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STATE OF NORTH CAROLINA v. DESPERADOS, INC. and CYNTHIA L.
Filed: 5 December 2006
Nuisance--noise ordinance_-constitutionality--prior restraints on free speech
The trial court erred by concluding that a county noise ordinance was not void, and
defendants' convictions are vacated, because: (1) even though the ordinance prohibits sound
amplification only at certain levels and at certain times and was thus not unconstitutionally
overbroad, the ordinance improperly left exemption from the ordinance in the sole unguided and
unregulated discretion of the county commissioners; (2) the county was allowed to issue special
event permits in its discretion with no articulated standards, acting as an arbitrary prior restraint
on free speech; (3) although defendants appeal from their criminal convictions for violating the
ordinance and not from the denial of their request for a special use permit, when a licensing
statute allegedly vests unbridled discretion in a government official over whether to permit or
deny expressive activity, one who is subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license; and (4) once a defendant faces
prosecution under an ordinance, he is entitled to defendant himself by raising the constitutionality
of the ordinance.
Judge TYSON concurring in part and dissenting in part.
Appeal by defendants from judgments entered 13 January 2005 by
Judge Thomas D. Haigwood in the Superior Court in Beaufort County.
Heard in the Court of Appeals 15 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Barry H. Bloch, for the State.
Jeffrey S. Miller, for defendant-appellants.
A jury convicted defendant Cynthia Perez on twelve counts of
violating the Beaufort County noise ordinance, and defendant
Desperados, Inc., of violating the same statute on four occasions.
All violations occurred between 10 May 2003 and 15 February 2004.
The court sentenced Perez to thirty days in prison, suspended,
supervised probation for twenty-four months, a fine of $500 and a split sentence of seven days in custody on one of the counts, and
thirty days in prison, suspended, supervised probation for twenty-
four months, and a fine of $500 on each of the other ten counts.
Desperados received a $500 fine for each of the charges against it.
Defendants appeal. As discussed below, we vacate these
The evidence tended to show the following: Perez is president
of corporate defendant Desperados, Inc., which operates a nightclub
in Beaufort County. The club, known as Desperados, plays music on
many Friday nights and all Saturday nights, often showcasing live
bands. C.L. Summerlin, who owns a trailer park and residence
approximately 200 to 300 yards from the club, was the source of
almost all of the complaints about excessive noise from the club.
Several tenants of the trailer park testified that noise from the
club had disturbed them, but other park residents testified that
they had never heard any noise coming from Desperados. Deputy
sheriff Keith Owens and other officers testified that they had
measured sound levels at the club and issued citations when the
levels violated the county noise ordinance.
Defendants first argue that the ordinance is void because it
is overbroad. We do not agree.
On 7 April 2003, the Beaufort County Commissioners adopted a
noise ordinance, which in pertinent part prohibits sound
amplification, defined as:
Operate or allow operation of any sound
amplification equipment so as to create sound
levels exceeding 55 DBA or 65 dBC between 9:00
a.m. and 9:00 p.m. or exceeding 50 DBA or 60dBC between 9:00 p.m. and 9:00 a.m., as
measured anywhere outside of the boundary line
pf the person or persons making, permitting or
causing such noise. The foregoing limitations
on the operation of sound amplification
equipment shall not apply to special event
permit issued by the County of Beaufort, the
operation of horns, sirens, or other emergency
warning devices actually being used in
emergency circumstances. [sic]
The parties stipulated that Perez sought a special event permit
from the county commission but was denied. The record reflects
nothing about the grounds for the denial.
As this Court has noted:
Noise ordinances present a great deal of
problems in drafting and enforcing them
because the nature of sound makes resort to
broadly stated definitions and prohibitions
not only common but difficult to avoid.
People v. New York Trap Rock Corp., 57 N.Y.2d
371, 442 N.E.2d 1222, 1226, 456 N.Y.S.2d 711
(N.Y. 1982). A court may forbid enforcement
of a noise statute or ordinance for
overbreadth where it reaches more broadly
than is reasonably necessary to protect
legitimate state interests at the expense of
First Amendment freedoms. Reeves v. McConn,
631 F.2d 377, 383 (1980), reh'g denied, 638
F.2d 762 (5th Cir. 1981).
