United States District Court, E.D. North Carolina, Southern Division
CHRISTOPHER T. MANGUM, individually and d/b/a/ Wrightsville Beach Jet Ski Rentals, WRIGHTSVILLE BEACH JET SKI RENTALS, INC., MITCHELL CARSON SEITTER, individually and d/b/a Carolina Coast Watersports, LLC, and CAROLINA COAST WATERSPORTS, LLC, Plaintiffs,
TOWN OF WRIGHTSVILLE BEACH, a North Carolina Corporation and Body Politic, TIMOTHY OWENS, individually and in his official capacity as Town Manager, and JOHN WESSELL, individually and in his official capacity as Town Attorney, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiffs' ex parte motion
for temporary restraining order. (DE 19). For the reasons
that follow, plaintiffs' motion is denied.
OF THE CASE
who are in the jet ski rental business, initiated this action
February 16, 2019, filing complaint pursuant to 42 U.S.C.
§ 1983 seeking declaratory judgment, preliminary and
permanent injunction, and damages, asserting as follows:
This action challenges the constitutional authority of the
Town of Wrightsville Beach to demand a $500.00 non-refundable
“appeal fee” from persons requesting appeals of
adverse zoning decisions; the Town's authority to enforce
zoning ordinances at the N.C. Wildlife Public Boating Access
Area, the adjacent [North Carolina Department of
Transportation] drawbridge right-of-way, and the public trust
waters of the adjoining Intracoastal Waterway; and further
challenges the lawfulness and constitutionality of the
Defendants' enforcement of Town ordinances against
Plaintiffs for alleged zoning violations arising out of the
use and enjoyment of those public lands and waters by
Plaintiffs and customers of their jet ski rental businesses.
(Compl. (DE 1) ¶ 1). More specifically, plaintiffs bring
18 claims against defendant Town of Wrightsville Beach
(“Town”), defendant Timothy Owens
(“Owens”), the Town manager, and defendant John
Wessell (“Wessell”), the Town attorney, based on
the above allegations, ranging from claims for violation of
plaintiffs' federal constitutional right to freedom of
speech, to North Carolina-based claims for civil conspiracy
17, 2019, plaintiffs filed ex parte motion for temporary
restraining order, arguing in part that following any
“notice of this filing, Defendants will undertake
efforts to enforce the criminal contempt remedies awarded by
the Superior Court in the August 2018 Contempt Order and seek
Plaintiff MANGUM's incarceration for to his failure to
satisfy the purge conditions which require payment of
punitive damages and attorney's fees to the Town”
and that “deprivation of a constitutional right, even
if only briefly, constitutes irreparable harm.” (DE 20
OF THE FACTS
facts alleged by plaintiffs as relevant to the resolution of
the instant motion may be summarized as follows.
Mangum operated a jet ski rental business for over 17 years,
many of those years alongside other jet ski rental
businesses, all of which utilized the boat ramp at the
state-owned public boating access area on Wrightsville Beach
as a location to launch rented jet skis into the public
waterway. (Compl. (DE 1) ¶ 25). In or around July 2015,
defendant Town began issuing plaintiff Mangum citations with
$50.00 civil penalties for alleged zoning violations whenever
he or his jet skis were seen in or around the N.C. Wildlife
Commission Public Boating Access Area, the adjacent N.C.
D.O.T. drawbridge right-of-way, and the adjoining Atlantic
Intracoastal Waterway. (Id. ¶ 47). Plaintiffs
allege the citations were inconsistent as to which town
ordinance gave rise to the violation, did not give proper
notice as required by state law, and specifically did not
give notice of defendant Town's policy requiring payment
of a nonrefundable $500.00 zoning appeal fee. (Id.
¶¶ 51-53, 55).
Mangum alleges he refused to pay $500.00 to appeal a $50.00
civil penalty and continued his attempts to appeal each
violation by following the procedures set forth on the
citations provided to him, which appeals were rejected. (DE
20 at 4 (citing Compl. (DE 1) ¶ 54)). Plaintiffs allege
that after initially informing plaintiff Mangum the civil
penalties were to be sent for collection under the state
debt-setoff procedures, defendant Town filed a lawsuit
against him and his company in the General Court of Justice,
Superior Court Division, of the County of New Hanover
(“state court”) to recover the civil penalties
and enjoin his use of the aforementioned areas. (Compl. (DE
1) ¶¶ 71, 73-82).
plaintiff Mangum and defendant Town entered into a consent
judgement wherein plaintiff Mangum was enjoined from
“operating a business involving the rental of jet skis
in the Town of Wrightsville Beach or in the Town's
extraterritorial jurisdiction.” (Id. ¶
74). Plaintiff Mangum then leased his equipment to plaintiff
Seitter and his company and appeared at the “public
boating access area . . . to ensure SEITTER safely and
properly” operated the equipment. (Id.
¶¶ 90-91). Plaintiffs allege that plaintiff Mangum
was not in violation of the consent judgement; however,
defendant Town filed motion to hold plaintiff Mangum in civil
contempt of court on July 26, 2018. (Id.
September 10, 2018, order of contempt was entered by the
state court, concluding that plaintiff Mangum had violated
the consent judgment, and ordering plaintiff to pay, by
October 10, 2018, $3, 580.00 ...