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Crump v. City of Tropeano

United States District Court, W.D. North Carolina, Charlotte Division

October 13, 2017

CITY OF CHARLOTTE and D. TROPEANO, Individually, Defendants.


          Graham C. Mullen, :s United States District Judge.

         This matter is before the Court upon Plaintiff's Motion for Partial Summary Judgment (Doc. No. 12) and Defendants' Motion for Summary Judgment (Doc. No. 10). These motions are fully briefed and ripe for disposition.


         Plaintiff Marcus Crump shines shoes for a living at No Grease, Inc., a barbershop located in one of several street-level suites that surround the Spectrum Center, the largest arena in the city of Charlotte. Crump shines shoes at a special chair inside the barbershop. With permission from No Grease's owners, Crump sometimes sets up a display chair outside of the barbershop on the sidewalk immediately adjacent to the shop. Crump's display includes a folding chair, small table, and umbrella affixed to the chair. The display sits against the exterior wall of No Grease. Crump sometimes sits in or next to the chair, smokes a cigarette and works on shoes that have been left for care, or the shoes customers remove for polishing while they get a haircut. Crump uses this display only to advertise his services. His customers do not sit in this chair outside of the barbershop to have their shoes shined. Instead, Crump takes the customer inside of the barbershop and uses a special shoe shine chair that No Grease's owners have set up there. As part of his arrangement with No Grease, Crump pays the barbershop's owners a percentage of his collected fee from each shoe shine or repair.

         The barbershop is located inside an area that the Defendant City of Charlotte defines in its ordinances as a “congested business district.” Section 6-436 of the City Code of Ordinances restricts “peddling” within the congested business district. Peddling is defined by the ordinance as:

the sale or offering for sale at retail on foot or from any vehicle where it is proposed by such person so offering or selling such article of merchandize to deliver the article of merchandise to the purchaser instantly upon receipt of the purchase price.

         Section 6-431. (emphasis added).

         In August of 2012, Defendant Tropeano, on-duty as a bicycle patrol officer with the Charlotte-Mecklenburg Police Department (CMPD), issued Crump a citation for allegedly peddling within the business district, in violation of City of Charlotte Ordinance § 6-436. Crump was convicted in District Court, but his lawyer appealed, as Crump had no inventory of merchandise or goods, but just offered shoe shines and repairs inside the barber shop. The District Attorney apparently agreed, and dismissed the citation on December 10, 2012. The Notice of Dismissal read that the charge would be “hard to sell to [a] jury, ” due to “MA inventory.” Crump was told by the clerk's office that “MA” stood for “missing actual.”

         On January 21, 2013, Plaintiff set up his shoe shine display outside of No Grease to advertise his services. Near his shoe shine chair, Crump had some brushes and polish, tools that he normally used to shine his customers' shoes as he sat and smoked. The brushes and shoe polish were not for sale; Crump did not display any “for sale” signs on or near the display. While Crump was sitting in the display chair, three CMPD bicycle patrol officers, including Tropeano, approached. Tropeano confronted Crump by stating, “Didn't the judge tell you [that] you couldn't be out here.” Crump explained that the previous case had been dismissed.

         Tropeano told Crump that the prior dismissal “didn't matter.” Crump tried to explain that he was not “peddling” anything, and had permission from No Grease's owners to advertise the shop's shoe-shine service with the display chair. As Tropeano and Crump disagreed, one of No Grease's owners, Damien Johnson, came outside and spoke to Tropeano. Johnson informed Tropeano that that Crump was a No Grease “employee” and had permission to set up the display outside of the barbershop, and that Crump's display was on the portion of the sidewalk No Grease had available for use under its lease. Ignoring Johnson's explanation that Crump worked for the barber shop, Tropeano arrested Crump for peddling in a congested business district without a permit. Although the warrant did not specify the ordinance violated, City of Charlotte Ordinance § 6-432 prohibits peddling without a license. Specifically, the ordinance states:

It shall be unlawful for any person required to have a license to peddle any article of merchandise upon the streets or sidewalks of the city until such person shall have first secured a proper license to peddle the articles of merchandise, . . .

         City of Charlotte Ordinance § 6-432. (emphasis added). On April 25, 2013, the charge against Crump was dismissed.

         Plaintiff filed the present Complaint in state court, alleging malicious prosecution and prosecution in violation of the Fourth Amendment. Defendants subsequently removed the case to this Court. Plaintiff now moves for partial summary judgment as to the liability of Defendant Tropeano.[1] The Defendants have moved for summary judgment as to both claims.

         II. ...

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