State v. Garren, 117 N.C. App. 393, 395-6, 451 S.E.2d 315, 317
(1994). This Court went on to quote Reeves:
When the city fears disruption, it may
prohibit conduct that actually causes, or
imminently threatens to cause, material and
substantial disruption of the community or
invasion of the rights of others. Or the city
may reasonably prohibit kinds or degrees of
sound amplification that are clearly
incompatible with the normal activity of
certain locations at certain times. But the
city may not broadly prohibit reasonably
amplified speech merely because of an
undifferentiated fear that disruption might
sometimes result. When First Amendmentfreedoms are involved, the city may protect
its legitimate interests only with precision.
Reeves, 631 F.2d at 388. Music, be it singing, from the radio,
played on a phonograph, etc., falls within these protected
freedoms. Garren, 117 N.C. App. At 396, 451 S.E.2d at 317. In
Garren, we held over-broad a noise ordinance that sought to ban
any singing, yelling, or the playing of any radio, amplifier,
musical instrument, phonograph, loudspeakers, or other device
producing sound regardless of their level of sound or actual impact
on a person. Id. The State argues first that the sound here was
not music, but simply noise; the record reflects otherwise and we
reject this contention. Here, by contrast with Garren, the
ordinance is much narrower, prohibiting sound amplification only at
certain levels and at certain times, and thus the ordinance is not
Defendants also argue that while sound amplification may be
regulated, the ordinance here improperly leaves exemption from the
ordinance in the sole unguided and unregulated discretion of the
county commissioners. Defendants contend that this ordinance is
unconstitutional because it allows the the County to issue
special event permits in its discretion with no articulated
standards, acting as an arbitrary prior restraint on free speech.
In Saia v. New York, 334 U.S. 558, 92 L. Ed. 1574 (1948), the
United States Supreme Court considered the constitutionality of an
ordinance that forbade the use of sound amplification devices
except with permission of the Chief of Police. Id. at 558, 92 L.Ed. at 1576. The plaintiff, a minister, was first granted a permit
to use a loud-speaker in a public park, but later denied an
additional permit after complaints by citizens. Id. at 559, 92 L.
Ed. at 1577. The Court in Saia held the ordinance unconstitutional
on its face because:
To use a loud-speaker or amplifier one has to
get a permit from the Chief of Police. There
are no standards prescribed for the exercise
of his discretion. The statute is not
narrowly drawn to regulate the hours or places
of use of loud-speakers, or the volume of
sound (the decibels) to which they must be
Id. at 560, 92 L. Ed. at 1577. This Court has recently summarized
the law regarding prior restraints on free speech:
A licensing [scheme] placing unbridled
discretion in the hands of a government
official or agency constitutes a prior
restraint and may result in censorship.
Lakewood v. Plain Dealer Pub. Co., 486 U.S.
750, 757, 100 L. Ed. 2d 771, 782, 108 S. Ct.
2138 (1988). Unbridled discretion naturally
exists when a licensing scheme does not impose
adequate standards to guide the licensor's
discretion. [Chesapeake B & M v. Harford
County, 58 F.3d 1005, 1009 (4th Cir. 1995).]
There is a significant distinction between
exercising discretion by passing judgment on
the content of any protected speech and
reviewing the general qualifications of each
license applicant"; the latter is a
ministerial action that is not presumptively
invalid. FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 229, 107 L. Ed. 2d 603, 621, 110 S.
Ct. 596 (1990) (plurality opinion). In
addition, a licensing scheme must not only
require a timely decision by the licensing
authority but also must assure a prompt final
judicial decision to immunize the deterrent
effect of an interim and possibly erroneous
denial of a license. Freedman v. Maryland,
380 U.S. 51, 58-59, 13 L. Ed. 2d 649, 654-55,
85 S. Ct. 734 (1965).
Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App.
