Opposition Brief — Tseng Fu Lin v. City of Goldsboro

In The

Supreme Court of the United States

October Term, 1995

S

TSENG FU LIN, d/b/a ORIENTAL JADE RESTAURANT,

Petitioner,

CITY OF GOLDSBORO, FLOYD MCcKEEL, and

CHARLES R. SOUTHERLAND,

Respondents.

S

On Petition For A Writ Of Certiorari

To The North Carolina Court Of Appeals

.

RESPONDENTS’ BRIEF IN OPPOSITION

.

W. Harrevt Everett, Jr., Esquire

Counsel of Record

Everett, Womete & Finan, L.L.P.

507 B Spence Avenue

P.O. Drawer 10809

Goldsboro, NC 27532-0809

(919) 778-6707

Attorney for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the North Carolina Court of Appeals erred

in affirming the North Carolina Superior Court's grant of

summary judgment for Respondents?

il

TABLE OF CONTENTS

Page

Question Presented for Review ................005: i

Table Gf COMRGOUE: 0 icin ces tere cetienkreaeen ii

FaOee OF AWENOUIUGD 055055 cee ka vances sbay cues iii

Statement of Ue COG. vo. isicic ce ctenawcwanee eeeress 1

AMUN ow cee eiantenebescesnss et PEpee th eleneees 4

COMIUMON. oc occccusvesucksekedbes Sau Chance ey eeen 11

Appendix

North Carolina Superior Court Order of February

1, 1995 Granting Summary Judgment ......... App. 1

Answer and Counterclaim ...............eteeee. App. 2

Affidavit of Joust PN. PRBIOB «pris s bass ervcscsenn App. 16

Response to Petition for Discretionary Review by

North Carolina Supreme Court .............. App. 19

Goldsboro City Ordinance §25-35 .............. App. 22

Goldsboro City Ordinance §25-37 .............. App. 23

N.C.G.S. §143-139... cry cccecerccecccscecevaces App. 25

N.C.GS. Q1GRACIIS 6c iva ies suneciena tener App. 28

NCGS. GEOGRASES os iics cakny aves ntcentsnenes App. 30

N.C.GS. GIGGADES ois scceivesesvesnsasueeees App. 31

N.C.G.S. GIOGAEET 05 0k ces cannes euvens (bees App. 32

North Carolina Plumbing Code, Volume 2, Chap-

ber S, GE GULL, GiaMcss dss cckssnwushaviatvies App. 34

ili

TABLE OF AUTHORITIES

Page

CASEs:

Birnbaum v. Trussell, 347 F.2d 86 (2nd Cir. 1965)....5, 7

Board of Regents v. Roth, 565 U.S. 564 (1972).......... 7

City of Ladue, et al. v. Gilleo, 512 U.S. 129 (1994)......7

Dohany v. Rogers, 281 U.S. 362 (1930)................ 10

Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) ........ 10

Gaffney v. Silk, 488 F.2d 1248 (1st Cir. 1973)........ ee

Harlowe v. Fitzgerald, 457 U.S. 800 (1982)........... 5.7

Mathews v. Eldridge, 424 U.S. 319 (1976).............. 9

McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d

Cis bred feet és rreppestuveversuiesuceuss 8, 9

Memphis Light, Gas and Water Div. v. Craft, 436 U.S.

DL RUh it aeWinebbabeeued cab eds cesses cedeene% 7,9

Nelson v. Knox, 256 F.2d 312 (6th Cir. 1958) ........ 5, 7

Oyama v. California, 332 U.S. 633 (1948) ............. 10

Turpin v. Lemon, 187 U.S. 51 (1902).............5005. 10

Youngstown Sheetmetal & Tubing v. Sawyer, 343 U.S.

TTS Cede Uy bibl bbs pipe vbdsvevd ce stbsdoecnsi 7

STATUTES:

Goldsboro City Ordinance §25-35 ............... ee

Goldsboro City Ordinance §25-37 .............00-000 5

North Carolina General Statutes §143-139 ............ 6

North Carolina General Statutes §153A-283........... 8

TABLE OF AUTHORITIES - Continued

Page

North Carolina General Statutes §160A-174........... 6

North Carolina General Statutes §160A-312........... 8

North Carolina State Plumbing Code, Volume 2,

CRUE Dh, ee eh cevcctevetsinitsveructvessutes' 5

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents respectfully request that the Court deny

the petition for a writ of certiorari seeking review of the

decision of the North Carolina Court of Appeals in this

case. (Discretionary review denied by the North Carolina

Supreme Court.)

STATEMENT OF THE CASE!

The Petitioner is the owner of a restaurant at 2102

North 117 Bypass, Goldsboro, North Carolina, entitled

the Oriental Jade Restaurant. On September 20, 1991 and

March 24, 1993, the City maintenance crews cleaned out a

large section of sanitary sewer pipe where Petitioner’s

building connected to the City’s sanitary sewer main.

Said sanitary sewer main was clogged with grease and

had contaminated the plumbing of citizens connected to

the sewer further down-line. (Appendix p. 5). John Hales,

Plumbing/Mechanical Inspector for the City of Gold-

sboro, determined that, because the Petitioner’s restau-

rant was the first customer Connected to the sanitary

sewer main, the Petitioner’s restaurant was the source of

the grease blockage. (Appendix p. 5). By letter dated

March 31, 1993, Mr. Hales notified the Petitioner that,

because of the grease problem they had previously dis-

cussed, the Petitioner was required by Goldsboro City

Ordinance §25-35 to install a grease trap of sufficient size

and strength to protect the City’s sanitary sewer main.

' Pursuant to Rule 24.2, Respondents tender this Statement

of the Case to correct factual misstatements by Petitioner.

(Petitioner's Appendix p. 82). Mr. Hales verbally advised

the Petitioner on numerous occasions between March 31,

1993, and December 15, 1993, that a grease interceptor, as

required by the North Carolina State Plumbing Code,

would have to be installed in the restaurant. (Appendix

pp. 5-6).

Sometime after March 31, 1993, there was a fire at the

Oriental Jade Restaurant. The restaurant closed for

repairs to the building. Although the Petitioner was

denied a water permit because he had failed to install the

grease interceptor, he was granted a temporary water

permit for the purpose of repairing the building. (Appen-

dix p. 6).

By certified letter of December 3, 1993, Chief Build-

ing Inspector, Floyd McKeel, again notified the Petitioner

that water service to the Petitioner’s building would not

be authorized on a permanent basis until such time as a

grease interceptor was installed, pursuant to the North

Carolina State Building Code and City Ordinance. (Peti-

tioner’s Appendix p. 85). Thereafter, Petitioner requested

a variance from this requirement from the City of Golds-

boro, which request was denied. (Petitioner’s Appendix

p. 18). The Petitioner failed to comply with the directives

and notifications from the Respondents over an extended

period of nine months and, as a result, the Petitioner was

notified by certified letter dated December 15, 1993 that

his permit to connect with City water was revoked effec-

tive December 16, 1993, pursuant to Goldsboro City Ordi-

nance §25-35. (Petitioner’s Appendix p. 90).

The Petitioner subsequently installed the grease

interceptor, was granted a water permit, reopened his

business and was granted sewer service. (Appendix p.

16).

Petitioner filed a complaint on April 20, 1994 alleging

that Respondents ordered the closing of Petitioner’s busi-

ness and shut off the utilities at his restaurant without

providing Petitioner with notice or an opportunity to be

heard. (Petitioner’s Appendix p. 76). The Superior Court

denied Petitioner’s motion for a preliminary injunction

directing the Respondents to provide utility service. (Peti-

tioner’s Appendix p. 34). After hearing the arguments of

both parties, the North Carolina Superior Court, Honor-

able Russell Lanier presiding, granted Respondents’

Motion for Summary Judgment on the ground that

Respondents were protected from suit by governmental

immunity. (Petitioner's Appendix p. 1, Respondents’

Appendix p. 1).

On December 19, 1995, the North Carolina Court of

Appeals affirmed the Superior Court’s decision on the

following grounds: 1) Respondents’ actions were autho-

rized by North Carolina statutory law, thereby permitting

the application of governmental immunity by the Supe-

rior Court; 2) based on North Carolina case law, Peti-

tioner had no property interest in the water service and,

therefore, could not claim a violation of his due process

rights; and 3) assuming arguendo that Petitioner did have

a property interest in the water service, there was no

infringement on his right to due process. (Petitioner's

Appendix p. 61). The North Carolina Supreme Court

denied Petitioner’s request for discretionary review on

February 8, 1996. (Petitioner’s Appendix p. 59). Petitioner

now asks this Court to review this decision.

In his Statement of Fact, Petitioner makes two allega-

tions that have not been raised prior to this petition.

Petitioner alleges that, after investigation, federal author-

ities declined to take any action against him because

North Carolina authorities had already determined that

Petitioner had “complied with the law by having a Grade

A Report” (citing Petitioner's Appendix p. 15). Respon-

dents have no knowledge of any investigation or allega-

tions pursuant to the ‘Clean Water Protection Law’ and

suggest that the report provided by Petitioner does not

address compliance with the North Carolina Plumbing

Code. Furthermore, contrary to Petitioner’s statements,

the letter of December 9, 1993 from North Carolina Gov-

ernor James B. Hunt, Jr. (Petitioner's Appendix p. 16),

does not indicate that the State decided not to prosecute

Petitioner's violation of the North Carolina Plumbing

Code. Rather, the letter requests further information from

Petitioner in order that the Department of Insurance may

render a decision. These allegations have not been previ-

ously addressed by the state courts nor has Petitioner

introduced any evidence to support either allegation at

neither the state trial court nor state appellate court.

7

ARGUMENT

THE NORTH CAROLINA COURT OF APPEALS HAS

NOT DECIDED A FEDERAL QUESTION IN A WAY

THAT CONFLICTS WITH DECISIONS OF ANOTHER

STATE COURT OF LAST RESORT OR THE UNITED

STATES COURT OF APPEALS OR THE UNITED

STATES SUPREME COURT

The Petitioner has failed to provide this Court with

any decisions of another state court of last resort, the

United States Court of Appeals, or the United States

Supreme Court which decide a federal question in a way

contrary to the decision of the North Carolina Court of

Appeals in this case.

Petitioner contends that the decision of the North

Carolina Court of Appeals in this case is contrary to the

decisions of the Courts of Appeal in Nelson v. Knox, 256

F.2d 312 (6th Cir., 1958); Gaffney v. Silk, 488 F.2d 1248 (1st

Cir. 1973); and Birnbaum v. Trussell, 347 F.2d 86 (2nd Cir.

1965); as well as this Court’s decision in Harlowe v.

Fitzgerald, 457 U.S. 800 (1982). In fact, the decision of the

North Carolina Court of Appeals is consistant with and in

accordance with these decisions.

Nelson, Gaffney, Birnbaum, and Harlowe each stand for

the proposition that municipal officers do not have com-

plete immunity but, rather, have only a qualified privi-

lege that acts as a defense against liability for harm

caused by acts done by them in good faith in performance

of their official duties as they understood it. Clearly, if a

municipal officer violates a person’s constitutional or fed-

eral rights, the doctrine of immunity is abrogated.

Birnbaum, supra.

The North Carolina Court of Appeals, in affirming

the Superior Court’s decision, found that the acts of

Respondents were legislatively authorized. (Petitioner's

Appendix p. 68). Goldsboro City Ordinance §25-37 pro-

vides that “all water and sewer service lines shall be as

specified in North Carolina Plumbing Code, Volume 2,

and as approved by the Plumbing Inspector.” The North

Carolina State Plumbing Code, Volume 2, Chapter 8,

§801.4 provides, in relevant part, that:

A grease interceptor shall be installed at the

waste line leading from sinks, drains or other

fixtures in the following establishments when,

in the opinion of the Plumbing Official, a hazard

exists: restaurants, hotel, kitchens or bars. . . or

other uses where grease can be introduced into

the drainage systems in quantities that can

affect line stoppage or hinder sewage disposal.

Furthermore, pursuant to North Carolina General Stat-

utes §§160A-174 and 143-139, respectively, the City of

Goldsboro has the right to prohibit or abate conditions

detrimental to the health, safety or welfare of the City

and to enforce the North Carolina Building Code.

The North Carolina Court of Appeals found that this

legislation supported the actions of Respondents. It

authorized Respondent’s plumbing official to require the

installation of a grease interceptor by Petitioner and,

when necessary, abate the condition that was detrimental

to the health and welfare of the citizens of Goldsboro. On

March 31, 1993, after determining that Petitioner’s restau-

rant was the source of the grease that had repeatedly

clogged the City’s sanitary sewer main, the Plumbing

Inspector notified Petitioner and directed him to install

the grease interceptor, as was required by the North

Carolina Plumbing Code, supra. After repeated notifica-

tions over a period of nine months, and Petitioner’s con-

tinuing refusal to install the grease interceptor,

Respondents acted to protect the health and welfare of

the citizens of Goldsboro and prohibit this detrimental

situation by revoking Petitioner’s temporary water per-

mit. Shortly thereafter, Petitioner installed the grease

interceptor and was granted a water permit, as provided

by the relevant legislation.

Nelson, Gaffney, Birnbaum, and Harlowe each set forth

the doctrine of qualified, good faith immunity. The North

Carolina Court of Appeals found that Respondents’

actions were not only in good faith but also legislatively

authorized. Accordingly, the decision cf the North Caro-

lina Court of Appeals is not in contradiction with, but is,

in fact, in accordance with the cases cited by Petitioner.

Therefore, the Court should not grant certiorari on this

basis.?

