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The Misadventures of running a small home business in Chatham County

Posted Monday, August 9, 2010

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Pittsboro, NC - Things are not easy for small home-based businesses in Chatham County as seen from the following excerpt from the minutes of the July 19 County Commissioners board meeting.

Home occupation business

Chair Kost explained that there is an issue that needs to be addressed dealing with a home occupation business and its requirements.

The County Manager explained that there has been a question regarding a home occupation workshop and what needs to be done to apply not only as a zoning matter but also with the building code which are two different issues.

Angela Birchett, Land Use Administrator II, explained that she received Ms. Welch’s application for a home occupation a few months ago. In the past, when someone filed for a home occupation permit, if it met the guidelines and Zoning Ordinance, the County collected the $100.00 fee and sent them on their way. The Fire Marshal and Building Inspections were finding out about them and were asking Central Permitting why they didn’t know about the new businesses; that issues were surfacing regarding liability and/or safety issues; that they needed to be “on the same page” and able to communicate with each other; that they agreed that when someone applied for a home occupation permit, they would issue it before they spoke with Building Inspections, the Fire Marshal’s Office, and Environmental Health to see if there were any regulations that they were going to require that could or would meet in order to fulfill their request for their home occupation; that they didn’t think it was fair to keep taking their money and them be turned down by some other regulation and have a worthless permit; that Ms. Welch met zoning regulations which was never a problem; that they were never the holdup for this application; that trying to communicate with other divisions within the department caused the delay and the confusion happened; and that she doesn’t know if Ms. Welch can or will meet the regulations that will be required of her.

Chair Kost stated that after having read the Zoning Ordinance, she understands that she meets the requirements for home occupations. She asked if the issue becomes something that she is doing that triggers the building code.

Danny Paschal, Code Enforcement Director, reviewed pages of the North Carolina Accessibility Code and the Americans with Disabilities (ADA) requirements. He stated that when he received a complaint, he called Ms. Welch, she came down, and they discussed the requirements; that the questions posed at that time were: 1) What is the business; 2) What are your plans for it? 3) What exactly do you do? He stated that they based the code requirements upon the answers that were given. He stated that Ms. Welch informed him that she was teaching metal work to some students, that she made the metal work, and that she was advertising at the time. At that point, he stated that they looked at accessibility since it is, by definition, a business.

The County Manager clarified a statement by asking if, when she was advertising, if she was promoting the students and sale of products that she was making. Mr. Paschal stated that he did not have any way of knowing as he did not see the advertisement and that he was told that it was there.

The County Manager asked Ms. Birchett what the application said about it. Ms. Birchett responded that the application says that the type of occupation to be operated from the residence is jewelry instruction-hand tools; that her ad advertised jewelry classes, weekly taught on Wednesday and Thursday mornings and evenings, learn the construction techniques of cutting, forming, connecting, and finishing of bronze, copper, and silver…no experience necessary…all tools furnished…classes start every month….4 classes for $75,
9:30 to 12:00 noon and 6:30 to 9:00 PM.

Chair Kost asked if that included any selling and the web site says that selling is done as part of the arts tour. She stated that she knows that people tutor in their homes; that 2-3 students come to their homes; and that there are piano teachers who bring students into their homes. She asked what makes what Ms. Welch is doing any different than a piano teacher or tutor.

Mr. Paschal explained that under certain circumstances, no different. He stated that he has to use leeway in dealing with it; that he is not there to put someone out of business; that wants to work from their home; that if it’s a small business and there were no customers coming in, there are certain things that would not be required; that if it’s a teacher that is teaching and it is an occasional thing and there is not a piano class out front and they are not advertising, he would not go anywhere with that either.

Chair Kost stated that that was still doesn’t answer her question, “How is this different? Why would you teach a piano teacher who has two students who are practicing a duet versus bringing two students in to teach some jewelry?” She stated that she is having a hard time understanding the distinction.

Mr. Paschal stated that the piano teacher is in her home and that is how they define home occupations.

Chair Kost asked if this was not in Ms. Welch’s home. Mr. Paschal replied that he was told it was in a detached building, storage within a garage room area and that he has never seen the building.

Chair Kost stated that she was struggling with this and asked how other jurisdictions handled piano teachers, tutors, and people who come to your house for instruction, whether it is in the garage or in the music room, shed, etc. Mr. Paschal replied that they handle it the same way Chatham does on a case-by-case basis, depending on what someone is doing. He stated that when it is advertised as a business, when you’re bringing in customers, if you reach a point that you hire staff…those different things can make the requirement for this.

Commissioner Lucier asked how many students Ms. Welch had. Ms. Welch replied, generally not more than 2-3 per session, and there are four sessions per week.
Chair Kost asked if there was anything that the County Attorney could add. Commissioner Thompson stated that he thinks the problem is that when there are
clear lines delineated where decisions are made from one level to the next.

Jenny Williams, Central Permitting Director, stated that a difference between piano teachers and tutors is that typically student children are dropped off by their parents; that Ms. Welch provides parking; and that is an issue with regard to ADA.

Chair Kost stated that she didn’t know if that kind of generalization could be made when they are trying to apply a standard.

Commissioner Lucier asked if Ms. Welch had talked with the Fire Marshal. Ms. Welch replied, yes; that the Fire Marshal is about three steps back from getting through this; that she has talked with him and that everything he has said sounded reasonable; and that he told her when she was ready that he would be more than happy to come out.

