{ "id": 11792467, "name": "CYNTHIA ROYAL MAYNOR, Plaintiff v. ONSLOW COUNTY, Defendant", "name_abbreviation": "Maynor v. Onslow County", "decision_date": "1997-08-05", "docket_number": "No. COA96-1237", "first_page": "102", "last_page": "109", "citations": [ { "type": "official", "cite": "127 N.C. App. 102" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "374 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "92 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526878 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0331-01" ] }, { "cite": "65 L. Ed. 2d 1124", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "447 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6252517, 6250630, 6250342, 6252200, 6250927, 6251921, 6251602, 6251284, 6253213, 6252831 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/447/0929-08", "/us/447/0929-02", "/us/447/0929-01", "/us/447/0929-07", "/us/447/0929-03", "/us/447/0929-06", "/us/447/0929-05", "/us/447/0929-04", "/us/447/0929-10", "/us/447/0929-09" ] }, { "cite": "612 F.2d 821", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1411577 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/612/0821-01" ] }, { "cite": "380 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1989, "pin_cites": [ { "page": "603" }, { "page": "603" }, { "page": "606" }, { "page": "605" }, { "page": "606" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527384 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/94/0453-01" ] }, { "cite": "269 U.S. 385", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 186255 ], "weight": 3, "year": 1926, "pin_cites": [ { "page": "391" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/us/269/0385-01" ] }, { "cite": "90 L. Ed. 2d 205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "475 U.S. 1132", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6438898, 6439091, 6438990, 6439239 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/1132-01", "/us/475/1132-03", "/us/475/1132-02", "/us/475/1132-04" ] }, { "cite": "475 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196723 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/0041-01" ] }, { "cite": "953 F.2d 140", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10516906 ], "year": 1991, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/f2d/953/0140-01" ] }, { "cite": "50 L. Ed. 2d 155", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6975 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0873-01" ] }, { "cite": "427 U.S. 50", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174622 ], "weight": 9, "year": 1976, "pin_cites": [ { "page": "62" }, { "page": "321" }, { "page": "59" }, { "page": "319" }, { "page": "60" }, { "page": "320", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/427/0050-01" ] }, { "cite": "310 U.S. 88", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6137179 ], "weight": 2, "year": 1940, "pin_cites": [ { "page": "97" }, { "page": "1100" } ], "opinion_index": 0, "case_paths": [ "/us/310/0088-01" ] }, { "cite": "392 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308416, 5304771, 5309702, 5307243, 5304989 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0486-04", "/nc/326/0486-03", "/nc/326/0486-01", "/nc/326/0486-05", "/nc/326/0486-02" ] }, { "cite": "386 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "443" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523434 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0533-01" ] }, { "cite": "240 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "294 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571110 ], "year": 1978, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0146-01" ] } ], "analysis": { "cardinality": 800, "char_count": 16012, "ocr_confidence": 0.745, "pagerank": { "raw": 5.43340033115859e-07, "percentile": 0.9449591462668286 }, "sha256": "ee612f01057716a431e56cc03fbdd17df3692b3a39f91ac78052a37c5d8c5a68", "simhash": "1:9a3e846204c37290", "word_count": 2603 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, Mark D., and TIMMONS-GOODSON concurred in this opinion prior to 31 July 1997." ], "parties": [ "CYNTHIA ROYAL MAYNOR, Plaintiff v. ONSLOW COUNTY, Defendant" ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiff appeals from the superior court order dismissing her action seeking to prevent enforcement of Onslow County\u2019s Ordinance to Regulate Adult Businesses (the Ordinance) and enjoining her from operating the adult business, The Doll House. We affirm the trial court.\nPlaintiff 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:\n[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 ....\nOnslow County Code. The resolution also provides that \u201cit 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. ...\u201d Id.\nAu adult business as defined by the Ordinance is \u201cany 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.\u201d 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:\n(ii) No adult business shall be permitted in any building:\n(a) located within 1000 feet in any direction from a building used as a dwelling.\n(b) located within 1000 feet in any direction from a building in which an adult business or a sexually oriented business is located.\n(c) located within 1000 feet in any direction from a building used as a church, synagogue, or other house of worship.\n(d) located within 1000 feet in any direction from a building used as a public school or as a state licensed day care center.\n(e) located within 1000 feet in any direction from any lot or parcel on which a public playground, public swimming pool, or public park is located.\nOnslow County Code, Art. V(ii).\nThe Ordinance defines specified anatomical areas \u201cas less than completely and opaquely covered human genitals, pubic regions, buttocks and female breasts below a point immediately above the top of the areola.\u201d Onslow County Code, Art. IV(I).