603, 616-17, 592 S.E.2d 205, 214 (2004). Both parties cite State
v. Wiggins in support of their positions, specifically the
following language, discussing a statute that passed constitutional
It is universal in its application. Anyone
who does that which is prohibited by the
statute is subject to its penalty. It does
not confer upon an administrative official the
authority to issue, in his discretion, permits
to disturb public schools and, therefore, does
not invite or permit that type of
administrative discrimination against the
disseminators of unpopular ideas which was
condemned in Saia . . . .
State v. Wiggins, 272 N.C. 147, 158, 158 S.E.2d 37, 45 (1967).
Here, as discussed above, the ordinance is narrowly drawn, but
constitutionally flawed in that it allows the County to exercise
its discretion to issue a complete exemption in the form of a
special events permit, while prescribing no standards for the
exercise of that discretion. The record and briefs reveal nothing
about the process by which the commissioners grant or deny special
events permits, and thus we cannot say that the decision is made
without unbridled discretion. This ordinance presents the same
problem as the ordinance in Saia, and as discussed in Wiggins,
supra, by conferring authority on public officials to issue permits
in their unguided discretion. As such, the paragraph of the
ordinance establishing prohibitions and exemptions is an
impermissible prior restraint, which violates the First Amendment
of the United States Constitution. Because the paragraph of the
ordinance under which these defendants were convicted isunconstitutional, it cannot be the basis for their convictions,
which we hereby vacate.
The dissent suggests that defendants cannot appeal the
constitutionality of the ordinance due to the unbridled discretion
granted in the special use permit process because defendants appeal
from their criminal convictions for violating the ordinance rather
than from the denial of their request for a special use permit.
This conclusion is at odds with United States Supreme Court case
law. [W]hen a licensing statute allegedly vests unbridled
discretion in a government official over whether to permit or deny
expressive activity, one who is subject to the law may challenge it
facially without the necessity of first applying for, and being
denied, a license. Lakewood v. Plain Dealer Pub. Co., 486 U.S.
750, 756-57, 100 L. Ed. 2d 771, 782, 108 S. Ct. 2138 (1988). In
addition, once a defendant faces prosecution pursuant to an
ordinance, he is entitled to defend himself by raising the
constitutionality of that ordinance, as explained by the Court in
a case examining the constitutionality of an anti-picketing
The cases when interpreted in the light of
their facts indicate that the rule is not
based upon any assumption that application for
the license would be refused or would result
in the imposition of other unlawful
regulations. Rather it derives from an
appreciation of the character of the evil
inherent in a licensing system. The power of
the licensor against which John Milton
directed his assault by his 'Appeal for the
Liberty of Unlicensed Printing' is pernicious
not merely by reason of the censure of
particular comments but by reason of the
threat to censure comments on matters ofpublic concern. It is not merely the sporadic
abuse of power by the censor but the pervasive
threat inherent in its very existence that
constitutes the danger to freedom of
discussion. One who might have had a license
for the asking may therefore call into
question the whole scheme of licensing when he
is prosecuted for failure to procure it.
Thornhill v. Alabama, 310 U.S. 88, 97, 84 L. Ed. 1093, 60 S. Ct.
736, 741-42 (1940) (internal citation omitted) (emphasis supplied).
Similarly, in Lovell v. Griffin, the Court concluded that since the
ordinance at issue was void on its face, it was not necessary for
appellant to seek a permit under it . . . . [but she] was entitled
to contest its validity in answer to the [criminal] charge against
her. 303 U.S. 444, 452-53, 82 L. Ed. 949, 954 (1938).
Because of this conclusion, we need not address defendants'
other assignments of error.
Judge WYNN concurs.
Judge TYSON concurs in part, dissents in part by separate
TYSON, Judge concurring in part, dissenting in part.
I concur with the majority's holding that the ordinance is
narrowly drawn. I disagree with the majority's holding the
ordinance is constitutionally flawed in that it allows the County
to exercise its discretion to issue a complete exemption in the
form of a special events permit, while prescribing no standards for
the exercise of that discretion. The ordinance is not facially orper se unconstitutional. Defendants' criminal convictions should
be affirmed. I respectfully dissent.
I. Failure to Preserve
Defendants' argument that Beaufort County unconstitutionally
denied their application for a special event permit is not properly
before us. Defendants did not appeal for the denial of the permit
and did not apply for later permits. Defendants failed to properly
preserve any objection, assign error to, or present an argument on
appeal the ordinance is invalid because it was not kept on file in
the Clerk's Office. The trial court did not err by imposing a
sentence of thirty days as a Class 3, Level III misdemeanor and by
imposing a $500.00 fine per violation.
II. Constitutionality of Ordinance
The majority's opinion concludes the noise ordinance is
unconstitutional because the County has discretion to issue a
complete exemption by issuing a special event permit and the
ordinance does not contain standards to guide the County's
discretion. I disagree.
Statutes are presumed constitutional[.] State v. Watson,
169 N.C. App. 331, 337, 610 S.E.2d 472, 477 (2005). The words used
in a statute or ordinance are presumed to have plain meaning and
will be upheld if its meaning is ascertainable with reasonable
certainty by proper construction. State v. Taylor, 128 N.C. App.
616, 618-19, 495 S.E.2d 413, 415 (1998). If a statute is
susceptible to two interpretations, one constitutional and the
other unconstitutional, the former will be adopted. Id. A criminal statute is not rendered
unconstitutional by the fact that its
application may be uncertain in exceptional
cases, nor by the fact that the definition of
the crime contains an element of degree as to
which estimates might differ, or as to which a
jury's estimate might differ from defendant's,
so long as the general area of conduct against
which the statute is directed is made plain.
It is not violative of due process of law for
a legislature in framing its criminal law to
cast upon the public the duty of care and even
of caution, provided there is sufficient
warning to one bent on obedience that he comes
near the proscribed area. Nor is it unfair to
require that one who goes perilously close to
an area of proscribed conduct take the risk
that he may cross the line. 21 Am. Jur. 2d,
Criminal Law, § 17, p. 100.
State v. Dorsett, 3 N.C. App. 331, 336, 164 S.E.2d 607, 610 (1968)
(When the constitutionality of an ordinance attacked is clearly
criminal in nature and is subject to the rule of strict
construction, the courts must construe it with regard to the evil
which it is intended to suppress.). Criminal statutes will be
construed to effectuate the legislature's intent. Id. at 335, 164
S.E.2d at 609.
A. Delegation of Police Power to the County
A county may by ordinance regulate, restrict, or prohibit the
production or emission of noises or amplified speech, music, or
other sounds that tend to annoy, disturb, or frighten its
citizens. N.C. Gen. Stat. § 153A-133 (2005). The United States
Court of Appeals for the Fifth Circuit noted in Reeves v. McConn:
most citizens desire protection from
unreasonable or disruptive levels of noise on
the streets and from uninvited noise within
the privacy of their homes. We say nothing
today that prevents the city from granting
that protection . . . [T]he city mayreasonably prohibit kinds or degrees of sound
amplification that are clearly incompatible
with the normal activity of certain locations
at certain times.
631 F.2d 377, 388 (1980). This Court has upheld similar ordinances
against Constitutional challenges. State v. Garren, 117 N.C. App.
393, 396, 451 S.E.2d 315, 317-18 (1994) (Upheld noise ordinance
that prohibited load, raucous, and disturbing noise.); see Taylor,
128 N.C. App. at 618, 495 S.E.2d at 415 (Upheld noise ordinance
that stated, it shall be unlawful for any person to own, keep, or
have within the county an animal that habitually or repeatedly
makes excessive noises that tend to annoy, disturb, or frighten its
The majority's opinion correctly concludes the ordinance only
regulates sound amplification, neither the content nor delivery of
the message, and states, the ordinance is much narrower,
prohibiting sound amplification only at certain levels and at
certain times . . . . The majority's opinion mistakenly relies
upon Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750, 100 L. Ed.
