Copyright 1997 - N.C. Administrative Office of the Courts


10W

Maynor v. Onslow County

No. COA96-1237

(Filed 5 August 1997)

1,    Parties § 12 (NCI4th)-- agent of owner -- not real party in interest

    An agent of the owner is not a real party in interest and cannot maintain an action without the owner. However, since neither party raised the issue, the manager of an adult business will be treated as if she is the real party in interest in this appeal from an order enforcing a county ordinance regulating the location of adult businesses.

2.    Municipal Corporations § 332 (NCI4th); Counties § 86 (NCI4th)-- absence of comprehensive zoning ordinance -- ordinance regulating location of adult businesses

    The failure of a county to adopt a comprehensive zoning ordinance did not preclude the county from enacting an ordinance regulating the location of adult and sexually oriented businesses pursuant to its police powers under N.C.G.S. § 153A-121. Furthermore, the ordinance was a valid exercise of the county's police powers.

3.    Constitutional Law § 64 (NCI4th); Municipal Corporations § 332 (NCI4th)-- location of adult businesses -- ordinance not overbroad

    A county ordinance regulating the location of adult and sexually oriented businesses was not unconstitutionally overbroad where the ordinance was not intended to restrict any communication or speech or to deny adults access to any materials.

4.    Constitutional Law § 49 (NCI4th)-- vagueness of ordinance -- absence of standing to challenge

    The manager of an adult business did not have standing to argue that the definition of "adult business" in a county ordinance regulating the location of adult businesses was unconstitutionally vague where she acknowledged in her pleadings that the ordinance applied to her business and that enforcement of the ordinance would result in the closing of her business, and she failed to show that the ordinance affects protected communication.

5.    Appeal and Error § 419 (NCI4th)-- preemption issue -- absence of assignment of error

    Where no assignment of error corresponds to the issue of preemption, that issue was not properly before the appellate court. N.C. R. App. P. 10(a).

NO. COA96-1237

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 1997

CYNTHIA ROYAL MAYNOR,

    Plaintiff,

     v.

ONSLOW COUNTY,

    Defendant.

     Appeal by plaintiff from order entered 2 May 1996 by Judge James R. Strickland in Onslow County Superior Court. Heard in the Court of Appeals 20 May 1997.

    Lanier and Fountain, by Keith E. Fountain, for plaintiff appellant.

    Shipman & Associates, L.L.P., by Gary K. Shipman, C. Wes Hodges, II, and Carl W. Thurman, III, for defendant appellee.

    COZORT, Judge.

    Plaintiff appeals from the superior court order dismissing her action seeking to prevent enforcement of Onslow County's Ordinance to Regulate Adult Businesses (the Ordinance) and enjoining her from operating the adult business, The Doll House. We affirm the trial court.

    Plaintiff is the manager of The Doll House in Jacksonville. On or about 21 September 1992, the Onslow County Board of County Commissioners (the County) adopted an ordinance regulating the location of adult and sexually oriented businesses in Onslow County. Any adult or sexually oriented business not in compliance with the Ordinance after 21 September 1994 was to be discontinued pursuant to the Ordinance. The purpose of the Ordinance was set forth in the resolution adopted by the Commissioners:

        [A]fter 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 . . . .

Onslow County Code. The resolution also provides that "it is not the intent of the Board of Commissioners of Onslow County . . . to deny reasonable access to the distributors and exhibitors of sexually oriented entertainment to their intended market . . . ." Id.

    An adult business as defined by the Ordinance is "any business activity, club or other establishment which permits its employees, members, patrons or quest [sic] on its premises to exhibit any specified anatomical areas before any other person or persons." Onslow County Code, Art. IV(c). The Ordinance prescribes the location of sexually oriented businesses (defined in the Ordinance) and adult businesses. The portion of the Ordinance regulating adult businesses is as follows: