeitures and of all fines collected . . . for any breach of the penal laws of the State . . . shall be faithfully appropriated and used exclusively for maintaining free public schools.” But civil penalties for ordinance violations do not involve the “penal laws,” so the funds may remain with the city or county that collects them. See Cauble v. City of Asheville, 301 N.C. 340 (1980) (stating the “general rule that penalties collected for violations of city ordinances are civil in nature,” and contrasting that with penalties collected for violations made criminal under G.S. 14-4, which must be paid to the schools). There are quite a few nuances to this area of the law, though, so before local governments start counting their pennies, they may wish to review this blog post by SOG faculty member Kara Millonzi.
- Are the new “proof of compliance” provisions in G.S. 14-4(c) affirmative defenses? Are prosecutors even going to bother with ordinance prosecutions anymore?
I do think they’re affirmative defenses, because the statute indicates that they apply when “the person produces” the requisite evidence. The burden of production is clearly on the defendant.
But questions may arise about what satisfies a defendant’s burden. For example, does “no new alleged violations” mean no new violations that are the subject of criminal charges? Think of a person like the defendant in Hales, charged with having dangerous metal items in his yard. If the defendant is charged on day 1, is the affirmative defense defeated if an inspector notes that the violation continued on days 10 and 23? Or must additional criminal charges be brought to preserve the viability of the first one? The rule of lenity suggests the latter.
Likewise, I will be interested to see how courts interpret “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.” How robust of an effort is required to show good faith? What does “might relate” mean? Perhaps we will get an appellate opinion on this issue some day, but in the meantime, the finder of fact – for these cases, mostly district court judges – will have a great deal of leeway in interpreting these terms.
As to whether prosecutors will be deterred from prosecuting ordinance crimes, I asked a few and the general sentiment was that ordinance crimes weren’t exactly a top priority even before SB300. Certainly the new affirmative defenses will make securing convictions more difficult. I will be interested to see whether there is an unintended consequence here – many fact patterns that give rise to local ordinance violations could also potentially be charged as state law crimes, often ones more serious than a Class 3 misdemeanor. Will officers or prosecutors shift to relying on those state law crimes rather than ordinance violations?