2d 771 (1988), Thornhill v. Alabama, 310 U.S. 88, 84 L. Ed. 1093
(1940), and Lovell v. Griffin, 303 U.S. 444, 82 L. Ed. 949 (1938),
to strike down the facial constitutionality of the ordinance. All
three of these cases address unconstitutional ordinances chilling
the dissemination of speech content and delivery of the
information. Lakewood, 486 U.S. at 753, 100 L. Ed. 2d at 780
(ordinance required a permit for placement of news racks);
Thornhill, 310 U.S. at 92-93, 84 L. Ed. at 1096 (ordinance
prohibited loitering and picketing); Lovell, 303 U.S. at 447-48, 82L. Ed. at 951-52 (ordinance prohibited the distribution of
circulars, handbooks, advertising, or literature).
The County's noise ordinance neither chills nor prohibits free
speech nor dissemination of information. The County's noise
ordinance constitutes reasonable time, place, manner restrictions,
not a restriction on content. See State v. Petersilie, 334 N.C.
169, 183, 432 S.E.2d 832, 840 (1993) (Where a statute regulating
the time, place and manner of expressive activity is content-
neutral in that it does not forbid communication of a specific
idea, it will be upheld if the restriction is 'narrowly tailored to
serve a significant governmental interest,' and it 'leaves open
ample alternatives for communication.' (quoting Burson v. Freeman,
504 U.S. 191, 196, 119 L. Ed. 2d 5, 13 (1992); United States v.
Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 743-44 (1983))).
The majority's opinion also fails to cite or distinguish State
v. Smedberg, where this Court held constitutional the following
(a) Subject to the provisions of this section,
the creation of any unreasonably loud,
disturbing, and unnecessary noise in the city
is prohibited. Noise of such character,
intensity, and duration as to be detrimental
to the life or health of any individual is
(b) The following acts, among others, are
declared to be loud, disturbing, and
unnecessary noises in violation of this
section, but said enumeration shall not be
deemed to be exclusive, namely:
* * *
(14) Loudspeakers or amplifiers on vehicles.
The use of mechanical loudspeakers oramplifiers on trucks, airplanes, or other
vehicles for advertising or other purposes.
Provided that in the exercise of free speech,
loudspeakers or amplifiers may be used for
non-commercial purposes under the following
* * *
(b) It shall be unlawful for any person to
speak into a loudspeaker or amplifier within
the corporate limits of the city, when such
loudspeaker or amplifier is so adjusted that
the voice of the speaker is amplified to the
extent that it is audible at a distance in
excess of one hundred and fifty (150) feet
from the person speaking. Provided that the
Guilford County Health Department may, upon
obtaining a permit approved by the council,
use loudspeakers or amplifiers as part of its
31 N.C. App. 585, 586, 229 S.E.2d 841, 842 (1976) (emphasis
supplied), disc. rev. denied, 291 N.C. 715, 232 S.E.2d 207 (1977).
The challenged ordinance does not infringe
upon the constitutional right of free speech.
It is a valid exercise of the police power of
the municipality to promote public welfare and
safety. Specifically, the ordinance is a
reasonable regulation of the noise level
designed to protect the tranquility and well-
being of the citizens of Greensboro; it is
narrowly drawn and properly enforceable.
In Smedberg, we upheld the ordinance's constitutionality, even
though the Guilford County Health Department was exempted from the
restrictions in the ordinance. 31 N.C. App. at 587, 229 S.E.2d at
843. Under this precedent, presuming defendants' constitutional
argument was properly preserved, I vote to uphold the ordinance's
facial constitutionality and affirm defendants' convictions. The jury convicted defendants of violating the following
ordinance on ten occasions:
3. Sound Amplification: Operate or allow the
operation of any sound amplification equipment
so as to create sound levels exceeding 55 dBA
or 65 dBC between 9:00 a.m. and 9:00 p.m. or
exceeding 50 dBA or 60dBC between 9:00 pm and
9:00 a.m., as measured anywhere outside of the
boundary line of the person or persons making,
permitting or causing such noise. The foregoing limitations on the
operation of sound amplification equipment shall not apply to
special event permit issued by the County of Beaufort, the
operation of horns, sirens, or other emergency warning devises
actually being used in emergency circumstances.
