Treants Enterprises, Inc. v. Onslow County, 746A86

• Decision Date: 07 October 1987
• Docket Number: No. 746A86,746A86
• Court: North Carolina Supreme Court
• Parties: TREANTS ENTERPRISES, INC. v. ONSLOW COUNTY, the Sheriff of Onslow County in his official capacity; and the Onslow County Tax Collector in his official capacity.

Page 783

360 S.E.2d 783

320 N.C. 776

TREANTS ENTERPRISES, INC. v. ONSLOW COUNTY, the Sheriff of Onslow County in his official

capacity; and the Onslow County Tax Collector in

his official capacity.

No. 746A86.

Supreme Court of North Carolina.

Oct. 7, 1987.

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

Roger A. Moore, Jacksonville, for defendants-appellants.

MARTIN, Justice.

Plaintiff successfully sought to enjoin the enforcement of an Onslow County ordinance that imposes licensing requirements on businesses purveying male or female "companionship." The superior court's order was affirmed by the Court of Appeals on constitutional grounds. Today we affirm the decision of the Court of Appeals.

On 19 June 1985 Onslow County enacted an ordinance entitled, "AN ORDINANCE REGULATING BUSINESSES PROVIDING MALE OR FEMALE COMPANIONSHIP" (amended 1 July 1985). Like the massage parlor ordinance that preceded it, this ordinance was intended to prevent the use of ostensibly legitimate businesses as blinds for pandering and prostitution. At the time the ordinance was enacted, county officials were particularly concerned about establishments known locally as "movie mates," which provide female companions for their male patrons while viewing movies in private rooms. But, Onslow County officials found themselves in a position which can be likened to that of ancient Hercules in his contest with the serpent Hydra. Based on their experience with massage parlors, they anticipated that an ordinance directed specifically at movie-mates establishments would merely cause operators to reconstitute their businesses in some further "adult entertainment" guise. To effectively combat prostitution, county officials sought an ordinance drawn with sufficient breadth to foil such ingenuity. The resulting ordinance regulated all "companionship businesses." A "male or female companionship business" is defined by the ordinance as one that is engaged in "providing or selling male or female companionship in exchange for money or other valuable consideration."

The provisions of the ordinance include the following: (1) all companionship businesses are to be licensed; (2) all such businesses are to be conducted on licensed premises; (3) persons convicted of a felony or crime involving prostitution within the preceding five years will be denied a license; likewise, persons subsequently convicted will suffer license revocation; (4) licensees must register the names and addresses of their employees with the sheriff; knowing employment of prostitutes is grounds for revocation of license; (5) persons under eighteen years old may not patronize companionship businesses; (6) the name, birthdate, and physical characteristics of patrons must be recorded and filed with the sheriff's department.

The ordinance was to become effective in August of 1985. However, the statute has never been enforced pending determination of its validity. In June of that year, the plaintiff, Treants Enterprises, Inc., which operates three movie-mates businesses in Onslow County, filed a complaint challenging the constitutionality of the ordinance. In October 1985 the superior court permanently enjoined defendants from enforcing the ordinance. In an opinion filed in November 1986 the Court of Appeals affirmed the order of the superior court, based upon state constitutional principles, holding that the ordinance violated article I, sections 1 and 19 of the North Carolina Constitution. Defendants' appeal is before this Court pursuant to N.C.G.S. § 7A-30(1), which provides an appeal as of right from any decision of the Court of Appeals which involves a substantial question arising under the Constitution of the United States or the North Carolina Constitution. Defendants base their appeal only on state constitutional grounds. No federal constitutional questions are at issue. Therefore, our decision on this appeal is based solely upon adequate and independent state grounds. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

Evidence presented by the defendants tended to show that movie-mates establishments have harbored prostitution, crimes against nature, and the use of controlled substances. Further, the efforts of county law enforcement officials to halt these practices have been frustrated by movie-mates operators. They have taught their employees methods of detecting undercover officers and thus thwarted efforts to police these establishments. Evidence presented by defendant Onslow County also showed that its prior effort to combat organized prostitution through the massage parlor ordinance had been effective, if only to force the chameleon of adult entertainment to appear in novel hues. Since the enactment of the massage parlor ordinance in 1978, no massage parlors have operated in Onslow County.

The defendants are correct in asserting that (1) the state has the power to do whatever may be necessary to protect public health, safety, morals, and the general welfare, A-S-P Associates v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979); (2) the police power may be delegated by the state to its municipalities when the legislature deems it...