Commissioner Lucier stated that it sounded like having a safe environment was a legitimate request that it be inspected for safety issues especially if there is metal work involved. He stated that he, too, was having trouble discerning this from other home occupations other than the Fire Marshal issues.

Ms. Williams stated that the Fire Marshal does inspections only on businesses, not residential.

Considerable discussion ensued.

Jeffrey Starkweather stated that the big factor here is the change of occupancy; that this is not so much driven by state building code but by the federal law.

Commissioner Thompson and Chair Kost stated that they would like to know what the options are for Ms. Welch and the options for the Board of Commissioners.

Ms. Welch stated that the issue was not whether she could make her building accessible to someone who needs it; that she is perfectly willing to do that; however, when she called ADA, Southeast Region, Atlanta, and explained the circumstance that she would have to build a bathroom and she was told that how the ADA works in this instance, that if she has a bathroom in the studio, it needs to accessible which she finds to be a reasonable request; that she supports people being able to take her classes; that she is a veteran and has been trying to get veterans to take her classes; that she is not a commercial establishment; that she made $4,000 last year at this venture; that she teaches her craft to people because she loves what she does; that her students love what she does; that she advertised on the ChatList for students; that the Zoning Officer came to her residence with the printed ad and closed down her business; that somehow it didn’t strike her as being fair; that she read what it said that if you do three things, you have to have a permit: 1) Have employees, 2) If you’re a retail establishment, 3) If you have a sign; that she doesn’t have any of those; that she thought she was alright; that she had been told that she had to do this no matter what it says, then she might have considered it and said that she would look to see what she had to do; that was not the case; that she did look at it and deem her business suitable; that she is agreeable to the Fire Marshal’s inspection; that she doesn’t want to be considered as a commercial establishment; that she is in a residential zone; that she has plenty of places to park; and that she doesn’t want to be zoned commercial.

Commissioner Lucier said that several years ago, the Board reviewed the home occupation issue and made some changes in the ordinance to make home occupation.

Chair Kost stated that under the Zoning Ordinance, they are ok.

Further discussion ensued regarding “change of use”.

Jep Rose, County Attorney, recommended referring the issue to Mr. Starkweather on a voluntary basis. Mr. Starkweather declined.

Mr. Rose stated that this is a specialized area and that the County has people who are trained in it and that there may be some middle ground on which to resolve the issue. He asked what specifically Ms. Welch was objecting to or if she knew all the requirements.

Ms. Welch replied that it was the bathroom issue.

Chair Kost asked if there was some way they could allow Ms. Welch to continue her business while they study and look at the options.

Mr. Starkweather reviewed the rules applying to the toilet room. Ms. Williams stated that that applied to “unisex toilets/facilities”.

Mr. Paschal stated that as far as the building code is concerned, they commonly give more time for people to comply with parts of it; that it isn’t something that they necessarily have to do immediately for them; that in most cases, they are not going to be able to do so anyway due to the price.

Mr. Rose asked how far the garage is located from the house where there is a bathroom. Ms. Welch replied, 50 feet, but that the bathrooms in the house are not handicapped assessable.

Commissioner Lucier asked if he was hearing that Ms. Welch could continue to have her students come in. Mr. Paschal stated that as far as they were concerned, they were not shutting her down.

The County Manager reiterated that the only outstanding issue is the bathroom and ADA compliance. Mr. Pascal replied, yes.

Ms. Birchett stated that to her knowledge, it has not been approved by Environmental Health.

The County Manager stated that according to Andy Siegner, Ms. Welch had not spoken with him regarding the issue.

Commissioner Lucier asked the purpose of talking with Environmental Health. Ms. Birchett replied that it was the septic tank capacity has a lot to do with it as it has a residential septic system and is only approved for a certain size.

Chair Kost stated that she understands that one can have a home occupation with more than four employees.

Commissioner Vanderbeck stated that it would be good to have an application sheet for home occupations showing requirements.

Chair Kost stated that on a temporary basis, Ms. Welch can continue doing what she has been doing and that the Board will find out what she has to do to meet the code. She stated that it was federal and state regulations, not the County, that was triggering this.

Ms. Birchett asked that the Board define “temporary”. Chair Kost stated that it was until a solution is reached.

Commissioner Cross stated that he thought she was referring to a staff solution. Commissioner Lucier stated that he felt is could be resolved within three months. Chair Kost stated that as part of trying to find a solution, if there is anything the Board can do locally with the County’s ordinances to allow this to happen and that she would like to know how other jurisdictions how this as it can’t be unique to Chatham County.

Ms. Birchett said that one thing they did in the last revision of the Zoning Ordinance was to review the neighborhood occupations and the rural home occupations; that because they were such a problem and there were so many violations, they added four things that you have to meet in order to not have to have a home occupation permit: 1) No non-resident employees; 2) No signs; 3) No on-site retail sales; 4) No visits from the general public; and that these came about because they were having issues with the fire code and Environmental Health.

Commissioner Cross asked if the scheduled student was the same thing as the general public, stating that it seems as though it is not.

Commissioner Lucier stated that he felt Commissioner Cross’s point was a good one as the general public refers to those that are just driving by and want to come in because they think something is going on there and that they probably want to clarify that.

Ms. Birchett stated that if Ms. Welch would bring them $100.00, that her department would issue her a permit.

Commissioner Lucier asked if the Board could give directive to the Fire Marshal to look at home occupations, too, if asked.

The County Manager stated that the Fire Marshal is always willing to go out and he also gives classes on fire prevention.

By consensus, the Board agreed.

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The Misadventures of running a small home business in Chatham County

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