. . . .
1. The violation of any provision of this
Ordinance shall constitute a misdemeanor and
shall be punished by a fine up to five
hundred dollars ($500.00) or imprisonment of
thirty (30) days or both fine and
imprisonment. Each day on which any violation
of this Ordinance shall continue shall
constitute a separate and distinct violation
Defendants solely appeal from their criminal conviction for
violations of the ordinance. Criminal penalties for violation of
the ordinance are presumed constitutional. Dorsett, 3 N.C. App. at
336, 164 S.E.2d at 610. Defendants failed to present an argument
that the criminal penalties for operation of sound amplification
exceeding 55 dBA or 65 dBC between 9:00 a.m. and 9:00 p.m. or
exceeding 50 dBA or 60 dBC between 9:00 p.m. and 9:00 a.m. as
measured from property of others are unconstitutional.
Beaufort County has a delegated, statutory right under the
State's police power to regulate the time, place, and manner of
sound, as long as the noise ordinance is not unconstitutionallyover broad. N.C. Gen. Stat. § 153A-133. The County's noise
ordinance is a constitutional, content-neutral, time, place, manner
restriction, as measured by the effect of defendants' conduct on
their neighbor's property. Petersilie, 334 N.C. at 183, 432 S.E.2d
at 840. This assignment of error is properly overruled.
Defendants also argue the ordinance is unconstitutional
because Beaufort County may grant or deny a special event permit to
exempt persons from the ordinance's regulations. Defendants'
argument is misplaced. Defendants applied only once for a special
event permit and did not appeal from its denial. Defendants appeal
solely from their criminal conviction for violation of the
ordinance and not from Beaufort County's denial of their special
event permit application. On the later violations, defendants
never filed an application for a special event permit despite their
knowledge of the process to seek a permit.
Defendants argue the ordinance's language that limitations on
the operation of sound amplification equipment shall not apply to
special event permit issued by the County of Beaufort is facially
unconstitutional. The constitutionality of this provision is not
properly before us. Defendants failed to appeal from Beaufort
County's denial of their special event permit application, and
waived any review of the application of the ordinance to their
activities. See Mann Media, Inc. v. Randolph Cty. Planning Bd.,
356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002) (a reviewing superior court
must sit in the posture of an appellate court on appeal from a
grant or denial of special use permit); see also County ofLancaster v. Mecklenburg County, 334 N.C. 496, 506, 434 S.E.2d 604,
611 (1993) (zoning permit applicant must appeal to the board of
adjustment if dissatisfied with zoning administrator's decision).
Defendants also failed to include its special permit
application or the County's denial of the application in the record
on appeal. Defendants never appealed from the County's denial of
the permit. This Court is unable to review the constitutionality
of the County's denial without an appeal and a proper record. This
assignment of error should be dismissed. See N.C.R. App. P.
10(a)(3) (2006) (the record on appeal in criminal actions shall
contain so much of the evidence as is necessary for an
understanding of all errors assigned).
Since the majority's opinion reverses defendants' conviction
on solely constitutional grounds for facial invalidity of the
ordinance, they do not reach defendants' remaining three arguments.
I find no error in defendants' convictions on any constitutional
grounds and address their remaining three arguments.
III. Public Inspection Requirement
Defendants argue the ordinance is void because the Clerk's
Office failed to keep it in an ordinance book available for public
inspection as required by N.C. Gen. Stat. § 153A-48. Defendants
assigned error to: (1) the trial court's overruling defendants'
objection that the certificate [on the ordinance] is signed by the
clerk of the board [of County Commissioners] and not the clerk of
the superior court and (2) the trial court's denial of defendants'motion to dismiss because a valid ordinance is kept in the office
of the clerk, and this one is not, and the undisputed evidence
B. Abandonment of Assigned Error
Defendants failed to argue the ordinance is invalid because
the certificate [on the ordinance] is signed by the clerk of the
board and not the clerk of the superior court. Defendants have
abandoned this assignment of error. See N.C.R. App. P. 28(b)(6)
(2006) (Assignments of error not set out in the appellant's brief,
or in support of which no reason or argument is stated or authority
cited, will be taken as abandoned.).
