State v. Baggett

GREENE, Judge.

The State appeals from the superior court’s order affirming the district court’s dismissal of criminal charges against Roy Ellis Baggett and Ed Penuel (collectively, Defendants).

Defendants own and operate Tobie’s Lounge, a topless bar located less than one mile outside the city limits of Jacksonville, North Carolina, in Onslow County. On 26 August 1997, Defendants were each charged with “knowingly and intentionally operating] an adult business known as Tobie’s Lounge within 1,000 feet of a building used as a residence” in violation of Onslow County Ordinance § 8-205. Defendants each filed a motion to dismiss the charges on 30 September 1997. The district court allowed Defendants’ motions to dismiss on 19 November 1997, and the State gave notice of appeal to the superior court. On 27 February 1998, the superior court affirmed dismissal of the charges against Defendants. The State appeals from the superior court’s order.

Before addressing the merits of the State’s appeal, we note that our scope of review on appeal is confined to properly presented assignments of error. Rogers v. Colpitts, 129 N.C. App. 421, 499 S.E.2d 789 (1998). Rule 10 of the Rules of Appellate Procedure requires that “[e]ach assignment of error shall. . . state plainly, concisely and without argumentation the legal basis upon which error is assigned.” N.C.R. App. P. 10(c)(1). One purpose of this rule is to “identify for the appellee’s benefit all the errors possibly to be urged on appeal... so that the appellee may properly assess the sufficiency of the proposed record on appeal to protect his position.” Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988).

In this case, the State’s only assignment of error is: “The trial court acted incorrectly as a matter of law in affirming the District Court’s ruling dismissing the above referenced charges.” The State failed to set forth in its assignment of error the legal basis on which it contends the trial court erred, and has thereby subjected this appeal to dismissal. See Rogers, 129 N.C. App. at 423, 499 S.E.2d at 790 (dismissing appeal for failure to state the legal basis on which error was assigned). The State did include, in its Notice of Appeal to this Court, the legal basis on which it challenged the trial court’s ruling, noting its contention that the trial court erred “because the Ordinance in question is a police power ordinance .... The city of Jacksonville has no jurisdiction to enact police power ordinances in [its extraterritorial jurisdiction]. Therefore, Tobie’s Lounge is not located within the [county] ‘exclusive of the jurisdiction of any incorporated municipality.’ ” Although including this information in the notice of appeal does not cure the State’s inadequate assignment of error, it did inform the appellees of the issues to be raised and thereby allowed the appellees to protect their interests by assessing the sufficiency of the proposed record on appeal. Accordingly, in our discretion, we review the merits of the State’s appeal. N.C.R. App. P. 2 (providing that this Court may “suspend or vary the requirements or provisions of any of these rules” in order to “prevent manifest injustice” or “expedite decision in the public interest”).

For purposes of this appeal, we assume that Tobie’s Lounge violates the Onslow County adult business ordinance. Accordingly, the only issue is whether the Onslow County adult business ordinance applies to businesses, such as Tobie’s Lounge, located within the area one mile outside Jacksonville’s city limits.

Article 6 (“Delegation of Police Powers”) of Chapter 153A (“Counties”) provides: “A county may by ordinance define, 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; and may define and abate nuisances.” N.C.G.S. § 153A-121(a) (1991). The county’s authority under Article 6 extends “to any part of the county not within a city.” N.C.G.S. § 153A-122 (1991). It follows that Onslow County has statutory authority to enact an ordinance regulating all businesses located outside the city limits of Jacksonville.¹ The remaining question is whether Onslow County did so. See Town of Lake Waccamaw v. Savage, 86 N.C. App. 211, 356 S.E.2d 810 (holding that town was authorized to exercise extraterritorial jurisdiction but had not done so), disc. review denied, 320 N.C. 797, 361 S.E.2d 89 (1987).

The Onslow County adult business ordinance, enacted in 1992, provides:

Sec. 8-201. Authority and jurisdiction.

The provisions of this article are adopted by the county board of commissioners under authority granted by the General Assembly of the State of North Carolina, in Chapter 153A, (45-50) and further Article VI of Chapter 153A, Section 135 of the General Statutes. From and after the effective date hereof, this article shall apply to every building, lot, tract or parcel of land within the county exclusive of the jurisdiction of any incorporated municipality (as herein stated) ....

Onslow County, N.C., Code art. VII, § 8-201 (1992) (emphasis added).

In construing ordinances, we adhere to fundamental principles of statutory construction. Hayes v. Fowler, 123 N.C. App. 400, 404, 473 S.E.2d 442, 445 (1996). Where the language employed is clear and unambiguous, there is “no room for judicial construction.” Avco Financial Services v. Isbell, 67 N.C. App. 341, 343, 312 S.E.2d 707, 708 (1984). Where the language employed is ambiguous, however, we must strictly construe language creating a criminal offense. State v. Clemmons, 111 N.C. App. 569, 572, 433 S.E.2d 748, 750, cert. denied, 335 N.C. 240, 439 S.E.2d 153 (1993); see also Davidson County v. City of High Point, 321 N.C. 252, 257, 362 S.E.2d 553, 557 (1987) (“Statutorily granted powers are to be strictly construed.”).

In this case, the Onslow County adult business ordinance explicitly applies only to businesses located within Onslow County “exclusive of the jurisdiction” of Jacksonville. This phrase is ambiguous because Jacksonville has “extraterritorial jurisdiction” over areas within one mile of its city limits. See N.C.G.S. § 160A-360(a) (Supp. 1998) (providing that an incorporated municipality may extend its jurisdiction outside its borders by one to three miles); N.C.G.S. § 160A-193 (1994) (giving municipalities “authority to summarily remove, abate, or remedy everything in the city limits, or within one mile thereof, that is dangerous or prejudicial to the public health or public safety”). It is therefore unclear whether the Onslow County adult business ordinance applies to businesses outside Jacksonville’s city limits, or whether it applies only to those businesses outside Jacksonville’s extraterritorial jurisdiction. Accordingly, strictly construing Onslow County’s adult business ordinance as written, it does not apply to businesses located within Jacksonville’s extraterritorial jurisdiction. Because Tobie’s Lounge is located within Jacksonville’s extraterritorial jurisdiction, it follows that the trial court correctly dismissed the charges against Defendants.

Affirmed.

Judge HORTON concurs. Judge LEWIS dissents.

1 . Previous cases of this Court have established that Onslow County enacted its adult business ordinance pursuant to its Chapter 153A, Article 6 police power jurisdiction. See Maynor v. Onslow County, 127 N.C. App. 102, 106, 488 S.E.2d 289, 292, appeal dismissed, 347 N.C. 268, 493 S.E.2d 458, and cert. denied, 347 N.C. 400, 496 S.E.2d 385 (1997); Onslow County v. Moore, 129 N.C. App. 376, 382, 499 S.E.2d 780, 785, disc. review denied, 349 N.C. 361, — S.E.2d —, — (1998). In addition to this statutory authority to impose its ordinances outside the Jacksonville city limits, the Jacksonville city council specifically adopted a resolution granting Onslow County the authority to “enforc[e] its adult business ordinance” against businesses located within Jacksonville’s extraterritorial jurisdiction, the area one mile outside Jacksonville’s city limits. Jacksonville, N.C., Res. 96-03, Regular Sess. (1996).