Pitt County v. Dejavue, Inc.

• Decision Date: 04 September 2007
• Docket Number: No. COA06-838.,COA06-838.
• Court: North Carolina Court of Appeals
• Parties: PITT COUNTY, Plaintiff, v. DEJAVUE, INC., Dejavue II, Charles Lee Cummings, Jr., Misty's, Marie Bradshaw Hudson, Rex Hudson, Silver Bullet Dolls, Inc., Matthew Earl Faulkner, Linda Faulkner, Dora Crawford Faulkner, Defendants.

650 S.E.2d 12

PITT COUNTY, Plaintiff, v. DEJAVUE, INC., Dejavue II, Charles Lee Cummings, Jr., Misty's, Marie Bradshaw Hudson, Rex Hudson, Silver Bullet Dolls, Inc., Matthew Earl Faulkner, Linda Faulkner, Dora Crawford Faulkner, Defendants.

No. COA06-838.

Court of Appeals of North Carolina.

September 4, 2007.

Appeal by defendants from order entered on or about 21 December 2005 by Judge W. Russell Duke, Jr. in Superior Court, Pitt County. Heard in the Court of Appeals 19 February 2007.

Pitt County Legal Department, by Janis Gallagher, Greenville, for plaintiff-appellee.

The Robinson Law Firm, P.A., by Leslie S. Robinson, Greenville, for defendant-appellants Deja Vue, Inc., Deja Vue, II, Charles Lee Cummings, Jr., Silver Bullet Dolls, Inc., Matthew Earl Faulkner, Linda Faulkner and Dora Crawford Faulkner.

David W. Silver, Greenville, for defendants Misty's, Rex Hudson and Marie Hudson.

STROUD, Judge.

This is an action for declaratory and injunctive relief filed in Superior Court, Pitt County, concerning the interpretation and enforcement of a Pitt County ordinance regulating sexually oriented businesses. Plaintiff Pitt County sought a declaratory ruling that defendants unlawfully operated unlicensed sexually oriented businesses in locations prohibited by the county ordinance, as well as temporary and permanent injunctions enjoining defendants from conducting sexually oriented business at those locations.

The parties stipulated that defendants Deja Vue, Inc., Deja Vue II,¹ Misty's, and Silver Bullet Dolls, Inc. are sexually oriented businesses located in Pitt County North Carolina.² Defendant Mark Saied operates Deja Vue, Inc. and defendant Charles Lee Cummings, Jr. operates Deja Vue, II. Defendant Marie Bradshaw Hudson owns Misty's and defendant Rex Hudson operates Misty's. Defendants Matthew Earl Faulkner and Linda Faulkner operate Silver Bullet Dolls, Inc. in a building owned by defendant Dora Crawford Faulkner. For purposes of this opinion, we refer to defendants Deja Vue, Inc., Deja Vue II, Mark Saied, and Charles Lee Cummings, Jr. collectively as "Deja Vue." We refer to defendants Misty's, Marie Bradshaw Hudson, and Rex Hudson collectively as "Misty's" and defendants Silver Bullet Dolls, Inc., Earl Faulkner, Linda Faulkner, and Dora Crawford Faulkner collectively as "Silver Bullet."

Defendant Silver Bullet has been operating in Pitt County for more than twenty years. Defendant Misty's and defendant Deja Vue, Inc. began operating in Pitt County before 7 October 2002;³ however, defendant Deja Vue II began operating after that date. Defendants have not been charged with prostitution, crimes against nature, or any violation of North Carolina obscenity law. Pitt County alleges only that defendants may not operate sexually oriented businesses in their current locations or without licenses as required by Pitt County Code.

I. Background

On 2 October 2002, the Pitt County Board of Commissioners adopted an ordinance regulating sexually oriented businesses. The ordinance was prefaced, in part, by the following preamble:

WHEREAS, the Board of Commissioners recognizes that important and substantial governmental interests provide a constitutional basis for reasonable regulation of the time, place and manner under which adult and sexually oriented businesses operate; and

WHEREAS, for the purpose of preventing harmful secondary impacts such as neighborhood blight, increases in crime and decreases in property value, this article is adopted by the Board of Commissioners to regulate adult and sexually oriented businesses, as hereby defined, located in the County . . .; and

WHEREAS, the board of Commissioners has determined that persons seeking to operate sexually oriented businesses shall be required to observe specific location requirements before they commence business.

Pitt Co., N.C., Code Preamble (2003) (emphasis added).

In section 1.1 of the ordinance, the Board of Commissioners stated its purpose, in part, as follows:

Pitt County is committed to protecting the general welfare of the County through the enforcement of laws prohibiting obscenity, indecency, and sexual offenses. It seeks to reduce and eliminate the deleterious effects of sexually oriented businesses while preserving constitutionally protected forms of expression. Pitt County finds that sexually oriented businesses in certain locations contribute to neighborhood deterioration and blight through an increase in crime and diminution of property values, among other adverse consequences, and finds that such effects are contrary to the general welfare of the County.

Pitt Co., N.C., Code 1.1 (2003)(emphasis added).

To those ends, the ordinance provided that "[i]t is unlawful for any person to operate a sexually oriented business without a valid sexually oriented business privilege⁴ license approved by the Code Enforcement Officer pursuant to this article." Pitt Co., N.C., Code Chapter VIII, section 4.1 (2003). "Every sexually oriented business that is granted a license (new or renewal) shall pay to Pitt County an annual nonrefundable privilege license fee of $1,000.00⁵ upon license issuance or renewal." Pitt Co., N.C., Code Chapter VIII, section 7.1 (2003).

The ordinance also contained two provisions, entitled "Overconcentration" and "Residential Proximity," regulating the places in which sexually oriented businesses could locate.

8.1. Overconcentration [sic]. No more than one (1) sexually oriented business shall be located in any one thousand three hundred and twenty (1320) foot radius (determined by a straight line measured from building to building and not by street distance). This regulation is necessary to prevent an overconcentration [sic] of sexually oriented businesses and the creation of a de facto downgrading or blighting of surrounding neighborhoods.

8.2. Residential Proximity.

8.2.(a) No sexually oriented business shall be located within a one thousand three hundred twenty (1320) foot radius (determined by a straight line measured building to building and not by street distance) of any place of worship, a school (public or private), specialty school, day-care facility, or any residential zoning districts⁶ or residential properties or a lot or parcel of land on which a public playground, public swimming pool, or public park is located. Special regulation of these establishments is necessary to insure [sic] that deleterious secondary effects which can reasonably be expected to result from the inappropriate location or concentration of sexually oriented businesses and these adverse effects will not contribute to a downgrading or blighting of surrounding residential districts or certain other districts which permit residential uses.

Pitt Co., N.C., Code Chapter VIII, sections 8.1 & 8.2 (2003) (emphasis added). Defendants do not dispute that the restrictions contained in sections 8.1 and 8.2(a) may properly be classified as "time, place, and manner" restrictions for the purpose of First Amendment review. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 106 S.Ct. 925, 89 L.Ed.2d 29, 37 (1986) (stating an ordinance regulating sexually oriented businesses that circumscribes their choice as to location without banning the speech expressed therein altogether is a time, place, manner restriction).

With respect to pre-existing sexually oriented businesses, the ordinance provided that: "Any sexually oriented business lawfully operating on the date that this ordinance becomes effective, that is in violation of this article shall be deemed a nonconforming use." Pitt Co., N.C., Code Chapter VIII, section 9.1 (2003). However, the ordinance also granted a one year grace period, commonly known as the "amortization period," which provided that "[a]ny use which is determined to be nonconforming by application of the provisions of this section shall be permitted to continue for a period not to exceed one year from the date this ordinance becomes effective." Pitt Co., N.C., Code Chapter VIII, section 9.2 (2003). "Such nonconforming uses shall not be increased, enlarged, extended or altered, except that the use may be changed to a conforming use." Pitt Co., N.C., Code Chapter VIII, section 9.3 (2003). This ordinance became effective on 7 October 2002 [hereinafter 2002 Ordinance]. Pitt Co., N.C., Code Chapter VIII, section 14 (2003).

On 2 February 2004, the Pitt County Board of Commissioners adopted an ordinance entitled "Amended Ordinance Regulating Adult Establishments Sexually Oriented Businesses" [Amended Ordinance].⁷ (emphasis added). The Amended Ordinance contained technical changes to the 2002 Ordinance most of which are not relevant to the case sub judice. These changes were made to promote consistency with a separate county-wide zoning ordinance. Except as noted by footnotes ante, provisions of the 2002 Ordinance quoted herein are identical to the Amended Ordinance.

For purposes of this appeal, we consider section 8-187 of the Amended Ordinance, which provides:

This amended Ordinance shall be in full force and effect on and after February 2, 2004 and shall replace the Ordinance which first became effective on October 7, 2002. All enforcement action shall be based upon the effective date of October 7, 2002.

Pitt Co., N.C., Code Chapter VII, section 8-187 (2004) (emphasis added).

Plaintiff and defendants stipulated that Pitt County adopted the Amended Ordinance pursuant to its police powers. See N.C. Gen. Stat. § 153A-121 (2005) (defining a county's "[g]eneral ordinance making power"). Defendants Misty's applied for a sexually oriented business license as required by the Amended Ordinance, but the application was denied because the Misty's sexually oriented business is located within 1,320 feet of a residential dwelling, as are the businesses of all defendants in this matter. The remaining defendants have not applied for sexually oriented business licenses under either ordinance.

Plaintiff Pitt County sought a declaratory ruling...