Petitioner also alleges that the North Carolina Court

of Appeals erred in rejecting Petitioner’s claim that

Respondents’ actions violated his constitutional right to

due process. For Petitioner to prevail on the basis of lack

of due process, Petitioner must first establish a property

interest or an entitlement to the water services. Protected

interests are normally not created by the Constitution;

rather, they are created and defined by an independent

source such as state statutes or rules entitling a citizen to

certain benefits. Board of Regents v. Roth, 565 U.S. 564, 577

(1972); Memphis Light, Gas and Water Div. v. Craft, 436 U.S.

1 (1978). Under Roth and Memphis Light, the court will

? Petitioner also contends that the decision of the North

Carolina Court of Appeals in this case is contrary to this Court’s

decisions in City of Ladue, et al. v. Gilleo, 512 U.S. 129 (1994)

(holding that a city ordinance banning all residential signs, but

those falling within limited exceptions, violated resident’s free

speech rights), and Youngstown Sheetmetal & Tubing v. Sawyer,

343 U.S. 579 (1952) (holding that the President was without the

authority to order the seizure of the plants of steel companies

involved in a labor dispute). However, Respondents are unable

to ascertain how these cases are relevant, let alone contrary, to

the case at hand. In fact, Petitioner fails to cite any rulings

contrary to the decision of the North Carolina Court of Appeals.

look to North Carolina law to determine whether a citi-

zen has a substantive interest in water services. In the

instant case, the North Carolina Court of Appeals found

that McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d

475 (1990), was controlling and necessitated the conclu-

sion that Petitioner had no property interest in the water

service provided by Respondents and, therefore, could

not claim a violation of his due process rights.

In McNeill, the appellants contended that the termi-

nation of water services without notice or opportunity for

a hearing violated their right to due process. The North

Carolina Supreme Court held that the water service fur-

nished by the County did not rise to the level of “prop-

erty” protected by due process requirements. Id., 327 N.C.

at 571. The Honorable Justice Meyer found that, while

other statutes specifically authorize disconnections in cer-

tain situations, the language of N.C.G.S. §153A-283 states

specifically that “[i]n no case may a county be held liable

for damages for failure to furnish water or sewer ser-

vices.”

The Court concluded that, in light of this statutory

language, “a citizen of a county in North Carolina may

not assert a claim of entitlement to water services.” Id.

Based upon the McNeill decision, the North Carolina

Court of Appeals concluded that Petitioner had no prop-

erty interest in Respondents’ water services.

3 Similarly, Goldsboro City Ordinance §25-35, as

authorized by N.C.G.S. §160A-312(b), provides, in pertinent

part, “[nJo party interested shall have a claim for damage in

consequence of [a permit to connect with the city water and

sewer systems] being revoked or annulled.”

The North Carolina Court of Appeals further stated

that, even if Petitioner had a property interest in the

water services, it could not discern any infringement on

Petitioner’s right to due process. The Court discussed the

requirement set forth in Memphis Light that there be suffi-

cient notice to afford reasonable assurance against “erro-

neous or arbitrary withholding of essential services.” Id.,

436 U.S. at 18 (citing Mathews v. Eldridge, 424 U.S. 319

(1976)). Citing McNeill, supra, the Court found that Peti-

tioner was given numerous written and verbal notifica-

tions and directives of the required grease interceptor

over a period of at least nine months prior to the termina-

tion of water services. Petitioner knew to whom, where,

when and how he could discuss the Plumbing Code

requirement of a grease interceptor and the potential for

termination of the water services from the letters of

March 31, 1993, December 3, 1993, and December 15, 1993

(Petitioner’s Appendix pp. 82, 85, 90, respectively) as

well as his many meetings in person with the inspectors.4

The Court held that this was “adequate protection

from the arbitrary withholding of water services from his

restaurant.” Therefore, the Court held, assuming

arguendo, that Petitioner had a property interest in the

water services, Respondents did not violate his right to

due process in light of the facts in the instant case.

4 Although the North Carolina Court of Appeals did not

note this, Petitioner states in his Statement of Fact that he even

participated in the City’s administrative procedure by filing for

a variance in December 1993, which was denied by

Respondents’ inspector. (Petitioner’s Appendix p. 18).

10

Petitioner contends that this ruling is in contradiction

with this Court’s decision in Oyama v. California, 332 U.S.

633 (1948). However, in Oyama, this Court held that the

California Alien Land Law, as applied to a minor Ameri-

can citizen whose parents were ineligible for naturaliza-

tion, discriminated on the basis of racial descent and

deprived the minor of equal protection of the laws. The

holding of the North Carolina Court of Appeals in this

case is in no way contrary to this Court’s decision in

Oyama.°

Finally, Petitioner states that this Court has held that

when “water is cut off and there is a refusal to turn it

back on while the petitioner’s license is still in force and

no exigencies such as fire or shortage exist, but is used

merely to abate an ordinance violation without the limits

of constitutional guarantees” Article VI of the Constitu-

tion is violated. (Petition for Writ, pp. 18-19, citing Do-

hany v. Rogers, 281 U.S. 362 (1930); Turpin v. Lemon, 187

U.S. 51 (1902); and Dolan v. City of Tigard, 114 S.Ct. 2309

(1994)). However, this is not correct and is a clear mis-

statement of this Court’s rulings in these cases. The cited

cases resolve issues of eminent domain and are not con-

trary to the holding of the North Carolina Court of

Appeals in the instant case.

+

5 Petitioner also contends that the Court's ruling violated

his “entitlement to an American Dream.” (Petition for Writ, p.

23). Petitioner fails to cite any authority for this “entitlement”

and Respondents have been unable to ascertain any state or

federal statutory or case law to support this contention.

i i i i

11

CONCLUSION

The decision of the North Carolina Court of Appeals

does not constitute new law nor does it conflict with

decisions of other state courts of last resort, the United

States Courts of Appeal, or the United States Supreme

Court. Accordingly, Respondents respectfully request

that the Court deny the petition for a writ of certiorari.

This the 19th day of August, 1996.

Respectfully submitted,

W. Harrect Everett, Jr.

Everett, WomsLe &

FINAN, L.L.P.

507 B Spence Avenue

P.O. Drawer 10809

Goldsboro, NC 27532-0809

(919) 778-6707

Attorney for Respondents

APPENDIX

App. 1

FILED: February 1, 1995, 11:01 a.m., Wayne County Clerk

of Superior Court

NORTH CAROLINA IN THE GENERAL COURT

WAYNE COUNTY OF JUSTICE

TSENG FU LIN d/b/a SUPERIOR COURT

ORIENTAL DIVISION

JADE RESTAURANT, FILE NO. 94 CVS 860

Plaintiff,

vs. ORDER

CITY OF GOLDSBORO,

FLOYD M. McKEEL, agent,

and CHARLES

R. SOUTHERLAND, agent,

Defendants.