Defendants failed to object, obtain a ruling on the
ordinance's validity when the ordinance was admitted into evidence,
or argue that the ordinance is invalid because it was not being
kept on file in the Clerk of Superior Court's Office.
Under Rule 10 of the North Carolina Rules of Appellate
Procedure, [i]n order to preserve a question for appellate review,
a party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were
not apparent from the context. N.C.R. App. P. 10(b)(1) (2006).
Defendants failed to present a timely request, objection, or motion
on this assignment of error. This assignment of error is properly
IV. Sentencing Error
The majority's opinion holds the trial court erred in
sentencing defendants under a Class 3, Level III misdemeanor. I
N.C. Gen. Stat. § 14-4(a) (2005) provides:
Except as provided in subsection (b), if any
person shall violate an ordinance of a county,
city, [or] town . . . he shall be guilty of a
Class 3 misdemeanor and shall be fined not
more than five hundred dollars ($500.00). No
fine shall exceed fifty dollars ($50.00)
unless the ordinance expressly states that the
maximum fine is greater than fifty dollars
N.C. Gen. Stat. § 15A-1340.23(c) (2005) provides, Unless otherwise
provided for a specific offense, the authorized punishment for each
class of offense and prior conviction level is as specified in the
chart below. (Emphasis supplied). This statute lists the
punishment for a Class 3, Level III misdemeanor as one to twenty
The ordinance specifically provides:
the violation of any provision of this
ordinance shall constitute a misdemeanor and
shall be punished by a fine up to five hundred
dollars ($500.00) or imprisonment of thirty
(30) days or both fine and imprisonment. Each
day on which any violation of this Ordinance
shall continue shall constitute a separate and
distinct violation and offense.
N.C. Gen. Stat. § 15A-1340.23(c) expressly authorizes a
different punishment to be prescribed for a specific offense.
Beaufort County may establish greater punishment with a specific
offense in compliance with N.C. Gen. Stat. § 14-4(a). Pursuant to
N.C. Gen. Stat. § 14-4(a), the jury may find defendants guilty of
a Class 3 misdemeanor. The ordinance properly states the jury mayfind defendants guilty of a Class 3 misdemeanor and be sentenced to
imprisonment for a maximum of thirty days. The trial court did not
err in sentencing defendants as a Class 3, Level 3 misdemeanor.
This assignment of error is properly overruled.
V. Imposing Fines
Defendants contend the trial court erred in imposing fines of
$500.00 for each conviction. As previously noted, N.C. Gen. Stat.
§ 14-4(a) authorizes Beaufort County to impose fines. The County
expressly adopted a fine, up to a maximum of $500.00, for each
violation of the ordinance. The ordinance stated that each offense
shall constitute a separate and distinct violation. The trial
court did not err in imposing the maximum fines of five hundred
dollars for each conviction under the ordinance. This assignment
of error is properly overruled.
The majority's opinion correctly holds that the ordinance is
narrowly drawn and is not over broad, but erroneously holds the
ordinance to be facially or per se
failed to properly preserve and present an argument challenging the
constitutionality of the ordinance as applied to them. Defendants
also failed to preserve for appeal and properly assign error to the
validity of the ordinance.
The record on appeal does not contain defendants' application
for or the County's denial of the special event permit. Defendants
failed to appeal from that denial or to seek subsequent special
event permits to allow relief from the provisions of the ordinance. Defendants also failed to properly preserve any objection, assign
error to, or present an argument on appeal that the ordinance is
invalid because it was not kept on file in the Clerk's Office.
The trial court was lawfully authorized to impose the sentence
and fine under N.C. Gen. Stat. § 14-4(a), N.C. Gen. Stat. § 15A-
1340.23(c), and the ordinance. These assignments of error are
properly dismissed or overruled. Defendants received a fair trial
free from prejudicial errors they preserved, assigned, and argued
and their convictions should be affirmed. I respectfully dissent.
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