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Can an HOA that has private roads set speed limits? How can they be enforced?

Ken Little
StarNews

Each homeowners association is a separate entity with its own bylaws and rules. Some have private security officers, set speed limits within property boundaries and may use calibrated radar that could result in a verbal warning or an HOA-assessed fine for drivers who go over the limit.

Law enforcement agencies such as the New Hanover County Sheriff’s Office do not enforce “any type of HOA-type restrictions,” said sheriff’s office Lt. Jerry Brewer.

Police enforce laws governing speed limits and other offenses on state-maintained roads, but not on HOA-maintained private roads, Brewer said.

“For an HOA to enter a speed limit in a neighborhood, it has to be a 100 percent private neighborhood,” Brewer said.

Actual crimes committed within the boundaries of an HOA can be investigated by a local law enforcement agency or the North Carolina Highway Patrol. But there are apparent exceptions to the rule.

A 2013 ruling by the North Carolina Court of Appeals states that security officers hired by HOAs can conduct traffic stops that would be unconstitutional if done by an actual police officer. The ruling stems from a man stopped in April 2012 by an armed security guard from a private company by the HOA for the Carleton Place townhomes near the University of North Carolina at Wilmington.

The security guard had received no training in the areas of estimating speed or encountering drunken drivers but was tasked with issuing speeding tickets to drivers going through the HOA community. The security officer saw the offender’s car in his rear-view and estimated that he was driving at 25 mph in a 15 mph zone. A traffic stop was conducted, and the driver was told to sit on the curb and police were called. A university police officer arrived but realized she lacked jurisdiction.

The security company employee wrote out an HOA ticket for speeding and a Wilmington Police Department detective who arrived on scene about 45 minutes after the stop confirmed signs of intoxication and took the driver into custody for driving under the influence of alcohol.

At trial, a New Hanover Superior Court judge found the security guard acted under state authority and was bound to the same reasonable suspicion standard that applies to police officers. The judge ruled the security guard’s “apparent lawful authority” demonstrated by flashing lights, a uniform, badge and a gun “intimidated” the defendant and made him feel compelled to wait until Wilmington police arrived.

The appellate court rejected that line of reasoning, arguing that “rental cops” are not bound by such restrictions.

“A traffic stop conducted entirely by a nonstate actor is not subject to reasonable suspicion because the Fourh Amendment does not apply,” a judge on the appellate panel wrote. The judges determined that the driver was not a “state actor” because he “was not encouraged or recruited to make such arrests by the local police department.”

The DUI charge held up in court.

The ruling shows that questions regarding law enforcement by private security companies retained by HOAs have some grey areas.

“It’s not quite a yes or no answer,” Brewer said.

User-contributed question by:
David B Allred

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