This Order came on for hearing before the under-

signed Judge upon Defendants’ written Motion for Sum-

mary Judgment, and the Court having considered the

pleadings before the Court and heard oral argument of

the parties, it appears that there are no genuine issues of

material fact and that the Defendants are entitled to Sum-

mary Judgment as a matter of law.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED, that Defendants’ Motion for Summary Judg-

ment by and is hereby GRANTED.

This the 30th day of January, 1995.

/s/ Honorable Russell J. Lanier

Judge Presiding

App. 2

FILED: June 27, 1994, 2:39 p.m., Wayne County Clerk of

Superior Court

NORTH CAROLINA IN THE GENERAL COURT

OF JUSTICE

WAYNE COUNTY SUPERIOR COURT

TSENG FU LIN d/b/a DIVISION

ORIENTAL FILE NO.: 94 CVS 860

JADE RESTAURANT,

Plaintiff,

™ ANSWER AND

CITY OF GOLDSBORO, COUNTERCLAIM

FLOYD M. McKEEL, agent,

and CHARLES

R. SOUTHERLAND, agent,

Defendants.

MOTION TO DISMISS

Now come the Defendants, by and through their

attorney, L. Ashley Smith, and move the Court pursuant

to Rule 12(b)(6) of the North Carolina Rules of Civil

Procedure to dismiss the Complaint of the Plaintiff for

failure to state a claim upon which relief can be granted.

FIRST DEFENSE

GOVERNMENTAL IMMUNITY

Defendant, City of Goldsboro, pleads the doctrine of

governmental immunity in bar of Plaintiff's claims for

damages.

App. 3

SECOND DEFENSE

QUALIFIED IMMUNITY

Plaintiff has brought this action against Defendant

Municipality alleging that the Defendant Municipality

ordered the closing of Plaintiff's business without provid-

ing the Plaintiff with notice or opportunity to be heard.

Plaintiff complains of actions taken by Defendants

McKeel and Southerland while acting in their official

capacity as employees of Defendant Municipality.

In carrying out the complained of actions, the Defen-

dants McKeel and Southerland were acting in good faith

and within the scope of their authority. In so acting, the

Defendants McKeel and Southerland did not breach any

duty to Plaintiff which was clearly established as a matter

of law at the time of the complained of incident. Thus,

Defendants are entitled to qualified, good faith immunity

from this suit.

iA

THIRD DEFENSE

RESPONDING TO SPECIFIC ALLEGATIONS

OF THE COMPLAINT

The Defendants, answering the Complaint of the

Plaintiff, allege and say as follows:

1. That the allegations contained in paragraphs 1, 4,

and 7 of the Complaint are admitted.

2. That as to the allegations contained in para-

graphs 2 and 3 of the Complaint, the Defendants are

without sufficient knowledge or information to form a

belief as to the truth of the allegations in said paragraphs,

and the same are, therefore, denied.

App. 4

3. That as to the allegations contained in paragraph

6 of the Complaint, it is admitted that the Defendant,

Floyd M. McKeel was an agent of the Defendant, City of

Goldsboro, at the time of the events allegedly giving rise

to the Complaint. Except as expressly admitted herein,

the remaining allegations in paragraph 6 of the Com-

plaint are denied.

4. That as to the allegations contained in paragraph

8 of the Complaint, it is admitted that the Defendant,

Floyd M. McKeel, authorized the termination of water

service to 2102 North Highway 117 By-Pass, Goldsboro,

North Carolina, on December 15, 1993. Except as

expressly admitted herein, the remaining allegations in

paragraph 8 of the Complaint are denied.

5. The allegations contained in paragraphs 5, 9 and

10 of the Complaint are cenied.

FOURTH DEFENSE

By way of a further and affirmative defense, the

Defendants allege and says as follows:

6. The right to prohibit or abate conditions detri-

mental to the health, safety or welfare of the Defendant

City has been delegated to Defendant City by G.S.

§ 160A-174.

7. The right to enforce the North Carolina Building

Code has been delegated to Defendant City by GS.

§ 143-139.

8. Goldsboro City Ordinance § 25.37 provides that

“all water and sewer service lines shall be as specified in

App. 5

North Carolina Plumbing Code, Volume 2, and as

approved by the Plumbing Inspector.”

9. The North Carolina State Plumbing Code, Vol-

ume 2, Chapter 8, § 801-4 provides, in part, that:

A grease interceptor shall be installed at the

waste line leading from sinks, drains or other

fixtures in the following establishments when,

in the opinion of the Plumbing Official, a hazard

exists: restaurants, hotel kitchens or bars, fac-

tory cafeterias or restaurants, clubs, or other

uses where grease can be introduced into the

drainage systems in quantities that can affect

line stoppage or hinder sewage disposal.

10. On both September 20, 1991, and March 24,

1993, City maintenance crews cleaned out a large section

of sanitary sewer pipe where Plaintiff’s building con-

nected to the sanitary sewer main. Said sanitary sewer

main was clogged with grease and had contaminated the

plumbing of citizens connected to the sewer further

down-line. As Plaintiff's restaurant was the first customer

connected to the sanitary sewer main, the origin of the

grease can only be attributed to Plaintiff's facility.

11. By letter dated March 31, 1993, John N. Hales,

Plumbing/Mechanical Inspector for the City of Golds-

boro, notified Oriental Jade Restaurant that the City was

requiring Plaintiff to install a grease trap of sufficient size

and strength to protect the City’s sanitary sewer main. A

copy of said letter is attached as hereto Exhibit “A” and

incorporated herein by reference.

12. That John N. Hales, Plumbing/Mechanical

Inspector for the City of Goldsboro, verbally advised the

Plaintiff, Tseng Fu Lin, on numerous occasions between

App. 6

March 31, 1993, and December 15, 1993, that a grease

interceptor would have to be installed in the restaurant as

required by the North Carolina State Plumbing Code.

13. That despite receipt of Defendant’s letter of

March 31, 1993, and the numerous oral warnings, Plaintiff

refused and still refuses to install a grease interceptor in

the restaurant at 2102 North Highway 117 By-Pass,

Goldsboro, North Carolina, in order to bring the building

into compliance with City Ordinances and the North

Carolina State Building Code.

14. That some time after March 31, 1993, Oriental

Jade Restaurant closed in order to make repairs caused by

fire. Temporary water service was authorized to the

premises so that Plaintiff’s contractor could perform the

needed repairs.

15. By certified letter, return receipt requested,

dated December 3, 1993, from Floyd M. McKeel, Chief

Inspector of the City of Goldsboro, Plaintiff was notified

that water service to 2102 North Highway 117 By-Pass,

Goldsboro, North Carolina, would not be authorized on a

permanent basis until such time as a grease intercepter

[sic] was installed pursuant to the North Carolina State

Building Code and City Ordinances. A copy of said letter

and the return receipt signed by Plaintiff are attached

hereto as Exhibit “B” and incorporated herein by refer-

ence.

16. Plaintiff having failed to comply with the rea-

sonable requests and notifications from the Defendant

City over a period of nine (9) months, Plaintiff’s permit to

connect with City water was revoked pursuant to Golds-

boro City Ordinance § 25-35 on December 15, 1993. A

App. 7

letter from Floyd M. McKeel, Chief Inspector, to the

Plaintiff dated December 15, 1993, informing Plaintiff of

this action, is attached hereto as Exhibit “C” and incorpo-

rated herein by reference.

17. That the Defendant City and its agents were at

all times acting properly and within the scope of their

authority as established by City Ordinance and State

Statutes.

18. That notice sufficient to advise Plaintiff to bring

his property into compliance with City Ordinances and

the State Building Code was provided, and Plaintiff's

right to due process has, in no way, been violated.

FOURTH DEFENSE

19. Asa further defense, and complete or partial bar

to any claim Plaintiff may have for damages, Defendant

asserts § 25-35 of the Goldsboro City Ordinances which

provides that “no party interested shall have a claim for

damage in consequence of [its City Water] permit being

revoked or annulled.”

COUNTER CLAIM

MOTION FOR MANDATORY INJUNCTION

AND ORDER OF ABATEMENT

20. Paragraphs 1 through 19 above are re-alleged

and incorporated herein by reference as if fully set forth.

21. That Plaintiff is in willful violation of Goldsboro

City Ordinance and the State Building Code in that he

refused and still refuses to install a grease interceptor at

App. 8

2102 North Highway 117 By-Pass, Goldsboro, North Car-

olina.

22. That the discharge of water by a restaurant busi-

ness at 2102 North Highway 117 By-Pass, Goldsboro,

North Carolina, into the City sewer system without the ]

installation of a grease interceptor would be detrimental

to the health, safety and welfare of the citizens of Defen-

dant Municipality.

23. That, if the Plaintiff wishes to receive a business

license and water permit to operate a restaurant business

at the location in question, the City is in need of a

mandatory injunction ordering Plaintiff to install a grease

interceptor to bring the property into compliance with

the North Carolina State Building Code and Goldsboro

City Ordinances.

WHEREFORE, the Defendants pray the Court as fol-

lows:

1. For an Order dismissing this action as to Defen-

dants McKeel and Southerland;

2. That the relief requested in Plaintiff's Complaint

be denied, and that he have and recover nothing by way

of damages, compensatory or punitive, from the Defen-

dants;

3. That the Court enter an Order of abatement and

mandatory injunction requiring Plaintiff to install a

grease interceptor in compliance with Goldsboro City

Ordinances and the North Carolina State Building Code

in the restaurant facility at 2102 North Highway 117 By-

Pass, Goldsboro, North Carolina, prior to the issuance of

App. 9

any permit to connect with City Water or to operate a

business at said location, all at his expense;

4. That Defendaiits have and recover the costs of

this action, including reasonable attorney’s fees, as may

be allowed by law; and

5. For such other and further relief as to the Court

seems just and proper.

This the 27th day of June, 1994.

EVERETT, WOMBLE, FINAN

& RIDDLE

/s/ L. Ashley Smith

State Bar No. 19273

' Attorney for Defendants

P.O. Drawer 10809

Goldsboro, NC 27532-0809

(919) 778-6707

App. 10

Exhibit “A”

City of Goldsboro

P. O. Drawer A

North Carolina

27533-9701

(919) 735-6121

March 31, 1993

Certification No. P364 761820

Oriental Jade Restaurant

2102 N. Highway 117 Bypass

Goldsboro, NC 27530

Dear Sir(s):

Thank you for the time you took to discuss the grease

problem at your restaurant. As I told you at the time of

our discussion, this is the second time in two years that

our sanitation department has had to clean out a large

section of sewer pipe where your building connects to

our sewer main.

I de not know how the grease is getting through, but

the fact is that it is ..tting through. Therefore, I must

insist that you ob*ain a licensed plumber to install a

‘grease trap that will be of sufficient size and gallon per

minute to protect our sewer. The fixtures that will need to

be put on the grease trap must include: the dishwasher,

the pots and pan sink, any floor drains that might receive

wash down from the cooking area and the can wash.

As is customary, we will allow you thirty (30) days

from the date of receipt of this letter to get the equipment

installed. It is hoped that you will comply with this letter

and further action can be avoided.

ila

a -

App. 11

If I can be of further assistan:2, please do not hesitate

to contact me by calling 580-438%. My office hours are

from 8:00 a.m. — 9:30 a.m. and frorzi 4:00 p.m. - 5:00 p.m.

Mond: « through Friday.

Yours truly,

/s/ John N. Hales

Plumbing /Mechanical Inspector

JNH:jg

cc: Floyd McKeel, Chief Inspector

Exhibit “B”

City of Goldsboro

P. O. Drawer A

North Carolina

27533-9701

December 3, 1993

(919)

Certification No. P375 015124

Mr. Tseng Fu Lin

Oriental Jade Restaurant

2102 N. Highway 117 Bypass

Goldsboro, NC 27530

Dear Mr. Lin:

735-6121

The City Manager has asked that I write you concern-

ing the reasons the Inspections Division of the City of

Goldsboro has required that a grease interceptor be

installed at your restaurant located at 2102 North High-

way 117 Bypass.

App. 12

I refer you to a certified letter dated March 31, 1993

from John Hales, Plumbing/ Mechanical Inspector for the

City of Goldsboro, a copy of which is attached hereto. I

believe this letter fully explains the Inspections Division’s

position concerning installation of a grease interceptor. |

ee ee ee m

If I may summarize, the City’s Maintenance Division

has been called to your restaurant on two occasions in

order to clean out a2 section of sanitary pipe which was

clogged with grease. Since your restaurant is the first

customer connected to the sanitary sewer main, the origin

of the grease can only be attributed to your facility. In

March, 1993, the Inspections Division requested that a

licensed plumber install a grease interceptor of sufficient

size and gallons per minute in order to protect the City of

Goldsboro’s sanitary sewer system. You were subse-

quently granted 30 days from the date of receipt of the

March 31, 1993 letter in order to comply with this direc-

tive.

As of this date, a grease interceptor has not been

installed at the Oriental Jade Restaurant. The City of

Goldsboro has the authority under the North Carolina

State Plumbing Code to mandate this requirement. I refer

to Chapter 8, Section 801-4 entitled “Grease Interceptors”

of the State Plumbing Code which states, in part, that:

“A grease interceptor shall be installed in the

waste line leading from sinks, drains or other

fixtures in the following establishments when,

in the opinion of the Plumbing Official, a hazard

exists: restaurants, hotel kitchens or bars, fac-

tory cafeterias or restaurants, clubs, or other |

uses where grease can be introduced into the !

App. 13

drainage system in quantities that can affect line

stoppage or hinder sewage disposal.”

The City of Goldsboro has performed a considerable

amount of maintenance on the sanitary sewer line coming

into your establishment. I must advise you that, until

such time a grease interceptor is installed at this location

in compliance with the State Plumbing Code, authoriza-

tion will not be forthcoming for permission to connect to

water, sanitary sewer or electrical service. The system

that currently exists at this restaurant is not achieving its

intended purpose. A grease interceptor must be installed

in order to meet City sanitary sewer standards.

I am asking for your cooperation in this matter. If

you have any questions or if I can be of assistance, you

may contact me at 580-4346.

Yours truly,

/s/ Floyd McKeel

Chief Inspector

FM/RMS/ssj

Attachment

App. 14

Exhibit “C”

City of Goldsboro

P. O. Drawer A

North Carolina

27533-9701

December 15, 1993

(919) 735-6121

Mr. Tseng Fu Lin

2102 N. Highway 117 Bypass

Goldsboro, NC 27530

Dear Mr. Lin:

This letter is to advise you that failure on your part to

install a grease trap at your restaurant, known as Oriental

Jade, located at the above mentioned address, by 12:00

p.m. Thursday, December 16, 1993, this office will have

no alternative but to have your water service discon-

nected.

You have been given ample opportunity to meet the

requirements of the State Building Code and the City

Ordinance requiring you to have a grease trap installed.

The first notice was mailed to you in March 31, 1993. You

have not, as of this date, complied with our request.

Therefore, failure on your part to comply with this notice

will result in the water service being terminated.

|

App. 15

Asking for your cooperation in this matter. If you

have any questions, please contact me by calling

580-4346.

FM:

Sincerely,

/s/ Floyd McKeel

/s/ Acknowledgment of Receival

Mr. Tseng Lin or Authorized

Representative

/s/ R. D. Roscoe

Officer, Goldsboro Police

Department

December 15, 1993, 11:12 a.m.

Date and Time of Delivery

App. 16

FILED: November 30, 1994, 3:06 p.m., Wayne County

Clerk of Superior Court

NORTH CAROLINA IN THE GENERAL COURT

WAYNE COUNTY OF JUSTICE SUPERIOR

TSENG FU LIN d/b/a eee daa ae cae os

ORIENTAL ‘

JADE RESTAURANT,

Plaintiff,

Vs. AFFIDAVIT OF

CITY OF GOLDSBORO, JOHN N. HALES

FLOYD M. McKEEL, agent,

and CHARLES

R. SOUTHERLAND, agent

Defendants.

NOW COMES, John N. Hales, being duly sworn, depose

and say:

1. That I am over eighteen years of age, and I am

competent to make the statements contained in this Affi-

davit.

2. Except for matters and facts which are stated

expressly upon the bases of information which I believe is

true, the statements and facts contained in this Affidavit

are based upon my own personal knowledge and experi-

ence.

3. That I am employed by the City of Goldsboro as

the Plumbing/Mechanical Inspector.

4. That the Plaintiff, Tseng Fu Lin, has complied

with the City of Goldsboro’s request to install a grease

interceptor at 2102 North Highway 117 Bypass, Golds-

boro, North Carolina, by installing a grease interceptor in

July, 1994.

a ee

—Se ee ee

App. 17

5. Further this affiant sayeth not.

This the 30th day of November, 1994.

/s/ John N. Hales

NORTH CAROLINA

WAYNE COUNTY

I, Cathleen D. Fink, a Notary Public in and for the

aforesaid State and County, do hereby certify that John N.

Hales personally appeared before me this day and

acknowledged the due execution of the foregoing instru-

ment.

WITNESS my hand and notarial seal, this the 30th

day of November, 1994.

/s/ Cathleen D. Fink

Notary Public

My Commission Expires: June 3, 1998

CERTIFICATE OF SERVICE

This is to certify that the undersigned has this date

served the document in the above entitled action upon all

other parties to this cause by

Hand delivering a copy thereof to the attor-

ney for each said party.

X Depositing a copy hereof, postage pre-paid in

the United States Mail, properly addressed to the attor-

ney for each said party.

App. 18

This 1st day of December, 1994.

/s/ L. Ashley Smith

For EVERETT, WOMBLE, >

FINAN & RIDDLE

App. 19

FILED: January 11, 1996, 11:28 a.m., Office of the Clerk,

Supreme Court of North Carolina

No. 5P96 EIGHT-B DISTRICT

NORTH CAROLINA SUPREME COURT

5

TSENG FU LIN, d/b/a

ORIENTAL JADE

RESTAURANT,

Plaintiff / Petitioner,

COA 95-657

From Wayne County

No. 94 CVS 860

V.

CITY OF GOLDSBORO,

FLOYD McKEEL, Agent,

and CHARLES R.

SOUTHERLAND,

Defendants /Respondents.

eee eee eee ee eee

RESPONSE TO PETITION FOR

DISCRETIONARY REVIEW

TO THE HONORABLE SUPREME COURT OF NORTH

CAROLINA:

Respondents, the City of Goldsboro, Floyd McKeel,

agent, and Charles R. Southerland, pursuant to Rule 15(d)

of the North Carolina Rules of Appellate Procedure and

N.C.G.S. § 7A-31, respectfully submit this response to

Petitioner’s Petition for Discretionary Review of the deci-

sion of the North Carolina Court of Appeals dated

December 19, 1995, Case No. COA95-657, affirming the

trial! court’s grant of summary judgment for Respondents.

Petitioner contends that review should be granted

because this cause involves legal principals [sic] of major

App. 20

significance to the jurisprudence of the State and Nation,

and the decision of the Court of Appeals appears likely to

be in conflict with decision of the North Carolina

Supreme Court, United States Supreme Court, and North

Carolina Court of Appeals.

In fact, the decision of the Court of Appeals affirming

the trial court’s grant of summary judgment for Respon-

dents on the grounds of governmental immunity is firmly

supported by the following legal authority:

1. Metz v. Asheville, 150 N.C. 748, 64 S.E. 881

(1909)

2. Lonon v. Talbert, 103 N.C. App. 686, 691, 407

S.E.2d 276, 280 (1991)

3. North Carolina General Statutes Sections

160A-174, 143-139

4. Goldsboro City Ordinance Section [sic] 25-37

5. North Carolina Plumbing Code, Volume 2,

Chapter 8, Section 801.4

The Court of Appeals also rejected Petitioner’s con-

tention that the City of Goldsboro Ordinance permitting

the actions taken by Respondents’ agents violated his

constitutional right to due process. This conclusion is

firmly supported and controlled by your holding in

McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d 475

(1990).

Finally, Petitioner’s contention in his Petition that

Respondents’ actions constituted an “inverse condemna-

tion without due process of law and just compensation”

was not made to nor considered by the Court of Appeals

App. 21

and should not be considered by this Court in determin-

ing whether to grant certiorari.

Accordingly, Respondents respectfully request that

this Court deny Petitioner’s Petition for Discretionary

Review.

Respectfully submitted this the 10th day of January,

1995.

