Sec. 1-3. Definitions and rules of construction.
   In the construction of this Code and of all ordinances, the following definitions and rules of construction shall be observed, unless inconsistent with the manifest intent of the city council or the context clearly requires otherwise:
   Approved screening includes, but is not limited to, opaque enclosures, buildings, natural objects, plantings, fencings, walls or other appropriate means to visually conceal the view of junked or inoperable motor vehicles (or other uses that are required to be screened) from adjoining property or the public roadway at any season of the year. In determining whether screening is adequate, the following factors, along with others, should be considered: topographical features of the property and naturally occurring visual obstructions, such as but not limited to vegetation.
   Approved screening plan means a site specific plan approved by the person or board issuing the permit and that includes but is not limited to natural objects, plantings, fencings, walls or other appropriate means to visually conceal the view of junked or inoperable motor vehicles (or other use that is required to be screened) from the public roadway at any season of the year. In determining whether to approve a screening plan, the following factors, along with others, should be considered; topographical features of the property and naturally occurring visual obstructions, such as but not limited to vegetation.
   Automobile graveyard means any establishment or place of business which is maintained, used, or operated for storing, keeping, buying or selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor vehicle parts. Any establishment or place of business upon which six or more unlicensed, used motor vehicles which cannot be operated under their own power are kept or stored for a period of fifteen (15) days or more shall be deemed to be an "automobile graveyard."
   State Law References: Similar provisions, G.S.  136-143(1).
   Automobile repair shop means any establishment or place of business which is maintained or operated for the primary purpose of making mechanical and/or body repairs to motor vehicles. Factors to be considered in determining the primary purpose of the shop include but are not limited to the following:
   (1)   Gross receipts of the business attributable to repair service broken down into the following categories: new parts, labor for service, used auto parts;
   (2)   The age of each vehicle and how long each vehicle has been on the property (used vehicles that are on the property for longer than six (6) months may be evidence that the business is not an automobile repair shop, but rather an automobile graveyard and/or junkyard);
   (3)   Whether business has initiated proceeding to declare vehicles abandoned under state law so the vehicle can be disposed of;
   (4)   Any business-type licenses that are held, or the lack thereof; and
   (5)   The number and configuration of grease bays or repair work areas.
   For the purposes of this definition, automobile sales businesses where the service department generates fifty (50) percent or more of the gross receipts of the business are considered to be automobile repair shops and subject to all regulations governing automobile repair shops. For purposes of this article, automobile tire sales and service shops, as defined herein, shall be considered automobile repair shops. An automobile repair shop that operates a combination of towing, tire and sales shall comply with all the regulations governing each use.
   Automobile sales (also referred to as "car sales" or "motor vehicle sales") businesses means any establishment or place of business which is maintained or operated for the primary purpose of selling motor vehicles. For purposes of this definition, factors to be considered in determining the primary purpose of the business include but are not limited to the following:
   (1)   Gross receipts of the business attributable to vehicle sales or service broken down into the following categories: vehicle sales, new parts, labor for service, and used auto parts;
   (2)   The age of each vehicle and how long each vehicle has been on the property (used vehicles that are on the property for longer than twelve (12) months may be evidence that the business is not an automobile sales business, but rather an automobile graveyard and/or junkyard);
   (3)   Any business-type licenses that are held, or the lack thereof; and
   (4)   The number and configuration of grease bays or repair work areas.
   For the purposes of this definition, automobile sales businesses where the service department generates fifty (50) percent or more of the gross receipts of the business are considered to be automobile repair shops and subject to all regulations governing automobile repair shops.
   Automobile tire sales and service shops means any establishment or place of business which is maintained or operated for the primary purpose of selling tires and/or tire repair. For purposes of this definition, factors to be considered in determining the primary purpose of the shop include but are not limited to the following:
   (1)   Gross receipts of the business attributable to tire service.
   (2)   The age of each vehicle and how long each vehicle has been on the property (used vehicles that are on the property for longer than six (6) months may be evidence that the business is not an automobile tire shop, but rather an automobile graveyard and/or junkyard).
   (3)   The length of time that used tires are stored on the property.
