McKillop v. Onslow County

• Decision Date: 18 July 2000
• Docket Number: No. COA99-814.,COA99-814.
• Citation: 532 S.E.2d 594,139 NC App. 53
• Court: North Carolina Court of Appeals
• Parties: Kimberly McKILLOP, Plaintiff, v. ONSLOW COUNTY, Defendant.

532 S.E.2d 594

139 NC App. 53

Kimberly McKILLOP, Plaintiff, v. ONSLOW COUNTY, Defendant.

No. COA99-814.

Court of Appeals of North Carolina.

July 18, 2000.

Jeffrey S. Miller, Jacksonville, for plaintiff-appellant.

Shipman & Associates, L.L.P., by Gary K. Shipman and Carl W. Thurman III, Wilmington, for defendant-appellee.

HUNTER, Judge.

Kimberly McKillop ("plaintiff") appeals the 21 January 1999 Order of Abatement and Judgment of Civil Contempt entered by the trial court finding her in contempt of the Permanent Injunction issued by the same court on 3 July 1996, and ordering her to immediately comply with the 3 July 1996 order and allowing her to purge herself of contempt. We affirm.

The facts of this case are many and convoluted at best; however, we recite below only those pertinent to the appeal at hand. On or about 20 July 1994, agents of defendant-appellee Onslow County ("County") served notice on plaintiff that as of 21 September 1994, the county intended to enforce its "Ordinance to Regulate Adult Businesses and Sexually Oriented Businesses" ("Ordinance") in Onslow County, against plaintiff and her two businesses. Through a number of lawsuits and counter-lawsuits, plaintiff pursued having the Ordinance declared "invalid and unconstitutional" and seeking a preliminary injunction "enjoining and restraining the [County] from enforcing [the Ordinance]," and; the County pursued having the Ordinance declared valid and constitutional and praying the court "permanently enjoin the Plaintiff from operating [her businesses] Amy's Playhouse and Private Pleasures as nonconforming adult businesses and sexually oriented businesses."

On 3 July 1996 the trial court, finding the Ordinance valid, ordered plaintiff's complaint dismissed with prejudice. The trial court further ordered that:

The Plaintiff, her agents, servants, employees and other persons in active concert therewith, are enjoined and restrained from violating, and are ordered specifically to comply with, the provisions of the Ordinance,... and specifically:

a. shall not own and/or operate and/or manage any sexually oriented business, in any building located within one thousand (1,000) feet in any direction from a residence, a house of worship, a public school, or a public playground.

b. shall not exhibit any specified anatomical areas or engage in any specified sexually activities, as defined by the Ordinance, in any business located within one thousand (1,000) feet in any direction from a residence, a house of worship, a public school, or a public playground;

c. shall cease to operate Private Pleasures and Amy's Playhouse in a manner inconsistent with the Ordinance, and specifically, as a sexually oriented business.

However on appeal, the pertinent outcome of this Court's and our Supreme Court's rulings were that the County's Ordinance was "a valid exercise of the general police powers granted to the County by the General Assembly," thus the County had a right to enforce the Ordinance, requiring plaintiff to comply. Onslow County v. Moore, 129 N.C.App. 376, 382, 499 S.E.2d 780, 785 (1998). (For more information, see Onslow County v. Moore, 127 N.C.App. 546, 491 S.E.2d 670 (1997)

; Onslow County v. Moore, 347 N.C. 672, 500 S.E.2d 88 (1998).)

On 5 October 1998, the County moved for an order to show cause why plaintiff should not be held in civil contempt; which motion was allowed. That show cause hearing resulted in the County presenting affidavits in support of its position, while plaintiff refused to present evidence on the ground that she might incriminate herself in a pending criminal suit. As a result, on 21 January 1999 the trial court concluded that plaintiff was in violation of its 3 July 1996 order, finding in pertinent part that:

4. In September of 1998, the Plaintiff opened a business adjacent to the site of one of her previous businesses and posted a large sign indicating "Amy's Back." On September 24, 1998 ... a detective with the Onslow County Sheriff's Department [Officer John], entered a business identified on an interior door as Amy's Playhouse.... Upon entering ... he was greeted by a female who introduced herself as "Amy". Officer John recognized the female to be [plaintiff]....

5. ... [Plaintiff] completely removed her bra.... She [further] demonstrated some of the tip enhancements by "talking dirty", and touching her bare breasts and sliding her hand inside her panties and massaging her vaginal area....

6. ... She began rubbing her body against [Officer John] and ran her hands along his torso, arms, thighs and then started rubbing his genital area....

7. During the session, [plaintiff] exhibited a "Specified Anatomical Area" as defined under the Ordinance ..., namely her bare breasts.

8. On September 25, 1998, [Officer] John returned to Amy's Playhouse....

9. During the session, [plaintiff] again exhibited a "Specified Anatomical Area" as defined under the Ordinance ..., namely her bare breasts.

10. [Plaintiff's] violation of the Ordinance and this Court's Order has been both knowing and for personal gain. [Plaintiff] acknowledged to Detective W.L. Condry of the Onslow County Sheriff's Department that she was aware of the Order of this Court and that her actions violated the Ordinance, yet she chose to violate both the Order of this court and the Ordinance. After [plaintiff] was arrested on October 1, 1998, for violating the Ordinance, Detective Condry advised [plaintiff] of her rights and conducted an interview with her.

11. During the interview, [plaintiff] confirmed that she knew she was violating the Ordinance and the injunction entered against her by reopening her business. She further indicated that she saw penalties under the Ordinance as a cost of doing business and "liked paying taxes on $250,000.00 per year." [Plaintiff] also indicated that she intended to continue operating her business because of the money she could make and because she did not believe the Ordinance was constitutional.

...

13. [Plaintiff] has and continues to operate a sexually oriented business and adult business as defined under the Ordinance.

14. The Plaintiff knew, based upon her personally engaging in the act of exposing her bare breasts for a fee, that she was exhibiting "specified anatomical areas" in a sexually oriented or adult business located within 1,000 feet of a residence.

15. The Plaintiff has willfully failed to comply with the provisions of the Permanent Injunction, in that the Plaintiff has possessed the means to comply with the Permanent Injunction at all times since the entry of the Order.

16. The Plaintiff has shown no cause why she should not be adjudged in contempt of this Court for her willful failure to abide by the provisions of the Permanent Injunction, opting, instead, to invoke the Fifth Amendment privilege against self incrimination.

(Emphasis in original.) Thus the trial court held plaintiff in contempt.

Plaintiff has preserved ten assignments of error. However, due to our disposition of her appeal, we need address only three. We first address plaintiff's assigning error to the trial court's finding that she is in contempt. Plaintiff contends that there was no evidence that she was the owner, operator, or manager of the business in question, specifically, "Amy's Back." We find plaintiff's argument unpersuasive.

We begin by noting that plaintiff, in violation of N.C.R.App. P. 28(b)(5), cites almost no authority upon which she bases her arguments before this Court. That rule clearly states that "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned. [Furthermore,] [t]he body of the argument shall contain citations of the authorities upon which the appellant relies...." N.C.R.App.P. 28(b)(5) (1999) (emphasis added). Nonetheless, we choose to go forward and address plaintiff's appeal on its merits.

It is well established that this Court's

review of contempt proceedings is confined to whether there is competent evidence to support the [trial court's] findings of fact and whether those findings support the judgment. McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985); Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971)....

Koufman v. Koufman, 97 N.C.App. 227, 230, 388 S.E.2d 207, 209 (1990), reversed on other grounds, 330 N.C. 93, 408 S.E.2d 729 (1991)

. Furthermore,

[t]he statutes governing proceedings for civil contempt ... cases clearly assign the burden of proof to the party alleged to be [in contempt]. Civil contempt proceedings are initiated by a party interested in enforcing the [trial court's] order by filing a motion in the cause.... The opposing party must then show cause why [s]he should not be found in contempt.

Plott v. Plott, 74 N.C.App. 82, 85, 327 S.E.2d 273, 275 (1985).

The record before us reveals that in her original complaint, plaintiff admitted that she managed the two businesses, specifically, "Amy's Playhouse located at 3054 Wilmington Highway South and Private Pleasures located at 2247 Richlands Highway." In the court order imposing the permanent injunction upon plaintiff, the court specifically found that both of her establishments were in violation of the Ordinance. Plaintiff does not dispute this finding, except to say that the mere "exhibition of `specified anatomical areas in a sexually oriented or adult business located within 1,000 feet of a residence' in itself is not a violation of the Ordinance" (a contention we will address below). Neither does plaintiff dispute the finding that she "and K. Hope, Inc., a corporation owned and/or controlled by [plaintiff], which corporation purportedly is the actual `owner' of these businesses, are in privity with one another."

The County's witness, Detective Sergeant W.L. Condry ("Det. Condry"), testified that although plaintiff shut down her two above-named businesses, about a year later she reopened the business under the guise of ...