\nIn an affidavit made part of the record, plaintiff acknowledges that The Doll House is located within one thousand feet of a residence. In her complaint, plaintiff alleges that if the Ordinance is enforced, it will result in the closing of The Doll House.\nOn 8 August 1994, the County zoning officer sent plaintiff a letter informing her that the Ordinance would take effect on 21 September 1994 and that any nonconforming businesses \u201cshall be discontinued.\u201d A copy of the Ordinance was attached to the letter. On 20 September 1994, plaintiff filed the present action. Defendant answered and counterclaimed seeking an injunction enforcing the Ordinance on The Doll House.\nBoth plaintiff and defendant moved for summary judgment. The trial court received briefs and affidavits and heard arguments from the parties. The court found there were no genuine issues of material fact and found defendant County was entitled to judgment as a matter of law. The court enjoined plaintiff from operating The Doll House and dismissed her civil action. Plaintiff appeals.\nAs a preliminary matter, we note that it appears from the record that plaintiff may not be the real party in interest in this matter. Pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 17(a) (1996 Cum. Supp.), every claim \u201cshall be prosecuted in the name of the real party in interest.\u201d All of the pleadings indicate that plaintiff \u201cmanages and operates\u201d The Doll House. The record is unclear as to whether plaintiff owns or has a proprietary interest in The Doll House. An agent of the owner is not a real party in interest and cannot maintain an action without the owner. Booker v. Everhart, 294 N.C. 146, 154, 240 S.E.2d 360, 364 (1978). However, since neither party raises this issue and for the purposes of this appeal, we treat plaintiff as if she is appropriately the real party in interest.\nPlaintiff argues that the County was precluded from enacting this Ordinance because it did not have a comprehensive zoning plan. We disagree. Counties may enact ordinances regulating land use in two fashions: one, pursuant to a comprehensive zoning plan, N.C. Gen. Stat. \u00a7 153A-341 (1991) and two, pursuant to their police powers, N.C. Gen. Stat. \u00a7 153A-121 (1991). In the present case, there is no evidence in the record that Onslow County has a comprehensive zoning plan. In its answer, defendant admits it does not have a formal countywide master zoning plan document in place. Thus we focus solely on the county\u2019s police powers. Our legislature delegated to counties the power to make ordinances to \u201cdefine, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the county.\u201d N.C. Gen. Stat. \u00a7 153A-121(a). When a county adopts an ordinance designed to promote the health, safety and welfare of the county\u2019s residents, N.C. Gen. Stat. \u00a7 153A-121 empowers the county to adopt such ordinance without complying with the procedural safeguards provided in N.C. Gen. Stat. \u00a7 153A-341.\nIn Summey Outdoor Advertising v. Henderson County, 96 N.C. App. 533, 386 S.E.2d 439 (1989) disc. review denied, 326 N.C. 486, 392 S.E.2d 101 (1990), this Court upheld a Henderson County ordinance regulating the location and placement of outdoor advertising. We held that defendant\u2019s failure to adopt a countywide zoning ordinance did not preclude defendant county from regulating outdoor advertising signs under N.C. Gen. Stat. \u00a7 153A-121. Summey, 96 N.C. App. at 538, 386 S.E.2d at 443.\nWith the present Ordinance, the Commissioners have regulated the location of adult and sexually oriented businesses. They have not prohibited them. Further, their stated purpose in doing so is for \u201cpromoting the health, safety, morals and general welfare of the citizenry of Onslow County.\u201d Onslow County Code, Art. II. We hold the Onslow County Ordinance to be well within the parameters of N.C. Gen. Stat. \u00a7 153A-121.\nPlaintiff next contends that the Ordinance is unconstitutionally overbroad and vague.\nAn overly broad statute or ordinance is one \u201cwhich does not aim specifically at evils within the allowable area of State control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press.\u201d Thornhill v. Alabama, 310 U.S. 88, 97, 84 L. Ed. 1093, 1100 (1940). In her brief, plaintiff cites no protected freedom which is threatened by the Ordinance. Furthermore, it is clear from the County Commission\u2019s 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. \u201cThe mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating [an] ordinance[ ].\u201d Young v. American Mini Theaters, Inc., 427 U.S. 50, 62, 49 L. Ed. 2d 310, 321, reh\u2019g denied, 429 U.S. 873, 50 L. Ed. 2d 155 (1976). It is within the constitutional powers of a county or municipality to adopt regulations which limit the areas in which adult entertainment establishments may operate. D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 145 (4th Cir. 1991); Young, 427 U.S. 50, 49 L. Ed. 2d 310; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, reh\u2019g denied, 475 U.S. 1132, 90 L. Ed. 2d 205 (1986). Plaintiffs argument that the Ordinance is overbroad fails.\nA statute or ordinance is vague if it \u201cforbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\u201d Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 328 (1926). A vague statute fails to inform those to whom it is directed of its application to them and therefore violates due process of law. Id.\nPlaintiff argues the definition of \u201cadult business\u201d is vague. Adult business is defined as:\nany 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.