Mom N Pops, Inc. v. City of Charlotte

• Decision Date: 22 August 1997
• Docket Number: No. 3:97CV308-McK.,3:97CV308-McK.
• Citation: 979 F.Supp. 372
• Court: U.S. District Court — Western District of North Carolina
• Parties: MOM N POPS, INC., Plaintiff, v. The CITY OF CHARLOTTE, a North Carolina Municipal Corporation; Robert Brandon, Zoning Administrator; and David Barley, Zoning Enforcement Inspector, Defendants.

Page 372

979 F.Supp. 372

MOM N POPS, INC., Plaintiff, v. The CITY OF CHARLOTTE, a North Carolina Municipal Corporation; Robert Brandon, Zoning Administrator; and David Barley, Zoning Enforcement Inspector, Defendants.

No. 3:97CV308-McK.

United States District Court, W.D. North Carolina, Charlotte Division.

August 22, 1997.

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Miles S. Levine, Goodman, Carr, Nixon & Laughrun, Charlotte, NC, Thomas Loflin, Durham, NC, for Mom N Pops, Inc.

Robert Erwin Hagemann, Office of City Attorney, Charlotte, NC, for City of Charlotte, Robert Brandon.

Andrew S. O'Hara and Daniel G. Clodfelter, Moore and Van Allen, Charlotte, NC, for David Barley.

ORDER

McKNIGHT, United States Magistrate Judge.

This matter comes before the undersigned United States magistrate judge pursuant to 28 U.S.C. § 636(c) upon express consent of the parties, to consider Plaintiff's motion for preliminary injunction "preventing Defendants ... from enforcing any requirement of the City Code that Plaintiff obtain a city business license or zoning approval before opening at 5920 South Boulevard, Charlotte, North Carolina, and further from enforcing any of the provisions of § 12.522 of the City's Code, until such time as the Court rules on the claim for a declaratory judgment," and for an order "directing the Defendants to issue a business license to Plaintiff forthwith upon Plaintiff's tendering the required license fee." Complaint at 13 ¶¶ A, D. Oral argument was conducted on June 31, 1997. For the reasons set forth below, the undersigned concludes that Plaintiff's motion should be denied in its entirety. Pursuant to Rule 52(a), the court makes the following findings of fact and conclusions of law, which constitute the grounds of its action:

General Standards Governing the Granting or Denial of a Preliminary Injunction

In its recently published affirmance of the District Court's denial of a preliminary injunction enjoining enforcement of North Carolina's Act to Require Parental or Judicial Consent for an Unemancipated Minor's Abortion, the Fourth Circuit Court of Appeals summarized the standards for granting or denying a preliminary injunction:

"[A] preliminary injunction is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought." ... It is now axiomatic which standards should be applied in this Circuit when determining whether a party's motion for preliminary injunctive relief should be granted. The proper analysis is based on this Circuit's opinion in Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., [550 F.2d 189 (4th Cir.1977)] ... In that case, this Circuit adopted a hardship balancing test to be applied by the district courts when making such a determination.... A district court deciding whether to grant a preliminary injunction must consider the following four factors:

"(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied,

(2) the likelihood of harm to the defendant if the requested relief is granted,

(3) the likelihood that the plaintiff will succeed on the merits, and

(4) the public interest."

Direx Israel, Ltd. v. Breakthrough Medical Corporation, et al., 952 F.2d 802, 812 (4th Cir.1992) ... The plaintiff bears the burden of establishing that these factors favor granting the injunction....

Under this hardship balancing test, the first two factors regarding the likelihood of irreparable harm to the plaintiff if denied and of harm to the defendant if granted are the most important. ... Thus, the first task of the district court is to determine the harm that will be suffered by the plaintiff if no preliminary injunction is entered. The harm demonstrated by the plaintiff must be "`neither remote nor speculative, but actual and imminent.'" ... The district court must then balance this harm against the harm which would be suffered by the defendant if the preliminary injunction is granted. ...

Once this balancing is completed, the district court can then determine the degree to which the plaintiff must demonstrate a likelihood of success on the merits. In this regard, we have stated:

If, after balancing those two factors [i.e. irreparable harm to plaintiff against harm to the defendant], the balance `tips decidedly' in favor of the plaintiff, a preliminary injunction will be granted if `the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.' As the balance tips away from the plaintiff, a stronger showing on the merits is required.

... Thus, the balancing of hardships must be made before reaching the question of likelihood of success on the merits, because "[u]ntil that balance of harm has been made, the district judge cannot know how strong and substantial must be the plaintiff's showing of `likelihood of success.'" ... After the district court has balanced the hardships, determined the required showing of likelihood of success on the merits and analyzed that likelihood, the district court also analyzes the final factor, the public interest. Once this analysis is completed, the district court is in the proper position to make a final determination of whether a preliminary injunction should be entered.

Manning v. Hunt, 119 F.3d 254, 263-64 (4th Cir.1997) (case citations omitted).

FINDINGS OF FACT

The Parties

1. Plaintiff, Mom N Pops, Inc., is a corporation organized and existing under the laws of the State of North Carolina.

2. Defendant City of Charlotte, North Carolina, ("Charlotte") was and is a municipal corporation existing as such under the laws of the State of North Carolina, situated in the County of Mecklenburg.

3. Defendant Robert Brandon is and was at all material times the Zoning Administrator of Charlotte, the chief city official responsible for enforcement of Charlotte's Zoning Ordinances, and the direct supervisor of Defendant Barley.

4. Defendant David Barley is and was at all material times a zoning enforcement inspector for Charlotte, and also for Mecklenburg County, whose duties include assisting Defendant Brandon in enforcing Charlotte's zoning ordinances.

Relevant Privilege License and Zoning Statutes

5. Privilege License.

Charlotte's privilege license tax provisions are found in Chapter 13 of the Charlotte City Code. The privilege license tax is levied pursuant to N.C.Gen.Stat. § 160A-211 and Charlotte's Zoning Ordinance. Mecklenburg County administers the privilege license tax under an interlocal agreement. Charlotte's privilege license ordinance functions only to raise revenue, as is stated in its purpose section:

Sec. 13-16. Purpose.

(a) The purpose of this article is to raise funds for general municipal purposes. Therefore, it should be construed to require payment of the maximum tax permitted for the privilege of carrying on a business, trade, profession, calling or occupation within the corporate limits of the city.

(b) A license issued pursuant to this chapter reflects that the appropriate tax has been paid. Issuance of a license does not constitute regulatory approval and does not excuse a licensee from compliance with any other applicable ordinance, regulation, or statute. By issuing a license, the City of Charlotte has not determined that the recipient is in compliance with any applicable local, state or federal regulation or law or that the recipient is otherwise engaged in a legal activity or operating a business in a legal manner.

Ordinance Amending Chapter 13 of the Charlotte City Code Entitled "Licenses" (adopted March 24, 1997). Def. Exh. 17.

The underlying statutory authority for the privilege license tax is found in Chapter 160A of the North Carolina General Statutes:

Except as otherwise provided by law, a city shall have power to levy privilege license taxes on all trades, occupations, professions, businesses, and franchises carried on within the city.

N.C. Gen.Stat. § 160A-211.

A zoning approval must be obtained before a privilege license is issued:

Each new application or an established business moving to a new location must be approved as to zoning requirements by the city before such license shall be issued.

Charlotte City Code § 13-21(b).

6. Zoning provisions.

a. An amendment to the Charlotte zoning ordinance adopted by the Charlotte City Council on January 18, 1994, defined "adult establishment"; restricted "adult establishments" to B-2 (business), UMUD (Uptown Mixed Use), and I-1 and I-2 (industrial) zoning districts subject to certain restrictions; and specified the restrictions within the approved districts, including separation requirements from certain sensitive protected uses and prohibition of the location of more than one adult establishment within the same structure.

"Adult establishment" is therein defined as "[a]ny structure or use of land which meets the definition of adult establishment as outlined in North Carolina General Statute Sec. 14-202.10." N.C. Gen.Stat. § 14-202.10 is specifically incorporated as an appendix to the Zoning Ordinance.

"Adult bookstore," "adult mini motion picture theatre", "sexually oriented devices," "specified anatomical areas," and "specified sexual activities" are defined in N.C. Gen. Stat. § 14-202.10 as follows:

(1) "Adult bookstore" means a bookstore:

a. Which receives a majority of its gross income during any calendar month from the sale of publications (including books, magazines, and other periodicals) which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section; or

b. Having as a preponderance of its publications books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical...