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South Blvd. Video & News Inc. v. Charlotte Zoning Board of Adjustment

April 21, 1998

SOUTH BLVD. VIDEO & NEWS, INC., PETITIONER-APPELLANT
v.
CHARLOTTE ZONING BOARD OF ADJUSTMENT AND CITY OF CHARLOTTE, RESPONDENT-APPELLEES



Appeal by petitioner from judgment, order, and permanent injunction entered 16 December 1996 and order of contempt entered 24 January 1997 by Judge Julia V. Jones in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 February 1998.

The opinion of the court was delivered by: McGEE, Judge.

Petitioner, a corporation leasing property located at 5920 South Boulevard in Charlotte, North Carolina appeals a 16 December 1996 judgment, order, and permanent injunction affirming the decision of the City of Charlotte's Zoning Board of Adjustment (Board) ordering petitioner to cease operation of an adult bookstore and adult mini-motion picture theater establishment and a 24 January 1997 order finding petitioner in civil contempt of the 16 December 1996 judgment.

In May 1995 petitioner obtained a permit from the City of Charlotte to conduct a business for the intended use of "video booths and retail sales." Handwritten on the permit was the notation: "Approval is [given] on the basis that the preponderance of inventory/sales will be non-adult in nature. Section 12.518 applies." At the time petitioner obtained this permit, an "adult establishment" was defined in Section 2.201 of the Charlotte zoning ordinance (ordinance) as: "Any structure or use of land which meets the definition of adult establishment as outlined in North Carolina General Statute Sec. 14-202.10."

N.C. Gen. Stat. § 14-202.10(2) (1993) defines "[a]dult establishment" as "an adult bookstore, adult motion picture theatre, adult mini motion picture theatre, adult live entertainment business, or massage business as defined in this section." The statute defines "adult bookstore" as a bookstore that either: (a) "receives a majority of its gross income during any calendar month from the sale of [adult] publications . . ."; or (b) "[has] as a preponderance of its publications books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section." (Emphasis added). The statute defines "[a]dult mini motion picture theater" as

an enclosed building with viewing booths designed to hold patrons which is used for presenting motion pictures, a preponderance of which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as defined in this section, for observation by patrons therein.

N.C. Gen. Stat. § 14-202.10(1) and (6) (1993).

On 18 January 1994 the City of Charlotte enacted Section 12.518 of the ordinance. In pertinent part, Section 12.518 states that:

(a) Any structure in which an adult bookstore or adult mini motion picture theater establishment is the principal or accessory use shall be separated by a distance of at least 1500 feet from any residential district, school, church, child care center, park or playground.

On 19 October 1995 a zoning inspection of the petitioner's business was conducted pursuant to an administrative inspection warrant. Based on evidence discovered during the inspection, the Charlotte Zoning Enforcement Code Inspector sent a notice of zoning violation to petitioner on 10 November 1995 and a clarification of the notice on 21 November 1995. The clarification stated that petitioner was an adult bookstore and mini motion picture theater located too close to protected areas. It is undisputed that petitioner's business was not separated by 1500 feet or more from the protected areas described in Section 12.518. Petitioner appealed to the Board.

On 11 June 1996 the Board concluded that petitioner was operating an "adult bookstore" and "adult mini-motion picture theater establishment" at 5920 South Boulevard in violation of the ordinance. Petitioner filed a petition for writ of certiorari with the Mecklenburg County Superior Court on 10 July 1996 and a writ of certiorari was issued on 23 July 1996. On 19 November 1996 the Board filed a motion for permanent injunction requiring petitioner to comply with the ordinance. On 2 December 1996 the trial court conducted a hearing on the Board's motion and determined that the Board had correctly concluded that petitioner was operating an "adult bookstore" and an "adult mini-motion picture theater establishment" at 5920 South Boulevard. Based on this determination, it entered a permanent injunction ordering petitioner to cease operation of and refrain from operating its current businesses (i.e. an "adult bookstore" and "adult mini-motion picture theater establishment") at 5920 South Boulevard.

Subsequently, respondents filed a motion to show cause asking that petitioner be held in contempt of court on 20 December 1996 on the basis that petitioner had "not ceased operation of and refrained from operating the businesses enjoined by [the] Permanent Injunction." In support of this motion, affidavits from zoning inspector David B. Barley and zoning administrator Robert Brandon were submitted. Barley stated in his affidavit that during a visit to the store the previous day, he observed changes in the store's stock and layout, including:

a. The free standing sign outside South Blvd. Video & News read "South Blvd. Video and News Exotica." During prior observations the sign read "South Blvd. Video and News Erotica."

c. The racks of magazines in the front portion of the store that previously had been filled entirely with adult magazines now are stocked with approximately 50% adult magazines and 50% comic books . . . .

e. The racks of video tape box covers in the front portion of the store that previously had been filled entirely with box covers for adult video tapes now are stocked with approximately 50% adult video tape box covers and 50% non-adult or general circulation video tape movies. The ...


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