Southern Blasting Services v. Wilkes County
| Decision Date | 10 August 2001 |
| Docket Number | No. 5:98CV102-V.,5:98CV102-V. |
| Citation | 162 F.Supp.2d 455 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | SOUTHERN BLASTING SERVICES, INC. and Piedmont Drilling & Blasting, Inc., Plaintiffs, v. WILKES COUNTY, North Carolina, a body politic, and Kevin D. Bounds, Wilkes County Fire Marshall, Defendants. |
Douglas G. Eisele, Eisele, Ashburn, Greene & Chapman, P.A., Statesville, NC, for plaintiffs.
Anthony R. Triplett, Vannoy, Colvard, Triplett & Vannoy, PLLC, North Wilkesboro, NC, for defendants.
THIS MATTER is before the Court on cross motions for summary judgment Plaintiffs' "Motion for Partial Summary Judgment" filed June 28, 1999 [document 17] and Defendants' "Motion for Summary Judgment" filed December 1, 1999 [document 30].
Pursuant to 23 U.S.C. 636(b)(1)(B) and the standing order of designation, this Court referred the aforesaid motions to United States Magistrate Judge Carl Horn for recommended disposition. In a Memorandum and Recommendation filed February 11, 2000, Magistrate Judge Horn recommended that Plaintiffs' "Motion for Partial Summary Judgment" be denied and that Defendants' "Motion for Summary Judgment" be granted. Plaintiffs filed Objections to Judge Horn's recommendation on February 22, 2000. The specific objections raised by Plaintiffs are considered herein.
The Federal Magistrate Act provides that "a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made." 28 U.S.C. 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Accordingly, the Court has conducted a careful review of Magistrate Judge Horn's "Memorandum and Recommendation," including a de novo review of those issues specifically raised in Plaintiffs' objections.
Although Plaintiffs object to the Magistrate Judge's characterization of certain events, the material facts of this case are not in dispute. In the summer of 1997, Plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling & Blasting, Inc. set up blasting operations in the Clingman Community of Wilkes County, North Carolina. Due to safety concerns, Defendants Wilkes County and Kevin Bounds, Wilkes Count Fire Marshal, took action in response to Plaintiffs' operations.
At its June 16, 1998 meeting, the Board of County Commissioners ("the Board") adopted the "Wilkes County Explosive Materials Permitting Ordinance" ("Permitting Ordinance"), which was duly recorded in the Wilkes County register of Deeds Office on June 22, 1998.1 The Permitting Ordinance requires "applicants" to submit detailed information to and obtain a permit from the Wilkes County Fire Marshal prior to possessing, storing, transporting, or other dealing in explosive materials in Wilkes County. (Pl.'s Am. Comp. Ex. 1.) The Permitting Ordinance gives the Fire Marshal decision-making authority over the application process, which includes a public hearing and consultation with the Federal Bureau of Alcohol, Tobacco & Firearms ("ATF"), the Wilkes County Health Department, the Wilkes County Planning Department, the Wilkes County Building Inspections Department, and the Board. In addition, only businesses operating in Wilkes County on the day the Permitting Ordinance was adopted may apply for a permit.
On September 22, 1998, following the necessary approval by the North Carolina Building Code Council, the Board enacted "An Ordinance for the Regulation of Explosive Materials Ordinance in Wilkes County" ("Regulatory Ordinance"). (Pl.'s Am. Comp. Ex. 3.) The Regulatory Ordinance generally addresses the storage and use of explosives in Wilkes County. Specifically, the Regulatory Ordinance prohibits the pre-mixing of explosives and the storing of pre-mixed explosives, requires the installation of security measures at locations where explosives are stored, sets quantity limits on stored explosives, and sets penalties for violations.
While Building Code Council approval of the Regulatory Ordinance was pending, the Fire Marshal on August 6, 1998, issued a directive limiting the hours of operation of vehicles transporting explosive materials on the Bethel and Clingman Roads in Wilkes County. This directive was subsequently amended to reduce the restricted hours of operation. The amended directive (the "Directive") prohibits vehicles transporting explosive materials from operating on the aforementioned roads from 7:00 a.m. to 8:30 a.m. and 2:30 p.m. to 4:00 p.m. on days during which school is open. The Directive is based on the Fire Marshal's concern for the traffic on these roads during school bus hours and the proximity of the Plaintiffs' businesses to the Ronda-Clingman Elementary School..
Plaintiffs have not applied for a permit. However, they vehemently object to the Ordinances and the Directive on statutory, constitutional, and preemption grounds.