EVERETT, WOMBLE, FINAN & RIDDLE

/s/ W. Harrell Everett, Jr. /s/ Stacey L. Fuller

Attorney for Respondents Attorney for Respondents

P. O. Drawer 10809 P. O. Drawer 10809

Goldsboro, NC 27532-0809 Goldsboro, NC 27532-0809

(919) 778-6707 (919) 778-6707

N.C. State Bar No. 1388 N.C. State Bar No. 21752

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that a copy of this Response to

Petition for Discretionary Review has this day been

served upon the Plaintiff-Petitioner by mailing a copy of

the same to his Counsel of Record, Robert E. Fuller, Jr.,

sent in the United States mail, postpaid to his address,

P.O. Box 1121, Goldsboro, NC 27533-1121, this the 10th

day of January, 1996.

EVERETT, WOMBLE,

FINAN & RIDDLE

/s/ Stacey L. Fuller

Attorney for Respondents

P. O. Drawer 10809

Goldsboro, NC 27532-0809

(919) 778-6707

N.C. State Bar No.: 21752

ee

App. 22

Goldsboro Code of Ordinances § 25-35. Permit revocation.

All permits to connect with the city water and sewer

systems shall be given up¢n the condition that the city

engineer may at any time, befeve the completion of the

connection, revoke and annul the permit when the work

is not being properly executed. No party interested shall

have a claim for damage in consequence of such permit

being revoked or annulled. (Ord. No. 1982-47, § 2,

10-4-82)

Goldsboro Code of Ordinances § 25-35

App. 23

Goldsboro Code of Ordinances § 25-37. City engineer to

grant permit, cause service lines to be laid; ownership of

service lines; revocation of permit, etc.

The city engineer may grant such permit and shall cause

suitable water service lines to be laid from the main water

line to and including the curb stop, which shall be located

near the abutting property line, and be provided with a

suitable meter box. Ownership of the service line from

main line to meter box lines with the property owners.

The work of furnishing and laying the line up to and

including the curb stop shall be performed by the city

maintenance superintendent and paid for in advance by

the property owner, including replacement tap. The

applicant shall furnish and lay the balance of the water

service line at his own expense, subject, however, to the

supervision and director of the plumbing inspector. Such

water service lines shall be laid to the depth of the

bottom of the main water line, unless otherwise permit-

ted by the plumbing inspector, and shall, when required

by the city, be covered with at least eighteen (18) inches

of some approved material to protect the water service

line from frost. All water and sewer service lines shall be

as specified in the North Carolina Plumbing Code, Vol-

ume II, and as approved by the plumbing inspector.

Backflow prevention devices shall be installed where

directed by the plumbing inspector. If the applicant, in

putting in any service lines from the property line to his

Structure, disregards the director of the city engineer,

maintenance superintendent or plumbing inspector in

any particular, the permit granted for the use of water

App. 24

may be revoked by the city engineer and the tap fee

forfeited to the city. (Ord. No. 1982-47, § 2, 10-4-82)

Goldsboro Code of Ordinances § 25-37.

App. 25

N.C.G.S. § 143-139 Enforcement of Building Code

(a) Procedural Requirements. — Subject to the provi-

sions set forth herein, the Building Code Council shall

adopt such procedural requirements in the North Caro-

lina State Building Code as shall appear reasonably nec-

essary for adequate enforcement of the Code while

safeguarding the rights of persons subject to the Code.

(b) General Building Regulations. - The Insurance

Commissioner shall have general supervision, through

the Division of Engineering of the Department of Insur-

ance of the administration and enforcement of all sections

of the North Carolina State Building code pertaining to

plumbing, electrical systems, general building restrictions

and regulations, heating and air conditioning, fire protec-

tion, and the construction of buildings generally, except

those sections of the Code, the enforcement of which is

specifically allocated to other agencies by subsections (c)

and (d) below. The Insurance Commissioner by means of

the Division of Engineering, shall exercise his duties in

the enforcement of the North Carolina State Building

Code (including local building codes which have super-

seded the State Building Code in a particular political

subdivision pursuant to G.S. 143-138(e)) in cooperation

with local officials and local inspectors duly appointed by

the governing body of any’ municipality or board of

county commissioners pursuant to Part 5 of Article 19 of

Chapter 160A of the General Statutes or Part 4 of Article

18 of Chapter 153A of the General Statutes, or other

applicable statutory authority.

(b1) Remedies. — In case any building or structure is

maintained, erected, constructed, or reconstructed or its

App. 26

purpose altered, so that it becomes in violation of this

Article or of the North Carolina State Building Code,

either the local enforcement officer or the State Commis-

sioner of Insurance or other State official with respon-

sibility under this section may, in addition to other

remedies, institute any appropriate action or proceeding

to: (i) prevent the unlawful maintenance, erection, con-

struction, or reconstruction or alteration of purpose, or

overcrowding, (ii) restrain, correct, or abate the violation,

or (iii) prevent the occupancy or use of the building,

structure, or land until the violation is corrected. In addi-

tion to the civil remedies set out in G.S. 160A-175 and

G.S. 153A-123, a county, city, or other political subdivi-

sion authorized to enforce the North Carolina Building

Code within its jurisdiction may, for the purposes states

in (i) through (iii) of this subsection, levy a civil penalty

for violation of the fire prevention code of the North

Carolina State Building Code, which penalty may be

recovered in a civil action in the nature of debt if the

offender does not pay the penalty within a prescribed

period to time after the offender has been cited for the

violation. If the Commissioner or other State official insti-

tutes an action or proceeding under this section, a county,

city or other political subdivision may not institute a civil

action under this section based upon the same violation.

Appeals from the imposition of any remedy set forth

herein, including the imposition of a civil penalty by a

county, city, or other political subdivision, shall be as

provided in G.S. 160A-434.

(c) Boilers. - The Bureau of Boiler Inspection of the

Department of Labor shall have general supervision of

the administration and enforcement of those sections of

App. 27

the North Carolina State Building Code which pertain to

boilers of the types enumerated in Article 7 of Chapter 95

of the General Statutes.

(d) Elevators. - The Department of Labor shall have

general supervision of the administration and enforce-

ment of those sections of the North Carolina State Build-

ing Code which pertain to elevators, moving stairways,

and amusement devices such as merry-go-rounds, roller

coasters, Ferris wheels, etc. (1957, c. 1138; 1963, c. 811;

1989, c. 681, s. 11; 1993, c. 329, s. 2.)

N.C.G.S. § 143-139

N.C.G.S. § 160A-174. General ordinance — making power.

(a) A city may by ordinance define, prohibit, regu-

late, or abate acts, omissions, or conditions, detrimental

to the health, safety, or welfare of its citizens and the

peace and dignity of the city, and may define and abate

App. 28

nuisances.