   (4)   Used tires stored on the property longer than thirty (30) days should be evidence that the business is not an automobile tire shop, but rather a junkyard.
   (5)   Any business-type licenses that are held, or the lack thereof. For the purpose of this chapter tire, tire sales and services shall be considered an automobile repair shop.
   Automobile towing and wrecker service businesses means any establishment or place of business which is maintained or operated for the primary purpose of towing motor vehicles. For purposes of this definition, factors to be considered in determining the primary purpose of the shop include but are not limited to the following:
   (1)   Gross receipts of the business attributable to towing service.
   (2)   The age of each vehicle and how long each vehicle has been on the property (used vehicles that are on the property for longer than six (6) months may be evidence that the business is not an automobile towing service, but rather a automobile graveyard and/or junkyard).
   (3)   The length of time and number of junked vehicles that are stored on the property.
   (4)   Whether business has initiated proceeding to declare vehicles abandoned under state law so the vehicle can be disposed of.
   (5)   Any business-type licenses that are held, or the lack thereof. For the purpose of this chapter tire, towing and wrecking services shall be considered an automobile repair shop.
   Charter means the Charter of the City of Marion, North Carolina as printed in Part I of this volume.
   Citation assessing civil penalty (hereinafter "civil citation") is a written document which finds the person(s) therein named in violation of the Code and provides the violator with the following information concerning the violation:
   1.   Name and signature of the enforcement officer witnessing the violation;
   2.   Date violation witnessed and date of issuance;
   3.   Description of the violation witnessed;
   4.   Reference to the provision of the Code that has been or is being violated;
   5.   Description of the action that must be taken to correct the violation;
   6.   Description of the penalty imposed for the violation and direct that must be paid within ten (10) days of issuance of citation;
   7.   Outline of the process whereby the violator can appeal the citation;
   8.   Warning that increasingly severe penalties may be assessed for violations that continue without being corrected or for multiple violations by the same violator.
   City means the City of Marion, in the County of McDowell in the State of North Carolina, except as otherwise provided.
   City council means and refers to the governing body of the City of Marion, North Carolina.
   City limits means the legal boundary of the City of Marion, North Carolina.
   Code means the Code of Ordinances, City of Marion, North Carolina as designated in section 1-1.
   Computation of time. In computing any period of time prescribed or allowed by this Code or by order of court, the day of the act, event, default or publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday. Eastern standard time shall be the official time except during that period when what is commonly known as "daylight saving time" is in effect, through adoption by the city council or otherwise.
   State Law References: Computation of time, G.S.  1-593.
   County means the County of McDowell in the State of North Carolina, except as otherwise provided.
   Criminal citation is a written document which is a directive issued by a law enforcement officer that a person(s) appear in court and answer a misdemeanor or infraction charge(s). A criminal citation may be issued by a law enforcement officer when he has probable cause to believe that there has been a violation of this Code that would be a misdemeanor or infraction. A criminal citation shall state the following:
   1.   Name and signature of the law enforcement officer issuing the citation;
   2.   Date of issuance of the citation;
   3.   Name and address of the person cited, or other identification if that cannot be ascertained;
   4.   Identification of the crime charged, including the date, and where material, identify the property and other persons involved;
   5.   Direct the person cited to appear in a designated court at a designated time and date.
   Daytime, nighttime. "Daytime" is the period of time between sunrise and sunset, and "nighttime" is the period of time between sunset and sunrise.
   Delegation of authority. Whenever a provision appears requiring the head of a department of the city to do some act or make certain inspections, it is to be construed to authorize the head of the department to designate, delegate and authorize subordinates to perform the required act or make the required inspection unless the terms of the provision or section designate otherwise.
   Enforcement officer means any officer, employee or contracted agent of the City of Marion charged with the enforcement of some or all of the provisions of the Code. Enforcement officers shall have the power and authority to conduct investigations and enter upon premises (properties, buildings and/or dwellings) for the purpose of such investigations. Enforcement officers shall also have the power and authority to administer oaths and affirmations, examine witnesses and receive evidence. Enforcement officer may secure administrative search warrants in order to aid them in the performance of their duties
   Gasoline service or filling stations means any establishment or place of business which is maintained or operated for the primary purpose of selling gasoline or motor fuel or which contains fuel pumps and other such fuel dispensing appliances. For purposes of this definition, factors to be considered in determining the primary purpose of the business include but are not limited to the following:
   (1)   Gross receipts of the business attributable to gasoline or motor fuel sales or service broken down into the following categories: gasoline or motor fuel sales, labor for service, and parts.
   (2)   The age of each vehicle and how long each vehicle has been on the property (used vehicles that are on the property for longer than six (6) months may be evidence that the business is not a gasoline service or filling station, but rather an automobile graveyard and/or junkyard).
   (3)   Any business-type licenses that are held, or the lack thereof, and
   (4)   The number of gasoline pumps or fuel distribution devices.
   (5)   The number and configuration of grease bays or repair work areas.
   For the purposes of this definition, gasoline service or filling stations where the service or repair work constitutes fifty (50) percent or more of the gross receipts of the business are considered to be automobile repair shops and subject to all regulations governing automobile repair shops.
   Gender. Words importing the masculine gender shall include the feminine and neuter.
   Governor means the Governor of North Carolina.
   Inoperable motor vehicle. See "Junked and/or Inoperable Motor Vehicle".
   In view or visible means that it is capable of being seen without visual aid by a person of normal visual acuity.
   Joint authority. All words giving a joint authority to three (3) or more persons or officers shall be construed as giving such authority to a majority of such persons or officers.
   Junk means old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber, debris, waste or junked, dismantled or wrecked automobiles, or parts thereof, iron, steel, and other old or scrap ferrous or nonferrous material.
   State Law References: Similar provisions, G.S.  136-143(3).
   Junked and/or inoperable motor vehicle means a vehicle that does not display a current license plate and that:
   (1)   Is partially dismantled or wrecked, or
   (2)   Cannot be self-propelled or moved in the manner in which it originally was intended to move, or
   (3)   Is more than five (5) years old and appears to be worth less than one hundred dollars ($100.00).
   State Law References: Similar provisions, G.S.  160A-303.2(a).
   Junkyard means an establishment or place of business which is maintained, operated, or used for storing, keeping, buying, or selling junk, or for maintenance or operation of an automobile graveyard, and the terms shall include garbage dumps and sanitary fills. An establishment or place of business which stores or keeps for a period of fifteen (15) days or more materials within the meaning of "junk" as defined herein which had been derived or created as a result of industrial activity shall be deemed to be a junkyard.
   State Law References: Similar provisions, G.S.  136-143(4).
   Keeper and proprietor mean and include persons, firms, associations, corporations, clubs and partnerships, whether acting by themselves or as a servant, agent or employee.
   Major automobile repair work means work on a vehicle that is necessary to ensure the correct operation of the vehicle which cannot be completed in less than one (1) hour.
   Mayor means the mayor of the City of Marion.
   Minor automobile repair work means work on a vehicle that is necessary to ensure the correct operation of the vehicle which can be completed in less than one (1) hour.
   Month means a calendar month.
   Nontechnical and technical words. Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning.
   Notice of violation with opportunity to correct (hereinafter "notice of violation") is a written document which finds the person(s) therein named in violation of the Code and provides the violator with the following information concerning the violation:
   1.   Name and signature of the city enforcement officer witnessing the violation;
   2.   Date violation witnessed and date of issuance;
   3.   Description of the violation witnessed;
   4.   Reference to the provision of the code that has been or is being violated;
   5.   Description of the action that must be taken to correct the violation;
   6.   Time period within which the violation must be corrected in order to avoid civil penalty and/or other enforcement action;
   7.   Outline of the process whereby the violator can appeal the citation;
   8.   Warning that failure to correct within the time period prescribed may subject the violator to civil penalties and/or other enforcement action.
