K. Hope, Inc. v. Onslow County, 4:94-CV-130-BO3
Citation | 911 F. Supp. 948 |
Decision Date | 09 November 1995 |
Docket Number | 4:94-CV-133-BO2 and 4:94-CV-132-BO2.,No. 4:94-CV-130-BO3,4:94-CV-130-BO3 |
Court | U.S. District Court — Eastern District of North Carolina |
Parties | K. HOPE, INC., Plaintiff, v. ONSLOW COUNTY, Defendant. TREANTS ENTERPRISES, Plaintiff, v. ONSLOW COUNTY, Defendant. Donald A. MERCER, Sr. t/a Pleasure Palace, Plaintiff, v. ONSLOW COUNTY, Defendant. |
COPYRIGHT MATERIAL OMITTED
Jeffrey S. Miller, Jacksonville, NC, and Keith E. Fountain, Jacksonville, NC, for Plaintiffs.
Gary K. Shipman and Joel R. Rhine, Shipman & Lea, Wilmington, NC, for Defendant.
North Carolina's Onslow County has long tried to ban, regulate, or otherwise control its sex trade. The Supreme Court of North Carolina struck down one such effort, aimed at nude dancing, as pre-empted by state law. State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972). In a case brought by one of the plaintiffs in the instant action, another Onslow County attempt to bar "companionship businesses" was rejected by the state's high court as unconstitutionally vague and overbroad. Treants Enters., Inc. v. Onslow County, 320 N.C. 776, 360 S.E.2d 783 (1987) ("Treants I"). Two years later, the same plaintiff successfully challenged yet another Onslow County ordinance restricting "escort" services, again on overbreadth grounds. Treants Enters., Inc. v. Onslow County, 94 N.C.App. 453, 380 S.E.2d 602 (1989) ("Treants II").
On September 21, 1992, the Board of Commissioners of Onslow County, North Carolina, adopted an "Ordinance to Regulate Adult Businesses and Sexually Oriented Businesses in Onslow County, NC," codified at Onslow County Code, § 8-201 et seq. The ordinance defines certain land uses as "adult businesses"1 and "sexually oriented businesses,"2 and then decrees that any such business located within a thousand feet in any direction of a residence, dwelling, house of worship, public school, day care center, public playground, public swimming pool, public park, or other adult or sexually oriented businesses shall be deemed a "non-conforming use" as of September 21, 1994.
On September 9, 1994, plaintiffs K. Hope and Treants Enterprises, owner/operators of several such "non-conforming uses," filed identical complaints in Onslow County Superior Court seeking injunctive relief for violations of state and federal law. A similar complaint was filed five days later by Donald Mercer, d/b/a Pleasure Palace. The complaints allege the ordinance to be void as an ultra vires act of unplanned zoning, preempted by state law, in violation of the North Carolina Constitution, and unreasonable as to the amortization period granted existing nonconforming uses. The complaints further allege the ordinance is an unreasonable and overbroad restriction upon freedom of speech as guaranteed by the First Amendment to the United States Constitution, as well as a violation of the plaintiffs' "freedom of property."
On September 15, 1994, defendant Onslow County removed the Hope and Treants actions to this Court pursuant to 28 U.S.C. § 1446(d). Original jurisdiction in this Court was claimed to be based upon 28 U.S.C. § 1331. On September 19, 1994, the Mercer case was likewise removed. The County then answered and counterclaimed for injunctive relief permitting it to enforce the ordinance, a move of no legal significance.
On October 23, 1994, this Court held a hearing on the plaintiffs' motion for a preliminary injunction. On November 17, the Court found that these three cases all arise out of the same set of operative facts and consolidated them for ruling, which was converted into a determination of the plaintiffs' claim for permanent injunction with the understanding that any order by this Court would be treated by the parties as a final order. The parties were granted leave to supplement the record and further brief the issues, and an additional hearing was held on June 20, 1995.
A third hearing was held October 2, 1995, in an attempt to sort out defendant's conflicting positions on some of the complex issues presented by this case.
Plaintiff's Constitutional claims were originally filed in state court contingent upon enforcement of the ordinance. Oct. '94 T., p. 5. On removal, the questions were presented by defendant as ripe constitutional questions to support jurisdiction, and were reasserted as active, present claims by plaintiff. Id., at 21-22. Jurisdiction is thus conferred by 28 U.S.C. §§ 1331, 1367.
