tag: North Carolina Land Use Litigator: Proposed "Sagging Pants" Ordinance Likely to Face Legal Obstacles

Tuesday, October 19, 2010, 2:19 PM

Proposed "Sagging Pants" Ordinance Likely to Face Legal Obstacles


The Mayor of East Laurinburg--a Town in Scotland County described by one commissioner as "11 blocks long and three blocks wide"--has proposed an ordinance that would, um, extend the Town's indecent exposure laws to, um (again), cover "sagging pants." According to reports, the proposed ordinance would take a, um (for the third time), belts and suspenders approach to decency and prohibit the tops of pants and skirts from falling "3 inches or more below the waistline." From the Mayor's perspective, broadcast by way of a public notice, "You can't go anywhere and not be offended by some individual with his pants down below his buttocks."

The North Carolina Chapter of the American Civil Liberties Union has taken notice, indicating that the ordinance could get into "dicey legal territory" including potentially running afoul of the First Amendment as well as prohibitions against "racial profiling." Of note, we understand that similar "saggy pants" laws have run into significant legal obstacles in other jurisdictions. In 2007, Georgia's ACLU Chapter challenged a proposed state "sagging pants" law, claiming the law could lead to racial profiling. And in 2008, a Florida court struck down a similar municipal ordinance as unconstitutional.

The proposed ordinance, which would likely carry a fine but no jail time, is scheduled for consideration before the Town Board of Commissioners on November 9.

***UPDATE Nov. 16, 2010 UPDATE***
Prompted by an October 26, 2010 letter from the ACLU, the Town Board, ahem, dropped the proposed ordinance from its November 9 agenda prompted by claims that the proposed ordinance is "likely an unconstitutional abridgement of freedom of expression" as well as "vague and impractical." Perserverence, though, will keep pants aloft. The Board currently plans, after some good legal consideration, to ad-"dress"--see what I did there?--the issue at its December meeting. We'll continue to follow.

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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