\nOnslow County Code, Art. IV(c); see also, Art. V(A)(I). Plaintiff argues that numerous otherwise legal actions are conceivably prohibited from being conducted within 1000 feet of each other. Plaintiff lists doctors\u2019 offices, health clubs, school locker rooms, and diaper changing stations as possibly running afoul of the Ordinance. We need not consider these arguments. Plaintiff acknowledged in her pleadings that the Ordinance applies to her. Any element of vagueness has not affected her. To the extent that plaintiffs objection to the Ordinance is predicated on inadequate notice resulting in a denial of due process, her objections are rejected. Young, 427 U.S. at 59, 49 L. Ed. 2d at 319.\nThe plaintiffs in Young argued that because the ordinance impacted communication protected by the First Amendment, they had standing to raise the vagueness issue although there was no uncertainty about the applicability of the ordinance to them. Id. Unpersuaded that the zoning ordinance in question would have a deterrent effect on the exhibition of films protected by the First Amendment, the Supreme Court rejected this argument. The Court held\nif the statute\u2019s deterrent effect on legitimate expression is not \u201cboth real and substantial,\u201d and if the statute is \u201creadily subject to a narrowing construction by the state courts,\u201d the litigant is not permitted to assert the rights of third parties.\nId. at 60, 49 L. Ed. 2d at 320 (citation omitted).\nPlaintiff here fails to show any effect by this Ordinance on protected communication. Plaintiff does not have standing to raise this constitutional argument.\nPlaintiff argues that Treants Enterprises, Inc. v. Onslow County, 94 N.C. App. 453, 380 S.E.2d 602 (1989), the escort service case, controls the present case. We disagree. In Treants, the Onslow County ordinance in question purported to regulate escort services. The ordinance required operators to apply for licenses and established a \u201cregistry\u201d of employees in the county sheriff\u2019s department. Id. at 455, 380 S.E.2d at 603. In addition the ordinance required the businesses to keep records of client or customer transactions and to make these records available to the sheriff\u2019s department. Id. at 456, 380 S.E.2d at 603. This Court found the ordinance was void for both vagueness and overbreadth. Id. at 461, 380 S.E.2d at 606. We held the ordinance impermissibly infringed upon the First Amendment right of citizens to freedom of association by imposing \u201cthe tangible presence of the State in the social affairs of its citizens each time a citizen wishes to utilize the services of an escort.\u201d Id. at 459, 380 S.E.2d at 605. In addition, the ordinance defined escort as \u201c \u2018[a]ny person who, for hire or reward, accompanies others to or about social affairs, entertainment or places of amusement.\u2019 \u201d Id. at 461, 380 S.E.2d at 606. The Court found that the term \u201cescort\u201d was susceptible to many other connotations and that persons of common intelligence would have to guess at its applicability. Id.\nAs we stated above, Maynor cites no constitutional right of hers which is threatened by the Ordinance at issue. Furthermore, the Ordinance is a regulation of the place and manner of expression only and is not violative of the First Amendment. See also, Hart Book Stores v. Edmisten, 612 F.2d 821 (4th Cir. 1979), cert. denied, 447 U.S. 929, 65 L. Ed. 2d 1124 (1980). Here plaintiff concedes the Ordinance\u2019s applicability to her, and unlike Treants, no one is required to guess as to the Ordinance\u2019s applicability to her.\nFinally, we summarily reject plaintiff\u2019s argument that the state has preempted the county with passage of Article 26A of Chapter 14 of the North Carolina General Statutes. Neither of plaintiffs two assignments of error assigns preemption as a legal basis of error. Since no assignment of error corresponds to the issue raised, it is not properly before us. N.C.R. App. P. 10(a) (1997); Kimmel v. Brett, 92 N.C. App. 331, 374 S.E.2d 435 (1988).\nIn conclusion, we hold the Ordinance is a valid exercise of the powers granted to the County by N.C. Gen. Stat. \u00a7 153A-121 and that plaintiff\u2019s constitutional challenge to the Onslow County Ordinance fails. The trial court did not err in dismissing plaintiffs case or in enforcing the Ordinance upon her.\nAffirmed.\nJudges MARTIN, Mark D., and TIMMONS-GOODSON concurred in this opinion prior to 31 July 1997.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "CYNTHIA ROYAL MAYNOR, Plaintiff v. ONSLOW COUNTY, Defendant\nNo. COA96-1237\n(Filed 5 August 1997)\n1. Parties \u00a7 12 (NCI4th)\u2014 agent of owner \u2014 not real party in interest\nAn 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.\n2. Municipal Corporations \u00a7 332 (NCI4th); Counties \u00a7 86 (NCI4th)\u2014 absence of comprehensive zoning ordinance\u2014 ordinance regulating location of adult businesses\nThe 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. \u00a7 153A-121. Furthermore, the ordinance was a valid exercise of the county\u2019s police powers.\n3. Constitutional Law \u00a7 64 (NCI4th); Municipal Corporations \u00a7 332 (NCI4th)\u2014 location of adult businesses \u2014 ordinance not overbroad\nA 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.\n4. Constitutional Law \u00a7 49 (NCI4th)\u2014 vagueness of ordinance \u2014 absence of standing to challenge\nThe manager of an adult business did not have standing to argue that the definition of \u201cadult business\u201d 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.\n5. Appeal and Error \u00a7 419 (NCI4th)\u2014 preemption issue\u2014 absence of assignment of error\nWhere 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).\nAppeal 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.\nLanier and Fountain, by Keith E. Fountain, for plaintiff appellant.\nShipman & Associates, L.L.P., by Gary K. Shipman, C. Wes Hodges, II, and Carl W. Thurman, III, for defendant appellee." }, "file_name": "0102-01", "first_page_order": 138, "last_page_order": 145 }