Onslow County v. MooreOnslow County v. Moore
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Appellants Gene Moore, Kimberly McKillop and Patricia Treants each own businesses alleged to be in violation of an ordinance of appellee Onslow County (the County) entitled “Ordinance to Regulate Adult Businesses and Sexually Oriented Businesses in Onslow County, NC.” (the ordinance). The ordinance, which contains specific definitions of an “adult business,” a “sexually oriented business,” “specified anatomical areas” and “specified sexual activities,” provides that adult and sexually oriented businesses shall not be permitted in any building located within 1000 feet in any direction from a residence, house of worship, public school or playground, or other adult or sexually oriented business. All adult and sexually oriented businesses operating on 21 September 1992, the effective date of the ordinance, were required to comply with the terms of the ordinance within two years. The ordinance also provided that injunctive relief and the issuance of orders of abatement could be used to enforce compliance with the ordinance. A resolution adopted by the County Board of Commissioners stated that
after comprehensive study of potential deleterious secondary effects of certain types of sexually oriented adult businesses, the Board of Commissioners of Onslow County finds that it is appropriate and necessary to prevent those deleterious secondary effects which can reasonably be expected to result from the inappropriate location or concentration of such businesses ....
In addition, Article II of the Ordinance stated that “[f]or the purpose of promoting the health, safety, morals and general welfare of the citizenry of Onslow County, this Ordinance is adopted by the Board of Commissioners to regulate adult and sexually oriented businesses, as hereby defined, located in Onslow County.”
After being notified of the necessity of compliance with the ordinance, McKillop and Treants filed complaints on 20 September 1994 seeking declarations that the ordinance violated the .North Carolina General Statutes and the North Carolina Constitution. Both complaints requested that the trial court enter judgments declaring the ordinance invalid and unconstitutional and enjoining the County from enforcing the ordinance. In response to the complaints, the County filed answers and counterclaims. Alleging that McKillop and Treants operated businesses in violation of the ordinance, the County requested that the complaints be dismissed and that McKillop and Treants be enjoined from operating their businesses as nonconforming adult and sexually oriented businesses. In response to the County’s answers and counterclaims, McKillop and Treants alleged the ordinance violated the United States Constitution. On 3 July 1996, the trial court entered judgments dismissing the complaints with prejudice and enjoining McKillop and Treants from operating their businesses in any building located within 1000 feet of a residence, house of worship, or public school or playground. However, the trial court specifically found and concluded that the ordinance was partially preempted by
On 5 December 1995, the County filed an action against Moore, pursuant to the ordinance, seeking a mandatory and/or prohibitory preliminary and permanent injunction and order of abatement commanding Moore to comply with the provisions of the ordinance. On 18 January 1996, nunc pro tunc 15 December 1995, the trial court found that Moore operated a sexually oriented business in violation of the ordinance and entered a preliminary injunction commanding Moore to bring the business in compliance with the ordinance and prohibiting him from violating the ordinance. This order was filed with the Onslow County Clerk of Court on 26 March 1996. Moore gave notice of appeal from the entry of the preliminary injunction on 18 April 1996. On 3 July 1996, the trial court entered an order finding that Moore willfully failed to comply with the provisions of the injunction and holding him in contempt. On 3 December 1996, this Court, in an unpublished opinion (COA96-828), dismissed Moore’s appeal of the preliminary injunction as interlocutory.
McKillop and Treants appeal the judgments dismissing their complaints with prejudice and permanently enjoining them from operating their businesses in buildings located within 1000 feet of a residence, house of worship, or public school or playground. The County appeals from the portion of these judgments declaring the ordinance partially preempted by
I. McKillop’s and Treants’ appeals
In their first two assignments of error, McKillop and Treants contend the trial court erred by denying their motions to dismiss and by denying their motions to amend their replies to the County’s counterclaims. However, McKillop and Treants only gave notice of appeal from the trial court’s judgments entered 3 July 1996 dismissing their complaints and enjoining them from violating the ordinance. Our Rules of Appellate Procedure require that a party entitled to appeal from a judgment or order “may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed
McKillop and Treants cite
In re Foreclosure of Allan & Warmbold Constr. Co.,
88 N.C. App. 693, 696, 364 S.E.2d 723, 725,
disc. review denied,
322 N.C. 480, 370 S.E.2d 222 (1988), for the proposition that an appeal from a final judgment or order includes intermediate orders “ ‘involving the merits and necessarily affecting the judgment^ ” (quoting
we are not barred from considering the validity of the order . . . because the appellants did not appeal from it within the time required byRule 3 , N.C. Rules of Appellate Procedure. G.S. 1-278 permits us, incident to an appeal from a final judgment or order, to review intermediate orders ‘involving the merits and necessarily affecting the judgment,’ and the order striking the upset bid and requiring a resale is such an order.
Id.
(emphasis added). It is apparent that
Allan & Warmbold
discusses the appealability issue with respect to the time within which an appeal must be filed as set forth in
We do, however, find the case of Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C. App. 14, 411 S.E.2d 645 (1992), instructive. In Rite Color Chemical Co., we held that where defendant gave notice of appeal from the trial court’s order on unconscionability and directed verdict, and from a subsequent judgment, the notice of appeal did not give this Court jurisdiction to review the trial court’s orders denying defendant’s motions to amend its pleadings. Id. at 17, 411 S.E.2d at 647. Because McKillop and Treants failed to file notices of appeal from the trial court’s denials of their motions to dismiss and to amend their replies to the County’s counterclaims, we need not address those issues.
McKillop and Treants next contend the trial court erred by issuing an injunction which orders them to obey an ordinance that violates Chapter 153 of the General Statutes, is preempted by state law, and violates their federal and state constitutional rights. However, for the reasons set forth below, we conclude the trial court properly enjoined McKillop and Treants from operating their businesses within 1000 feet of a residence, house of worship, or public school or playground.
A. The ordinance is a valid exercise of the general police powers granted to the County by the North Carolina Legislature
McKillop and Treants argue that the ordinance is a zoning ordinance, and as such is invalid since it was not adopted pursuant to a comprehensive zoning plan for the County. This Court recently addressed the same challenge by the manager of an adult business to the samé Onslow County ordinance in
Maynor v. Onslow County,
127 N.C. App. 102, 488 S.E.2d 289,
appeal dismissed,
347 N.C. 268, 493 S.E.2d 458,
cert. denied,
347 N.C. 400, 496 S.E.2d 385 (1997). In
Maynor,
we noted that
B. The ordinance is not preempted by
McKillop and Treants next argue that if the ordinance was adopted pursuant to the County’s police powers, to the extent the ordinance attempts to regulate the exposure of “specified anatomical areas,” it is preempted by
(a) Any person who shall willfully expose the private parts of his or her person in any public place and in the presence of any other person or persons, of the opposite sex, or aids or abets in any such act, or who procures another to perform such act; or any person, who as owner, manager, lessee, director, promoter or agent, or in any other capacity knowingly hires, leases or permits the land, building or premises of which he is owner, lessee or tenant, or over which he has control, to be used for purposes of any such act, shall be guilty of Class 2 misdemeanor.
It is evident that the purpose of
McKillop and Treants cite
State v. Tenore,
280 N.C. 238, 185 S.E.2d 644 (1972), to support their argument that the ordinance is preempted by
C. The ordinance does not violate the First Amendment to the United States Constitution
McKillop and Treants also assign as error that the ordinance violates their rights under the federal and state constitutions. While in their briefs, McKillop and Treants claim the ordinance “runs afoul of the First Amendment to the United States Constitution[,]” they make no argument regarding the North Carolina Constitution. Thus, McKillop and Treants have waived any consideration of a violation under the North Carolina Constitution.
See
We believe Young v. American Mini Theatres, 427 U.S. 50, 49 L. Ed. 2d 310, reh’g denied, 429 U.S, 873, 50 L. Ed. 2d 155 (1976), is dispositive of the First Amendment issues presented in the instant case. Young involved a challenge to an ordinance of the City of Detroit which prohibited adult theaters from locating within 1000 feet of any two other regulated uses or within 500 feet of a residential area. Id. at 52, 49 L. Ed. 2d at 316. The term “regulated uses” applied to ten different kinds of establishments, including other adult theaters. Id. In a four-member plurality opinion, with the concurrence of a fifth justice in the result, the United States Supreme Court rejected an argument that the ordinance violated the First Amendment or equal protection principles, stating that:
[W]e are also persuaded that the 1,000-foot restriction does not, in itself, create an impermissible restraint on protected communication. The city’s interest in planning and regulating the use of property for commercial purposes is clearly adequate to support that kind of restriction applicable to all theaters within the city limits. In short, apart from the fact that the ordinances treat adult theaters differently from other theaters and the fact that the classification is predicated on the content of material shown in the respective theaters, the regulation of the place where such films may be exhibited does not offend the First Amendment.
Id. at 62-63, 49 L. Ed. 2d at 321-22.
Likewise, in the instant case, it is evident that the ordinance does not impose an “impermissible restraint” on the freedom of expression, but merely regulates the location of adult and sexually oriented businesses. The ordinance does not totally prohibit the existence of these businesses, but only prohibits them from locating in particular areas. We therefore conclude the ordinance does not run afoul of the First Amendment.
See also Hart Book Stores, Inc. v. Edmisten,
612 F.2d 821 (4th Cir. 1979),
cert. denied,
447 U.S. 929, 65 L. Ed. 2d 1124 (1980) (holding that
While not specifically raised by McKillop or Treants, we note that under Maynor, the ordinance is not unconstitutionally overbroad or vague as applied to McKillop’s and Treants’ businesses. In determining that the ordinance was not overbroad, we stated in Maynor
it is clear from the County Commission’s resolution that the Ordinance was not intended to restrict any communication or protected speech or to deny adults access to the distributors of sexually oriented entertainment. The Ordinance is an attempt to regulate the location and the access to these materials. ‘The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirementsis not a sufficient reason for invalidating [an] ordinance!].’
127 N.C. App. at 106, 488 S.E.2d at 292 (quoting Young, 427 U.S. at 62, 49 L. Ed. 2d at 321).
We further concluded in Maynor that the ordinance was not vague as applied to the plaintiff in that case because she acknowledged in her pleadings that the ordinance applied to her business. Id. at 107, 488 S.E.2d at 292-93. Likewise, in the instant case, both McKillop and Treants acknowledged in verified affidavits that if the ordinance was enforced, they would be compelled to cease operating their businesses. In addition, McKillop and Treants both stated in their complaints that if in fact they are forced to cease doing business in their current establishments, there is no location in Onslow County where they can conduct business without being in violation of the ordinance. Thus, ás in Maynor, since McKillop and Treants acknowledged in their pleadings that the ordinance applies to their businesses, we reject their argument regarding the ordinance’s alleged vagueness.
In sum, we conclude the trial court properly enjoined McKillop and Treants from operating their businesses within 1000 feet of a residence, house of worship, or public school or playground.
II. The County’s appeal
The County contends the trial court erred by finding and concluding in the judgments involving McKillop and Treants that the ordinance is preempted by
No person shall permit any building, premises, structure, or other facility that contains any adult establishment to contain any other kind of adult establishment. No person shall permit any building, premises, structure, or other facility in which sexually oriented devices are sold, distributed, exhibited, or contained to contain any adult establishment.
We conclude that
The County argues that it is not precluded from imposing a more stringent distance requirement than that found in
III. Moore’s appeal
Moore first contends the trial court lacked jurisdiction to hold contempt proceedings arising out of the preliminary injunction because an appeal of the order issuing the injunction was pending. Citing Joyner v. Joyner, 256 N.C. 588, 124 S.E.2d 724 (1962), Moore argues that the appeal of an underlying judgment stays contempt proceedings until the validity of the judgment is determined.
In
Clark v. Craven Regional Medical Authority,
326 N.C. 15, 23, 387 S.E.2d 168, 173 (1990), our Supreme Court observed that a preliminary injunction is interlocutory in nature, and, “[a]s a result, issuance of a preliminary injunction cannot be appealed prior to final judgment absent a showing that the appellant has been deprived of a substantial right which will be lost should the order ‘escape appellate review before final judgment[]’ ” (quoting
State v. School,
299 N.C. 351, 358, 261 S.E.2d 908, 913,
appeal dismissed,
449 U.S. 807, 66 L. Ed. 2d 11 (1980)). In the instant case, this Court, in determining that Moore’s appeal of the order issuing the preliminary injunction was interlocutory, noted that no substantial right of Moore was affected by the denial of immediate appellate review because the injunction only prohibited him from violating the law pending final judgment. Because the order issuing the injunction was interlocutory and no substantial right of Moore was affected by the denial of immediate appellate review, the trial court was not divested of jurisdiction
and could therefore properly hold Moore in contempt for violating the injunction.
See also
Moore next contends the trial court erred by holding him in contempt for violating the preliminary injunction because the contempt finding was partially based on conduct occurring on 5 January and 7 February 1996, prior to the filing of the preliminary injunction on 26 March 1996, and therefore, such conduct could not be the basis for a finding of contempt.
In its contempt order, the trial court made the following conclusions:
2. From and after the date of the pronouncement, in open Court, of the entry of the Preliminary Injunction by Judge Meyer (December 15, 1995), the Defendant has possessed the means and ability to comply with the Preliminary Injunction.
3. The Defendant has-willfully failed to comply with the provisions of the Preliminary Injunction, and as such, is in contempt of this Court, pursuant toN.C.G.S. §5A-21 .
Applying the aforementioned principles in the instant case, because the order issuing the preliminary injunction was not filed with the Onslow County Clerk of Court until 26 March 1996, the order was not “entered,” and thus not effective or “in force” until that date. Because a person cannot be held in contempt of an order that is not “in force,”
see
We have carefully reviewed Moore’s remaining assignments of error and find them to be without merit. The order of the trial court holding Moore in contempt is reversed. However, because the trial court held Moore in contempt for violations of the preliminary injunction other than those occurring on 5 January and 7 February 1996, we remand the case to the trial court for entry of a new order not inconsistent with our opinion. The court may, in its discretion, receive additional evidence and hear further argument on the issues presented but is not required to do so.
Case Nos. 94 CvS 1980 and 1981 are affirmed.
Case No. 95 CvS 2836 is reversed and remanded.
Judges WYNN and WALKER concur.