STATE OF NORTH CAROLINA,
NEW HANOVER COUNTY
No. 01 CRS 13586
CHRIS LUTTERLOAH, JR.,
Appeal by defendant from judgment entered 6 May 2004 by Judge
Ernest B. Fullwood in New Hanover County Superior Court. Heard in
the Court of Appeals 9 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Hope Murphy White
, for the State.
Hall & Horne, L.L.P., by William R. Shell, for defendant-
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Defendant was found guilty by a jury of violating Section 3-5 of the town ordinance of the Town of Carolina Beach and resist, delay, and obstruct a public officer. N.C. Gen. Stat. § 14-223. Judge Fullwood imposed a sentence of sixty days, a fine of $500, and cost of court. The sixty-day sentence was suspended and defendant was placed on unsupervised probation for twenty-four months.
On 21 June 2001, defendant transported horses to the residence of Hillary Hanes, located on Canal Drive, within the corporate limits of the Town of Carolina Beach. Miss Hanes intended to ride the horses on the beach outside of the town limits. Section 3-5 ofthe town ordinance of the Town of Carolina Beach provides: [it] shall be unlawful to ride, lead, or drive any animal upon the sidewalk, boardwalk, roads, or beaches within the corporate limits. Defendant was aware of the ordinance and it was agreed that he and Stacey Walsh, who had accompanied defendant to the Hanes' residence, would ride the horses to outside the town limits. Miss Hanes would follow them to the town limits and then ride the horses on the beach. As defendant and Mr. Walsh rode the horses down Canal Drive, they were approached by Officer Gray of the Carolina Beach Police Department. Upon being asked for identification, defendant said, Sir, you have got to be kidding me. You are not going to write me another citation, and also stated his identification was at the Hanes' residence.
Officer Gray instructed them to retrieve their identification. Defendant and Mr. Walsh began riding the horses back down Canal Drive. At that time, Officer Gray instructed them to get off of the horses. Mr. Walsh immediately complied. Defendant refused to comply and directed his horse into what he described as a nice little trot down Canal Street. Officer Gray pursued in his vehicle with blue lights and siren, finally pulling defendant and the horse over. Defendant was charged with a violation of Section 3-5 of the town ordinance and under N.C. Gen. Stat. § 14-223 for resist, delay or obstruct a public officer in discharging a duty of his office. In his first argument, defendant contends the Town of Carolina Beach was without authority to enact Section 3-5 of its town ordinance. We disagree.
N.C. Gen. Stat. § 160A-186 allows a city to regulate, restrict, or prohibit the keeping, running, or going at large of any domestic animals.(emphasis added). Defendant argues Section 3-5 goes beyond the regulation of the keeping, running, or going at large found in N.C. Gen. Stat. § 160A-186, and was enacted without authority.
The North Carolina Supreme Court has adopted an inclusive view of statutory interpretation, stating an act must be considered as a whole, and none of its provisions shall be deemed useless or redundant if they can reasonably be considered as adding something to the act. Town of Atlantic Beach v. Young, 307 N.C. 422, 425, 298 S.E.2d 686, 689 (1983). It is the duty of the courts to construe statutes so that they harmonize with other statutory provisions as much as possible. Victory Cab Co. v. Charlotte, 234 N.C. 572, 576, 68 S.E.2d 433, 437. See also Atlantic Beach, 307 N.C. at 426, 298 S.E.2d at 690 (construing Victory Cab Co. as requiring the court to do everything possible to uphold the constitutionality of the ordinance). This Court, therefore, has an obligation to harmonize Section 3-5 with N.C. Gen. Stat. § 160A- 186, if possible.
Defendant argues that when he was riding a horse he was not keeping a horse or allowing the horse to go at large. Defendantmakes no argument that riding a horse is not the same as running a horse.
Because N.C. Gen. Stat. § 160A-186 lists keeping and going at large separate from running, the legislators must have understood running to be a different aspect of animal control. Section 3-6 of the town ordinance concerns keeping animals within corporate limits, while Section 3-4 concerns allowing animals to go at large. This leaves Section 3-5 to regulate the running of animals. The regulation that animals cannot be ridden, led, or driven within the corporate limits is the Town of Carolina Beach's regulation of the running of animals under N.C. Gen. Stat. § 160A- 186. This argument is without merit.
In his second argument, defendant contends Section 3-5 of the town ordinance of the Town of Carolina Beach violates his due process rights under the Constitution of the United States of America and the State of North Carolina. We disagree.
There is a strong presumption that a statute enacted by a governmental entity is constitutional. Rhyne v. K-Mart Corp., 358 N.C. 160, 168, 594 S.E.2d 1, 7 (2004) (citing Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377, 384 (2002)). Municipal ordinances are presumed to be valid. McNeill v. Harnett County, 327 N.C. 552, 565, 398 S.E.2d 475, 482 (1990). By their very nature, government ordinances seek to place restrictions upon the conduct of individuals for the common good of the community. Unless the ordinance is clearly prohibited by the Constitution, id., or it is not related to a legitimate state objective, Atlantic Beach, 307 N.C. at 428, 298 S.E.2d at 691, the ordinance is constitutional. The mere fact the ordinance restricts the defendant from doing something he desires to do does not render the ordinance unconstitutional.
