Monday, September 26, 2022

Update: Oak Island allows beach access to residents but not visitors, questions of equity to town go unanswered

(Port City Daily photo/Johanna Ferebee)

Update: The town has backed away from the partial ban which allowed locals, but not visitors, to use the beach. Town officials have still not answered any questions about the original ban or its legality. While they claim the updated total ban is to ‘ensure compliance’ with the state’s mandates, the Governor’s ‘stay home’ order makes no mention of the beaches. More here.

OAK ISLAND — The novel coronavirus has caused a shutdown of cities and towns across the state, leading to the closure of beaches across the region. This was, in part, done to prevent visitors from larger, more populated areas, from seeing the pandemic as a good time to escape to the beach, where resources are already more limited than in cities with larger populations.

OAK ISLAND — The novel coronavirus has caused a shutdown of cities and towns across the state, leading to the closure of beaches across the region. This was, in part, done to prevent visitors from larger, more populated areas, from seeing the pandemic as a good time to escape to the beach, where resources are already more limited than in cities with larger populations.

In the Town of Oak Island, Mayor Ken Thomas has made three amendments to the town’s State of Emergency Declaration; his latest removes the restrictions for beach access for residents and property owners.

The declaration of a state of emergency often gives a jurisdiction powers that it would not normally have; in some instances, like during hurricanes, towns have restricted the sale and possession of dangerous weapons (although this does not apply to legally owned firearms).

But the unequal application of the amended order does lead to questions as to the legality of the law as well as the enforcement of the order. This is especially complicated, considering the beaches are actually not the property of the town; rather, they are considered a part of the public trust and access to them is granted by the state, not individual towns.

According to the town’s press release, if you are a town resident or property owner, you are allowed to walk onto the beach, however, parking lots are closed for beach access.

So how will the town enforce this?

With the use of the police department, apparently.

“The Police Department will be issuing tickets according to the Declaration, which reads: NOTE: ANY PERSON WHO VIOLATES ANY PROVISION OF THIS DECLARATION OR ANY PROVISION OF ANY EXECUTIVE ORDER ISSUED BY THE GOVERNOR SHALL BE GUILTY OF A CLASS 2 MISDEMEANOR IN ACCORDANCE WITH N.C. GEN. STATUTE § 14-288.20A,” according to the press release.

Police did not respond to a request for comment on how they plan on enforcing this restriction and if this would be a good use of police resources.

But can a town actually close down the beaches to some but not others?

In general, the government is not able to enforce certain restrictions to some while ignoring them for others; this, in most cases, would be considered a form of discrimination. In this instance, only property owners or town residents would be given access to public trust land. And while there are private beach access points across the state, in general, public accesses are not restricted based on residency.

But under state law, the declaration of a state of emergency gives local governments a number of powers that are not typically granted.

Due process

Due process is a term that can be found throughout the history of the United States and is defined as, “a judicial requirement that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual.”

While the Fifth Amendment of the Constitution is perhaps most famously known for granting those accused of a crime the right to not self-incriminate, another important part of that amendment is the Due Process Clause.

The amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury… nor be deprived of life, liberty, or property, without due process of law …” (italics added).

This is just the first instance of due process in the Constitution, the second time it is mentioned is in the 14th Amendmendement and is known as the Equal Protection Clause.

It again reiterates the need for equal protection of the law and reads, “No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.”

However, during a state of emergency declaration, powers granted to local government are broad and give local government lots of power over its citizens.

General Statute 166A-19.31 sets out the guidelines for localities when it comes to declaring a state of emergency. This statute gives cities and counties the right to impose curfews, mandate an evacuate, prohibit the sale of alcohol, and even the sale of ‘dangerous weapons and substances’ (note, this section does not allow the ban on the sale of firearms).

Related story: Conflicting rights: How a state of emergency can challenge constitutional rights

No response

Throughout last week. Port City Daily reached out to town officials, the chief of police, the town manager, as well as the town attorney, to ask about the justification of permitting residents to access to the beaches while prohibiting non-property owners — but at the time of publishing — nobody acknowledged or responded to the requests.

It is not clear the justification of the restrictions to visitors, although there is a section of the statute that could potentially be cited as the reasoning.

The statute reads, “Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.”

You can read the full statute below.

Type of Prohibitions and Restrictions Authorized. – The ordinances authorized by this section may permit prohibitions and restrictions:

1) Of movements of people in public places, including any of the following:

a. Imposing a curfew.
b. Directing and compelling the voluntary or mandatory evacuation of all or part of the population from any stricken or threatened area within the governing body’s jurisdiction.
c. Prescribing routes, modes of transportation, and destinations in connection with evacuation.
d. Controlling ingress and egress of an emergency area, and the movement of persons within that area.
e. Providing for the closure, within the emergency area, of streets, roads, highways, bridges, public vehicular areas, or other areas ordinarily used for vehicular travel, except to the movement of emergency responders and other persons necessary for recovery from the emergency. In addition to any other notice or dissemination of information, notification of any closure of a road or public vehicular area under the authority of this sub-subdivision shall be given to the Department of Transportation as soon as practicable. The ordinance may designate the sheriff to exercise the authority granted by this sub-subdivision. G.S. 166A-19.70(c) and (d) shall apply to this sub-subdivision.

(2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate.

(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages.

(4) Upon the possession, transportation, sale, purchase, storage, and use of gasoline, and dangerous weapons and substances, except that this subdivision does not authorize prohibitions or restrictions on lawfully possessed firearms or ammunition. As used in this subdivision, the term “dangerous weapons and substances” has the same meaning as it does under G.S. 14-288.1. As used in this subdivision, the term “firearm” has the same meaning as it does under G.S. 14-409.39(2).

(5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.

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