Plaintiffs first objection is directed to the validity of the Ordinances and their related enabling statute under of the North Carolina Constitution. The Ordinances were enacted pursuant to authority granted in N.C. GEN. STAT. § 153A-128.2 That statute provides that "[a] county may by ordinance regulate, restrict, or prohibit the sale, possession, storage, use or conveyance of any explosive, corrosive, inflammable, or radioactive substance ..." § 153A-128. Although their reasoning is not entirely clear, Plaintiffs contend that either § 153A-128 or the Ordinances are "local laws" prohibited by Article II, § 24 of the North Carolina Constitution. As demonstrated below, Plaintiffs' assertions are inaccurate.
Article II, § 24 states in pertinent part:
(1) Prohibited subjects. The General Assembly shall not enact any local, private, or special act or resolution:
(a) Relating to health, sanitation, and the abatement of nuisances;
* * * * * *
(j) Regulating labor, trade, or manufacturing ...
Through this provision, North Carolina has elected to prohibit its legislature from promulgating "local acts" relating to, inter alia, health, labor, trade and manufacturing. The North Carolina Supreme Court defines "local act" as an enactment by the North Carolina General Assembly which, "in fact, if not in form, is confined within territorial limits other than that of the whole state, or applies to any political subdivision or subdivisions of the state less than the whole ... as distinguished from a law which operates generally throughout the whole state." McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961); see also, Smith v. County of Mecklenburg, 280 N.C. 497, 187 S.E.2d 67 (1972) ().
Plaintiffs confuse "local acts" by the legislature with acts enabling counties to regulate and, apparently, the county ordinances which result. Article II, § 24 does not mention or address the regulatory authority of counties or other local governments. Nor does it prohibit the legislature from empowering counties to regulate in the relevant fields. In fact, the very purposes of Article II, § 24 are to relieve the General Assembly from the "petty detail" of local regulations, to require the General Assembly to devote its time to uniform action on matters of statewide concern, and, thereby, to strengthen local self-government. High Point Surplus Co. v. Pleasants, 264 N.C. 650, 142 S.E.2d 697 (1965); Gardner v. City of Reidsville, 269 N.C. 581, 153 S.E.2d 139 (1967).
Article II, § 24 merely prevents the North Carolina General Assembly from imposing certain regulations which do not receive statewide application. In this regard, § 153A-128 confers authority uniformly on all counties. Consequently, § 153A-128 is a general law that comports perfectly with Article II, § 24. Plaintiff's first objection is entirely without merit.
Plaintiffs further object to the Magistrate Judge's finding that the Ordinances are a valid use of the State's "police power" to protect the public, health, safety, and welfare.3 Specifically, Plaintiffs contend that the record is devoid of evidence which could support a finding that Plaintiffs' operations pose a threat to the citizens of Wilkes County or that the Ordinances are "reasonably necessary" to protect against any perceived harm. In this regard, Plaintiffs note that the only evidence in the record on these issues is presented by Plaintiffs and shows that (1) Plaintiffs know of not a single explosion at a "magazine" site; (2) that the materials used in the explosives industry do not pose a threat to the public health, safety or welfare when stored, used and transported in the manner required by the ATF; and (3) that both Plaintiffs store, use and transport their explosives in the manner required by federal law. Thus, Plaintiffs assert that the Ordinances violate substantive principles of due process and the "Law of the Land" clause of the North Carolina Constitution, Article I, § 19.4
The Magistrate Judge found that the Ordinances were duly and properly adopted pursuant to Wilkes' County's police power, as directed by N.C. GEN. STAT. § 153A-128. Both federal and state law presume that a duly enacted statute is valid and constitutional. See Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir.1984); State v. Warren, 252 N.C. 690, 696, 114 S.E.2d 660, 666 (1960). This presumption also applies to ordinances. See Linmark Assoc., Inc. v. Township of Willingboro, 535 F.2d 786, 793 (3rd Cir.1976); State v. Stallings, 230 N.C. 252, 254, 52 S.E.2d 901, 903 (1949). Therefore, Plaintiffs bear the burden of proof on all constitutional issues.
Economic regulations, such as those at issue here, need only be rationally related to a...
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Southern Blasting Services v. Wilkes County, Nc, 01-2098.
...and Regulatory Ordinances were valid and granted summary judgment to the County and the Fire Marshal. See S. Blasting Servs., Inc. v. Wilkes County, 162 F.Supp.2d 455 (W.D.N.C.2001). The district court held that plaintiffs' preemption claim failed because Congress did not intend to "occupy ......