THOUGHTS of THE TIMES
Is it a crime to open Chinese restaurant?
Jeonju Hanok Village is one of the famous tourist attractions in Korea, where foreigners can experience the beauty of traditional Korean-style houses, also known as “Hanok.” In a way to maintain its cultural identity, Jeonju city government has implemented so-called a District Unit Plan, a type of zoning ordinance which prohibits opening non-Korean style restaurants, including Chinese and Japanese.
Prior to the effective date of the zoning ordinance, there were known to be only two non-Korean style restaurants in operation: a Japanese restaurant and a western restaurant. The legal dispute arose when a new tenant changed the former to a Chinese restaurant. Together with corrective order to stop illegal classification change, the local government brought a criminal action against the new tenant under National Land Planning and Utilization Act (NLPUA).
Recently, Jeonju District Court ruled in favor of the new tenant on two main grounds. First, the court held that there was a violation of administrative procedure such as failure to provide advance notice to the tenant. Second, mere change to a Chinese restaurant does not constitute illegal classification change which is prohibited by NLPUA. The local government appealed to Gwangju High Court on the matter.
The most surprising aspect of the news is that the tenant has been charged with a felony count under NLPUA and possibly subject to imprisonment up to two years.
In contract, U.S. jurisdictions take a different approach in two aspects. First, felony prosecution is very rare for zoning violation. Zoning offenses are generally deemed misdemeanors, which have a maximum term of no more than one year. In New York, most zoning offenses are treated as violations which are punishable by imprisonment up to 15 days. In California, they are generally treated as infractions which shall be punishable by fine only.
Second, stronger enforcement mechanisms are already in force. In New York, peace officer can issue an appearance ticket which is a written notice to direct a designated person to appear in a local criminal court at a designated time. Failure to do so may lead to issuance of an arrest warrant. In California, a violator can be charged with a separate offense for each and every day even prior to conviction. Fine will be doubled for a second conviction or any subsequent conviction within a period of 12 months since California has implemented mandatory sentencing policy for such repeat offenders.
In my opinion, there should some legislative changes for the current regulatory framework on District Unit Plan policy. Reducing a felony charge to a misdemeanor is a good start. Perhaps, introduction of a more balanced and enforceable mechanism, such as a separate offense provision in California, is desirable.