Link to original WordPerfect file
STATE OF NORTH CAROLINA, Plaintiff, v. ROY ELLIS BAGGETT, Defendant
1. Appeal and Error--assignments of error--legal basis for error required
The State's appeal was subject to dismissal where the assignment of error failed to set
forth the legal basis on which the State contended the trial court erred; however, the State
included in the notice of appeal the legal basis on which it challenged the ruling and, since the
appellees were informed of the issues to be raised and were thereby allowed to protect their
interests, the appeal was reviewed under Appellate Rule 2.
2. Zoning--adult business--extraterritorial jurisdiction
The trial court correctly dismissed criminal charges of operating an adult business
within 1,000 feet of a residence in violation of a county ordinance where the business was
outside the city limits but within the City's extraterritorial jurisdiction and it was not clear
whether the county ordinance applied outside Jacksonville's city limits or outside
Jacksonville's extraterritorial jurisdiction. Where the language of an ordinance is ambiguous,
it must be strictly construed.
Judge LEWIS dissenting.
Appeal by plaintiff from order filed 27 February 1998 by
Judge Russell J. Lanier, Jr. in Onslow County Superior Court.
Heard in the Court of Appeals 23 February 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Jill Ledford Cheek, for the State.
Lanier & Fountain, by Keith E. Fountain, for defendant-
appellees.
GREENE, Judge.
The State appeals from the superior court's order
affirming the district court's dismissal of criminal charges
against Roy Ellis Baggett and Ed Penuel (collectively,
Defendants).
Defendants own and operate Tobie's Lounge, a topless bar
located less than one mile outside the city limits of
Jacksonville, North Carolina, in Onslow County. On 26 August
1997, Defendants were each charged with "knowingly andintentionally operat[ing] an adult business known as Tobie's
Lounge within 1,000 feet of a building used as a residence" in
violation of Onslow County Ordinance § 8-205. Defendants each
filed a motion to dismiss the charges on 30 September 1997.
The district court allowed Defendants' motions to dismiss on 19
November 1997, and the State gave notice of appeal to the
superior court. On 27 February 1998, the superior court
affirmed dismissal of the charges against Defendants. The
State appeals from the superior court's order.
[1]Before addressing the merits of the State's appeal, we
note that our scope of review on appeal is confined to properly
presented assignments of error. Rogers v. Colpitts, 129 N.C.
App. 421, 499 S.E.2d 789 (1998). Rule 10 of the Rules of
Appellate Procedure requires that "[e]ach assignment of error
shall . . . state plainly, concisely and without argumentation
the legal basis upon which error is assigned." N.C.R. App. P.
10(c)(1). One purpose of this rule is to "identify for the
appellee's benefit all the errors possibly to be urged on
appeal . . . so that the appellee may properly assess the
sufficiency of the proposed record on appeal to protect his
position." Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d
435, 437 (1988).
In this case, the State's only assignment of error is:
"The trial court acted incorrectly as a matter of law in
affirming the District Court's ruling dismissing the above
referenced charges." The State failed to set forth in its
assignment of error the legal basis on which it contends the
trial court erred, and has thereby subjected this appeal to
dismissal. See Rogers, 129 N.C. App. at 423, 499 S.E.2d at 790
(dismissing appeal for failure to state the legal basis onwhich error was assigned). The State did include, in its
Notice of Appeal to this Court, the legal basis on which it
challenged the trial court's ruling, noting its contention that
the trial court erred "because the Ordinance in question is a
police power ordinance . . . . The city of Jacksonville has no
jurisdiction to enact police power ordinances in [its
extraterritorial jurisdiction]. Therefore, Tobie's Lounge is
not located within the [county] 'exclusive of the jurisdiction
of any incorporated municipality.'" Although including this
information in the notice of appeal does not cure the State's
inadequate assignment of error, it did inform the appellees of
the issues to be raised and thereby allowed the appellees to
protect their interests by assessing the sufficiency of the
proposed record on appeal. Accordingly, in our discretion, we
review the merits of the State's appeal. N.C.R. App. P. 2
(providing that this Court may "suspend or vary the
requirements or provisions of any of these rules" in order to
"prevent manifest injustice" or "expedite decision in the
public interest").
[2]For purposes of this appeal, we assume that Tobie's
Lounge violates the Onslow County adult business ordinance.
Accordingly, the only issue is whether the Onslow County adult
business ordinance applies to businesses, such as Tobie's
Lounge, located within the area one mile outside Jacksonville's
city limits.
Article 6 ("Delegation of Police Powers") of Chapter 153A
("Counties") provides: "A county may by ordinance define,
regulate, prohibit, or abate acts, omissions, or conditions
detrimental to the health, safety, or welfare of its citizensand the peace and dignity of the county; and may define and
abate nuisances." N.C.G.S. § 153A-121(a) (1991). The county's
authority under Article 6 extends "to any part of the county
not within a city." N.C.G.S. § 153A-122 (1991). It follows
that Onslow County has statutory authority to enact an
ordinance regulating all businesses located outside the city
limits of Jacksonville.
(See footnote 1)
The remaining question is whether
Onslow County did so. See Town of Lake Waccamaw v. Savage, 86
N.C. App. 211, 356 S.E.2d 810 (holding that town was authorized
to exercise extraterritorial jurisdiction but had not done so),
disc. review denied, 320 N.C. 797, 361 S.E.2d 89 (1987).
The Onslow County adult business ordinance, enacted in
1992, provides:
Sec. 8-201. Authority and jurisdiction.
The provisions of this article are
adopted by the county board of
commissioners under authority granted by
the General Assembly of the State of North
Carolina, in Chapter 153A, (45-50) and
further Article VI of Chapter 153A, Section
135 of the General Statutes. From and
after the effective date hereof, this
article shall apply to every building, lot,
tract or parcel of land within the county
exclusive of the jurisdiction of any
incorporated municipality (as herein
stated) . . . .
Onslow County, N.C., Code art. VII, § 8-201 (1992) (emphasis
added).
In construing ordinances, we adhere to fundamental
principles of statutory construction. Hayes v. Fowler, 123
N.C. App. 400, 404, 473 S.E.2d 442, 445 (1996). Where the
language employed is clear and unambiguous, there is "no room
for judicial construction." Avco Financial Services v. Isbell,
67 N.C. App. 341, 343, 312 S.E.2d 707, 708 (1984). Where the
language employed is ambiguous, however, we must strictly
construe language creating a criminal offense. State v.
Clemmons, 111 N.C. App. 569, 572, 433 S.E.2d 748, 750, cert.
denied, 335 N.C. 240, 439 S.E.2d 153 (1993); see also Davidson
County v. City of High Point, 321 N.C. 252, 257, 362 S.E.2d
553, 557 (1987) ("Statutorily granted powers are to be strictly
construed.").
In this case, the Onslow County adult business ordinance
explicitly applies only to businesses located within Onslow
County "exclusive of the jurisdiction" of Jacksonville. This
phrase is ambiguous because Jacksonville has "extraterritorial
jurisdiction" over areas within one mile of its city limits.
See N.C.G.S. § 160A-360(a) (Supp. 1998) (providing that an
incorporated municipality may extend its jurisdiction outside
its borders by one to three miles); N.C.G.S. § 160A-193 (1994)
(giving municipalities "authority to summarily remove, abate,
or remedy everything in the city limits, or within one mile
thereof, that is dangerous or prejudicial to the public health
or public safety"). It is therefore unclear whether the Onslow
County adult business ordinance applies to businesses outside
Jacksonville's city limits, or whether it applies only to those
businesses outside Jacksonville's extraterritorialjurisdiction. Accordingly, strictly construing Onslow County's
adult business ordinance as written, it does not apply to
businesses located within Jacksonville's extraterritorial
jurisdiction. Because Tobie's Lounge is located within
Jacksonville's extraterritorial jurisdiction, it follows that
the trial court correctly dismissed the charges against
Defendants.
Affirmed.
Judge HORTON concurs.
Judge LEWIS dissents.
LEWIS, Judge, dissenting.
The parties have stipulated that Tobie's Lounge is a
business of the type regulated by Section 8-205 of the Onslow
County Code. The ordinance says it is adopted "under authority
granted by . . . Chapter 153A," and that it applies to any
"land within the county exclusive of the jurisdiction of any
incorporated municipality (as herein stated)." Onslow County
Code § 8-201 (1992) (emphasis added). The parenthetical
indicates that "jurisdiction" refers to jurisdiction under
police powers, the "herein stated" Chapter 153A at issue.
There is no mention anywhere in the ordinance of any planning
or zoning statutes; rather, the ordinance cites only police
power statutes. Furthermore, although the City's resolution
titled, "A RESOLUTION ALLOWING ONSLOW COUNTY TO ENFORCE ITS
ADULT BUSINESS ORDINANCE WITHIN THE CITY'S ONE-MILE
EXTRATERRITORIAL JURISDICTION," is not dispositive of the
issue, it provides further notice to defendants that the County
ordinance applies to their establishment. Finally, section 8-
202 clarifies that the ordinance is intended to regulate adultbusinesses "located in the county." Onslow County Code § 8-202
(1992).
Accordingly, I disagree with the majority's reasoning that
the ordinance is vague in its use of the term "jurisdiction"
and that defendants might lack notice of the applicability of
this ordinance to their business. Courts presume that
defendants know the law, see State v. Rose, 312 N.C. 441, 446,
323 S.E.2d 339, 342 (1984), and this specific ordinance was
adopted pursuant to County police powers according to our prior
case law. See Onslow County v. Moore, 129 N.C. App. 376, 382,
499 S.E.2d 780, 785, disc. review denied, 349 N.C. 361, ___
S.E.2d ___ (1998); Maynor v. Onslow County, 127 N.C. App. 102,
106, 488 S.E.2d 289, 292, cert. denied, 347 N.C. 400, 496
S.E.2d 385 (1997). When the ordinance refers to jurisdiction
"as herein stated," and no mention ever is made to planning or
zoning statutes, or any statutes other than police power
statutes, "jurisdiction" can mean only jurisdiction under the
County's police powers. "Jurisdiction" in the ordinance is not
a vague term.
The majority insinuates that these defendants might
reasonably have believed they were operating their topless bar
outside the reach of Onslow County police powers to regulate
them and outside the City's power to regulate since they were
within the City's jurisdiction only for zoning and planning
purposes. I cannot believe that these business owners operated
under the assumption that they had found a strip club utopia
where no municipal force regulated for the health, safety, and
welfare of the people. This Court had provided defendants
notice that this County ordinance regulated topless bars such
as theirs, and that it was enacted pursuant to the County'spolice powers. There is no ambiguity in the term
"jurisdiction" in the County ordinance, and I vote to reverse
and remand for trial.
I respectfully dissent.
Footnote: 1
*** Converted from WordPerfect ***