The North Carolina Supreme Court has held that a de novo standard of review is appropriate when constitutional rights are implicated. Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844,848 (2001).
In the case of Town of Atlantic Beach v. Young, our Supreme Court set forth the applicable law pertaining to due process challenges to municipal ordinances:
In order to determine whether this ordinance is unconstitutionally arbitrary and unreasonable we look to see if the ordinance is reasonably related to the accomplishment of a legitimate state objective. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970); State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860 (1947).
However, there is no question that the health and welfare of the citizens of this state are legitimate public purposes. We are therefore left the determination of whether the means employed, to-wit the contested ordinance, is reasonably related to the health and welfare of this state's citizens.
307 N.C. at 428, 298 S.E.2d at 691. In State v. Stowe, 190 N.C. 79, 128 S.E.2d 481 (1925), the Supreme Court upheld the authority of the City of Charlotte to regulate the keeping of cattle in the municipal limits. In Town of Atlantic Beach, our Supreme Court upheld a prohibition on the keeping of animals other than house pets as being reasonably related to the health and welfare of the citizens of Atlantic Beach, finding there to be nothing arbitrary,unreasonable, or oppressive about this ordinance. 307 N.C. at 429, 298 S.E.2d at 691.
Defendant focuses on the fact there is no statement of legislative purpose contained in Section 3-5 of the ordinance, arguing that without an expressly stated purpose, the ordinance cannot be reasonably related to a legitimate purpose. We reject such a theory. This would require governments to expressly set forth its intended purpose in each section and subsection of each law. Such is not required. We further note that in Section 3-2, contained in the same chapter as Section 3-5, there is a lengthy recitation of the legislative purpose behind banning certain animals, including horses, from the Town of Carolina Beach.
We hold the ordinance in question was reasonably related to the health and welfare of the citizens of Carolina Beach, and is not arbitrary, unreasonable, or oppressive. This argument is without merit.
In his third argument, defendant contends Section 3-5 of the town ordinance of the Town of Carolina Beach violates the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution, and Sections 1 and 19 of Article I of the Constitution of the State of North Carolina. We disagree.
Defendant argues there is no legitimate state interest in prohibiting horses being ridden, led, or driven within town limits because the General Assembly did not enact any legislation enabling regulation of such equine pursuits. The standard of review for Equal Protection Clause challenges is two-tiered. Atlantic Beach, 307 N.C. at 429, 298 S.E.2d at 691 (citing Texfi Industries, Inc. v. City of Fayetteville, 301 N.C. 1, 10, 269 S.E.2d 142, 149 (1980)). The first tier , strict scrutiny, is applied when either a fundamental right or a suspect class is involved. Id. The second tier is applied to all other challenges and requires a rational relationship to a legitimate state interest . Id. (citing New Orleans v. Dukes, 427 U.S. 297, 49 L.Ed. 2d 511 (1976)). Riding a horse is not a fundamental right, nor are the riders of horses a suspect class of individuals. Therefore, the second tier of review is appropriate in this case.
In Town of Atlantic Beach, the North Carolina Supreme Court held that an ordinance which prohibited goats and horses within the town was reasonably related to a legitimate government interest; specifically to protect the health, safety, and welfare of its citizens. 307 N.C. at 429-430, 298 S.E.2d at 691 . The identical interest to protect public welfare applies in this case. The Town of Carolina Beach enacted Section 3-5 to protect the health, safety, and welfare of its citizens, therefore it is reasonably related to a legitimate government interest. This argument is without merit.
In his fourth argument, defendant contends the trial court erred in not dismissing the charge of resist, delay, and obstruct a public officer. We disagree.
Defendant first contends that since Section 3-5 of the town ordinances was not valid he was entitled to resist an unlawfularrest. As discussed above, the ordinance was valid and therefore defendant was not entitled to resist the officer. This argument is without merit.
Defendant next argues he was merely following Officer Gray's instructions when he rode the horse back to retrieve his identification and he did not resist arrest. Defendant was charged under N.C. Gen. Stat. § 14-223 for resist, delay or obstruct a public officer in discharging a duty of his office. When a defendant's motion to dismiss for insufficiency of the evidence is denied the appellate court must consider all the evidence in the light most favorable to the State. State v. Garcia, 358 N.C. 382, 412-413, 597 S.E.2d 724, 746 (2004), cert. denied, ___ U.S. ___, 161 L. Ed. 122 (2005). The evidence at trial tends to show that Officer Gray instructed defendant to dismount the horse and that defendant then proceeded to trot his horse away from Officer Gray and down the street. This conduct constituted a wilful and intentional resistance and obstruction of Officer Gray in discharging a duty of his office as a police officer of the Town of Carolina Beach. This argument is without merit.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e)
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