   Nuisance vehicle means a vehicle on public or private property that is determined and declared to be a health or safety hazard, a public nuisance and unlawful, including a vehicle found to be:
   (1)   A breeding ground or harbor for mosquitoes, or other insects, rats, or pests; or
   (2)   A point of heavy growth of weeds or other noxious vegetation over eight (8) inches in height; or
   (3)   A point of collection of pools or pounds of water; or
   (4)   A point of concentration of quantities of gasoline oil or other flammable or explosive materials as evidenced by odor; or
   (5)   One which has areas of confinement which cannot be operated from the inside, such as trunk, hoods, etc.; or
   (6)   So situated or located that there is a danger of it falling or turning over; or
   (7)   One which is a point of collection of garbage, food waste, animal waste or any rotten or putrescible matter of any kind; or
   (8)   One which has sharp points thereon which are jagged or contain sharp edges of metal or glass; or
   (9)   Located within a public right-of-way and which is creating a traffic hazard or impeding ingress or egress into a residential dwelling or place of business.
   (10)   Any other vehicle specifically declared a health and safety hazard and a public nuisance by the city council.
   Number. Words used in the singular include the plural and the plural includes the singular number.
   Oath shall be construed to include an affirmation in all cases in which, by law, an affirmation may be substituted for an oath, and in such cases the words "affirm" and "affirmed" shall be equivalent to the words, "swear" and "sworn."
   Or, and. "Or" may be read "and," and "and" may be read "or" if the sense requires it.
   Officials, boards, commissions, etc. Whenever reference is made to "officials," "boards" and "commissions" by title only, they shall be deemed to refer to the officials, boards and commissions of the City of Marion.
   Owner, when applied to buildings or land, shall include any part owner, joint owner, tenant in common, joint tenant or tenant by the entirety, of the whole or part of such building or land.
   Person includes a corporation, firm, partnership, association, organization and any other group acting as a unit, as well as an individual.
   Personal property includes every species of property except real property as defined in this section.
   Preceding, following mean next before and next after respectively.
   Property includes real and personal property.
   Real property includes lands, tenements and hereditaments.
   Residence means the place adopted by a person as his place of habitation and to which, whenever he is absent, he has the intention of returning. When a person eats at one place and sleeps at another, the place where such person sleeps shall be deemed his residence.
   Right-of-way means land that is dedicated or otherwise legally established for public use.
   Roadway means that portion of a street improved, designed or ordinarily used for vehicular traffic.
   Shall; may. The word "shall" is always mandatory and not merely directory; "may" is permissive.
   Sidewalk means that portion of the street right-of-way which is improved and designated for the use of pedestrians.
   Signature or subscription shall include a mark where a person cannot write.
   State means the State of North Carolina.
   Statute references. Whenever reference is made, for example, to G.S. section 160A-272, it shall be construed to refer to General Statutes of North Carolina, section 160A-272, as amended, or to whatever section is cited.
   Street means and includes any public way, road, highway, street, avenue, boulevard, parkway, lane, path, viaduct, bridge or any other name a street is commonly known by, or any public place and the approaches thereto within the city when any part thereof is open to the use of the public and established for purposes of vehicular traffic.
   Tenant, occupant applied to a building or land, includes any person who occupies the whole or part of such building or land, whether alone or with others.
   Tense. Words used in the past or present tense include the future as well as the past and the present.
   Title of office. The title of any office shall be construed to include the words, "of the City of Marion, North Carolina."
   Violator is any person or entity whom the enforcement officer reasonably believes has violated any provision of the code. A violator may be an occupant, owner, lessee, lessor, or any person or entity having beneficial use of the affected property, or any or all of the above.
   Violation or violation of this Code means any of the following:
   1.   Doing an act that is prohibited or made or declared unlawful, an offense, a violation, an infraction, a civil infraction or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.
   2.   Failure to perform an act that is required to be performed by ordinance or by rule or regulation authorized by ordinance.
   3.   Failure to perform an act if the failure is prohibited or is made or declared unlawful, an offense, a violation, an infraction, a civil infraction or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.
   "Violation" or "violation of this Code" does not include the failure of an enforcement officer or city employee to perform an official duty unless it is specifically provided that the failure to perform the duty is to be punished as provided in this Code.
   Writing, written includes printing and any other mode of representing words and letters.
   Year means calendar year.
(Ord. No. O-03-10-21-02,  1, 10-21-03; Ord. No. O-08-01-15-3,  1(1), 1-15-08)
   State Law References: Definitions and rules of construction for statutes, G.S.  12-3.