Many of the issues which the County asked this Court to resolve by removing the action from state court concern fundamental issues of state law. Such questions are best left to the state's courts, which have the power to decide them authoritatively. Since it was entirely foreseeable that these issues would be raised as defenses to prosecution under the ordinance in the state courts, this case was an extremely poor candidate for removal.
"The power conferred upon the municipal body is presumed to be in subordination to a public law regulating the same matter for the entire state, unless a clear intent to the contrary is manifest." Tenore, supra, 280 N.C. at 246, 185 S.E.2d 644, quoting State v. Langston, 88 N.C. 692 (1883). "Where the Legislature has enacted a statute making an act a criminal offense, a city may not adopt an ordinance dealing with the same conduct." Tenore, 280 N.C. at 245, 185 S.E.2d 644, quoting State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966).
Plaintiffs maintain that the County's ordinance is pre-empted by N.C.Gen.Stat. §§ 14-190.9 and 14-202.11, "Indecent Exposure" and "Restrictions as to Adult Establishments," respectively.
Defendant asks the Court not to consider the pre-emption arguments because these were not specifically raised in the complaints, and because the pre-emption argument was not raised in the plaintiffs' reply to defendant's counterclaim.
Although the complaints did not specifically mention pre-emption, they did plead the ordinance was violative of North Carolina law and beyond the County's powers. This suffices to raise the specter of state law preemption claims. The plaintiff's Memorandum in Support of a Preliminary Injunction does contain an argument that N.C.Gen.Stat. § 14-190.9 pre-empts the ordinance.
The pre-emption argument relating to N.C.Gen.Stat. § 14-202.11 may not have been raised until the supplemental briefing, but it does reasonably relate to an issue raised originally such that it would come within the sphere of argument foreseeable to the defendant. Moreover, the argument that N.C.Gen.Stat. § 14-202.11 is pre-emptive centers almost completely upon the case of Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir., 1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980), a case relied on heavily by defendant in its original briefing.
In State v. Tenore, supra, a leading case on the issue of pre-emption, the Supreme Court of North Carolina struck down an Onslow County ordinance targeting much of the same behavior purportedly controlled by the ordinance here at issue based on the pre-emptive effect of N.C.Gen.Stat. § 14-190.9.
The Court has therefore considered the pre-emption argument.
In passing the ordinance, the defendant relied upon the authority granted by N.C.Gen.Stat. § 153A-135, which permits counties to "regulate places of amusement and entertainment, and ... regulate, restrict, or prohibit the operation of pool and billiard halls, dance halls, carnivals, circuses, or itinerant shows or exhibitions of any kind." As discussed infra, this grant of the police power authorizes only the regulation of business operations, not land use. Compare N.C.Gen. Stat.Ch. 153A, art. 6, "Delegation and Exercise of the General Police Power," with N.C.Gen.Stat.Ch. 153A, art. 18, part 3, "Zoning." Had the ordinance only been of a police power nature — had it addressed itself to the conduct occurring inside these businesses — it would clearly be pre-empted by North Carolina's public indecency act, N.C.Gen.Stat. § 14-190.9, under the rule of Tenore, supra.
The state's pre-emptive regulation of an activity prohibits cumulative or inconsistent regulation of the same activity by a local government, but it does not prevent local governments from confining such operations to areas where they will not be harmful. Thus, Onslow County's definition of zoned land uses by their state-regulated conduct — the exhibition of "specified anatomical areas" — does not fall within the pre-emptive field of N.C.Gen.Stat. § 14-190.9.
North Carolina's legislature has also enacted N.C.Gen.Stat. ch. 14, art. 26A, §§ 202.10-202.12, "Adult Establishments." N.C.Gen.Stat. § 14-202.11, "Restrictions as to adult establishments," reads in pertinent part:
No person shall permit any building, premises, structure, or other facility that contains any adult establishment to contain any other kind of adult establishment. No person shall permit any building, premises, structure, or other facility in which sexually oriented devices are sold, distributed, exhibited, or contained to contain any adult establishment.
N.C.Gen.Stat. § 14-202.12 establishes that first-time violations of N.C.Gen.Stat. § 14-202.11 constitute Class 3 misdemeanors, while each subsequent violation constitutes a Class 2 misdemeanor. Criminal guilt is ascribed to the owners, managers, and agents in charge of non-conforming adult establishments, as well as to owners of property upon which such establishments are located.
The Fourth Circuit has upheld article 26A's constitutionality by tracking the landmark secondary effect adult zoning decision in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), noting that "the statute's essential regulation is of location." Hart Book, 612 F.2d at 826. At first...
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