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Mangum v. Town of Wrightsville Beach

United States District Court, E.D. North Carolina, Southern Division

August 8, 2019

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,
v.
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.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This 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.

         STATEMENT OF THE CASE

         Plaintiffs, 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 and defamation.

         On July 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 at 18).[1]

         STATEMENT OF THE FACTS

         The facts alleged by plaintiffs as relevant to the resolution of the instant motion may be summarized as follows.

         Plaintiff 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).

         Plaintiff 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).

         Thereafter, 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. ¶¶ 83-106).

         On 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 ...


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