(b) A city ordinance shall be consistent with the

Constitution and laws of North Carolina and the United

States. An ordinance is not consistent with State or fed-

eral laws when:

(1)

(2)

(3)

(4)

(5)

(6)

The ordinance infringes a liberty guaran-

teed to the people by the State or federal

Constitution;

The ordinance makes unlawful an act,

omission or condition which is expressly

made lawful by State or federal law;

The ordinance makes lawful an act, omis-

sion, or condition which is expressly made

unlawful by State or federal law;

The ordinance purports to regulate a sub-

ject that cites [sic] are expressly forbidden

to regulate by State or federal law;

The ordinance purports to regulate a field

for which a State or federal statute clearly

shows a legislative intent to provide a com-

plete and integrated regulatory scheme to

the exclusion of local regulation;

The elements of an offense defined by a city

ordinance are identical to the elements of

an offense defined by State or federal law.

App. 29

The fact that a State or federal law, standing along, [sic]

makes a given act, omission, or condition unlawful shall

not preclude city ordinances requiring a higher standard

of conduct or condition. (1971, c. 698, s. 1.)

N.C.G.S. § 160A-174

App. 30

N.C.G.S. § 160A-311. Public enterprise defined.

As used in this Article, the term “public enterprise”

includes:

(1) Electric power generation, transmission, and distri-

bution systems;

(2) Water supply and distribution systems;

(3) Wastewater collection, treatment, and disposal sys-

tems of all types, including septic tank systems or

other on-site collection or disposal facilities or sys-

tems;

(4) Gas production, storage, transmission, and distribu-

tion systems, where systems shall also include the

purchase and/or lease of natural gas fields and natu-

ral gas reserves, the purchase of natural gas sup-

plies, and the surveying, drilling and any other

activities related to the exploration for natural gas,

whether within the State or without;

(5) Public transportation systems;

(6) Solid waste collection and disposal systems and

facilities;

(7) Cable television systems;

(8) Off-street parking facilities and systems;

(9) Airports;

(10) Structural and natural stormwater and drainage sys-

tems of all types. (1971, c. 698, s. 1; 1975, c. 549, s. 2;

c. 821, s. 3; 1977, c. 514, s. 2; 1979, c. 619, s. 2; 1989, c.

643, s. 5; 1991 (Reg. Sess., 1992), c. 944, s. 14.)

N.C.G.S. § 160A-311

App. 31

N.C.G.S. § 160A-312. Authority to operate public enterprises.

(a) Acity shall have authority to acquire, construct,

establish, enlarge, improve, maintain, own, operate, and

contract for the operation of any or all of the public

enterprises as defined in this Article to furnish services to

the city and its citizens. Subject to Part 2 of this Article, a

city may acquire, construct, establish, enlarge, improve,

maintain, own, and operate any public enterprise outside

its corporate limits, within reasonable limitations, but in

no case shall a city by [sic] held liable for damages to

those outside the corporate limits for failure to furnish

any public enterprise service.

(b) A city shall have full authority to protect and

regulate any public enterprise system belonging to or

operated by it by adequate and reasonable rules. The

rules shall be adopted by ordinance, shall apply to the

public enterprise system both within and outside the

corporate limits of the city, and may be enforced with the

remedies available under any provision of law.

(c) A city may operate that part of a gas system

involving the purchase and/or lease or natural gas fields,

natural gas reserves and natural gas supplies and the

surveying, drilling or any other activities related to the

exploration for natural gas, in a partnership or joint ven-

ture arrangement with natural gas utilities and private

enterprise. (1971, c. 698, s. 1; 1973, c. 426, s. 51; 1975, c.

821, s. 5; 1979, 2nd Sess., c. 1247, s. 29; 1991 (Reg. Sess.,

1992), c. 836, s. 1.)

N.C.G.S. § 160A-312

App. 32

N.C.G.S. § 160A-411. Inspection Department.

Every city in the State is hereby authorized to create

an inspection department, and may appoint one or more

inspectors who may be given the titles of building inspec-

tor, electrical inspector, plumbing inspector, housing

inspector, zoning inspector, heating and air-conditioning

inspector, five [sic] prevention inspector, or deputy or

assistant inspector, or such other titles as may be gener-

ally descriptive of the duties assigned. The department

may be headed by a superintendent or director of inspec-

tions. Every city shall perform the duties and respon-

sibilities set forth in G.S. 160A-412 either by: (I) creating

its own inspection department; (ii) creating a joint inspec-

tion department in cooperation with one or more other

units of local government, pursuant to G.S. 106A-413 or

Part 1 of Article 20 of this Chapter; (iii) contracting with

another unit of local government for the provision of

inspection services pursuant to Part 1 of Article 20 of this

Chapter; or (iv) arranging for the county in which it is

located to perform inspection services within the city’s

jurisdiction as authorized by G.S. 160A-413 and GS.

160A-360. Such action shall be taken no later than the

applicable date in the schedule below, according to the

city’s population as published in the 1970 United States

Census:

Cities over 75,000 population - July 1, 1979

Cities between 50,001 and 75,000 - July 1, 1981

Cities between 25,001 and 50,000 - July 1, 1983

Cities 25,000 and under - July 1, 1985.

App. 33

In the event that any city shall fail to provide inspec-

tion services by the date specified above or shall cease to

provide such services at any time thereafter, the Commis-

sioner of Insurance shall arrange for the provision of such

services, either through personnel employed by his

department or through an arrangement with other units

of government. In either event, the Commissioner shall

have any [sic] may exercise within the city’s jurisdiction

all powers made available to the city council with respect

to building inspection ander Part 5 of Article 19, and Part

1 of Article 20 of this Chapter. Whenever the Commis-

sioner has intervened in this manner, the city may assume

provision of inspection services only after giving the

Commissioner two years’ written notice of its intention to

do so; provided, however, that the Commissioner may

waive this requirement or permit assumption at an earlier

date if he finds that such earlier assumption will not

unduly interfere with arrangements he has made for the

provision of those services. (1969, c. 1065, s. 1; 1971, c.

998, s. 1; 1977, c. 531, s. 5.)

N.C.G.S. § 160A-411

App. 34

North Carolina State Plumbing Code (1991)

Chapter 8: Interceptors, Separators and Backwater Valves

§ 801.1 When Required

Interceptors or separators shall be provided when, in the

opinion of the Plumbing Official, they are necessary for

the proper handling of wastes containing ingredients

harmful to the building drainage system, the public

sewer, or sewage treatment plant or processes.

§ 801.4 Grease Interceptors

A grease interceptor shall be installed in the waste line

leading from sinks, drains or other fixtures in the follow-

ing establishments when, in the opinion of the Plumbing

Official, a hazard exists; restaurants, hotel kitchens or

bars, factory cafeterias or restaurants, clubs, or other uses

where grease can be introduced into the drainage system

in quantities that can affect line stoppage or hinder sew-

age disposal.

North Carolina Plumbing Code, Volume 2, Ch. 8, §§ 801.1,

801.4 (1991)