Saturday, December 1, 2012

Something smells, but it’s not the mullet

On Monday, Dec. 3, the Dare County Board of Commissioners is expected to take up the topic of whether to authorize permits to be issued to allow temporary seafood sales on Hatteras Island – and perhaps the rest of the unincorporated area of Dare County in specific zoning areas and while complying with local health laws. If the request is approved as currently drafted, the permits would be tied to specific locations on private property with the property owner’s permission and assurance that a restroom and parking spaces would be made available to the seafood vendor. It would not allow indiscriminate ‘roadside’ sales. The permit would cover just two identified sites per vendor. Any future permits would be issued only after the applicant could show that he/she met all the standards set out in the proposed language.

At a time when Hatteras Island businesses are being encouraged to think outside the box when creating new business enterprises and strengthening established ones, the response of some to the idea has been met with opposition, misinformation and fear of competition. But the proposal also has garnered a long list of supporters who say the time is ripe for such an enterprise and actually reflects the culture of the island.

The topic was slated for the last commissioners’ meeting but Chairman Warren Judge explained that it had been pulled from the agenda because two of the commissioners were recused and thus there wasn’t a quorum present to discuss and vote on the issue.

Commissioners Richard Johnson and Mike Johnson were not in attendance. Those present were Judge, Jack Shea, Max Dutton, Virginia Tillett and Allen Burrus. A quorum of the board is four commissioners so if they didn’t have enough to vote on the issue, then two in attendance apparently were excusing themselves from participating. And that is the problem. Those refusing to participate in the discussion and subsequent vote were not identified nor were the reasons for their recusals. For those who aren’t familiar with the word, recusal means to be excused from discussing and voting on an issue which is a primary responsibility that comes along with holding the office.

Not participating in decision-making is not something that commissioners can do just because they don’t want to make public remarks or cast a vote on an issue. Decision-making is their job and the only time that they are excused from carrying out this responsibility is if they meet certain tests.

North Carolina law 153A-340 (g) states: “A member of the board of county commissioners shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. Members of appointed boards providing advice to the board of county commissioners shall not vote on recommendations regarding any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member.

State stature 153A‑44 states that the board may excuse a member from voting, but only upon questions involving the member's own financial interest or official conduct or on matters on which the member is prohibited from voting under G.S. 14‑234, 153A‑340(g), or 153A‑345(e1).

So where were the questions? They weren’t asked during open session of the board meeting and the identity of those wishing not to participate was not shared with the public. Judge said that applicant Mark Rawl had been notified before the meeting that the item wouldn’t be discussed because of the recusals and lack of a quorum but how did Judge know that if the board had not yet discussed the matter?

The public is left to guess who is being excused from speaking and voting publically about the matter. Two of the members are connected to the grocery business – Burrus owns a grocery store in Hatteras village, a substantial distance from Rawl’s proposed sites. Dutton works for Harris Teeter in Kill Devil Hills. If these are the two members in question, what is the direct and substantial financial impact related to allowing temporary seafood sales in Avon?

And if the other board members feel inclined to believe that Burrus and Dutton meet the level of financial impact required by law, then does that also call into question Dan Oden’s participation in the Planning Board vote? Personally, even though his company leases space to a fish market, I don’t think that has the potential for “direct and substancial” impact any more than that for Burrus and Dutton.

Another concern with the process thus far is the reason given for the Planning Board’s recommendation for the denial. According to a background paper written by Planning Director Donna Creef, the board’s 3-2 vote against Rawl’s request seemed to be based on health and safety concerns, but the health department has jurisdiction over those matters and has set rules to ensure that health and safety of the public is protected. Health and safety is not within the jurisdiction of the Planning Board in this instance.

It doesn’t take a mental giant to know that what is really behind the hesitation to allow this proposed regulated use is that it might be competition to fish markets and some grocery stores. But times are changing in Dare County and perhaps instead of trying to kill the idea, those concerned business owners should start thinking outside the box and consider adding it to their own business models.

A successful retailer will tell you that the profits from impulse buying make a huge positive difference in their bottom lines. Not only do many of the profitable businesses have items next to their registers or at their front doors, they also frequently take their wares outside to lure folks into the building.

Fish markets could easily expand the number of locations for their businesses by using temporary sales permits. The location could be in the next village or, better yet, in their own parking lot. Potential customers often are hesitant about walking into small stores because they feel if they look around, talk to anyone or ask prices, then they are sort of committed to buying something – so to avoid that uncomfortable feeling, they simply don’t go inside. But outside vendors are different. They can ride up in their vehicle and just roll down the window to ask what the catch of the day is – it is a great opportunity to either sell them something on the spot or let them know that a great catch of Red Drum was just delivered from the boat and is available inside.

Grocers also could take advantage by setting up their own seafood stand in their parking lot or allowing someone else to do so. Buying seafood often means also purchasing breader, ingredients for side dishes, spices, etc.

And for those who think I don’t know what I’m talking about, for years from Memorial Day to Labor Day my husband drove all the way to Corolla where he had a temporary seafood stand because he lived in Dare County, then the only county in the state that prohibited them.

For 10 years, his stand was in the parking lot of a small shopping center with the owner's permission. The ice cream store, Winks grocery and the real estate company all benefited from him being there because folks would visit those businesses since they were stopping anyway to buy from Jay. If Jay wasn't open by Memorial Day, the owners of the surrounding businesses were calling to make sure he was coming because they understood the value of him being there.

Never should government be the one to decide who is worthy of doing commerce based on investment. That is a very slippery slope – should small lumber companies such as Dare Supply close down because we now have Lowes and Home Depot? And is it time to get rid of the small clothing stores because TJ Maxx and Belk’s have invested more money?

The answer of course is a resounding “No!” The consumer takes care of sorting the wheat from the shaft in the arena of free trade. So let’s hope government gets out of the way and allows Rawl to exercise his right to earn an honest living.

And while they are at it, go back and clean up the recusal matter – time to get rid of the odor.


  1. As a summer vacatoner to Hatteras, my family would embrace the opportunity to buy from a temporary fish stand. We would still have to visit the local stores to purchase other foods and ingredients. I find it so hard to believe that the government can have a say whether a small business has the right to open or not. Wow, talk about moving backwards. Hopefully, Mr. Rawl will be able to open his seafood stand, many locals and tourists will be satisfied and local markets will remain unaffected.

  2. This makes no sense to me! I live on Hatteras and I welcome it! I sold at the farmers market this summer in Avon & you have no idea how many people asked about seafood & were astonished when told we weren't allowed to sell at a FARMERS MARKET! I would buy from him!
    And why aren't are commissioners brought to task??? How often are decisions made that we have no idea how they came about and local people are outraged, confused or upset. No explanation is ever given & no one raises any hell to MAKE them have to explain themselves! I've seen this happen so many times over the years & it's baffling. This is NOT how local govt. Is supposed to act! It's supposed to be for the good of the majority, not the good of a few...

  3. DCBOC is just now getting the first chance to act on a request to change text in a particular Zone to allow this practice. For a long time Health Deparment rules prohibited this practice, however, with the rules now changed, the applicant needs a text amendment to a zone. Yesterday, Monday, December 3, 2012 a Public Hearing was scheduled for January 22, 2013. I have covered Commissioners meetings for a long time, I see this moving forward to Public Hearing and then discussion and vote.

  4. Do you ever read Money and Markets, Martin Weiss or The Elliot Wave Review? Another great site you might like is