Adams v. The City of RaleighÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-782
Filed: 16 February 2016
Wake County, No. 14 CVS 8137
KENNETH C. ADAMS, Plaintiff,
v.
THE CITY OF RALEIGH, Defendant.
Appeal by plaintiff from Order entered 30 March 2015 by Judge James E.
Hardin, Jr. in Wake County Superior Court. Heard in the Court of Appeals 2
December 2015.
MEYNARDIE & NANNEY, PLLC, by Joseph H. Nanney, for plaintiff-
appellant.
City Attorney Thomas A. McCormick, by Deputy City Attorney Hunt K. Choi,
for defendant-appellee.
ELMORE, Judge.
Kenneth Adams (plaintiff) was arrested for violating the City of Raleigh’s
Amplified Entertainment Permit (AEP) Ordinance. After the charge was dropped,
plaintiff sued the City of Raleigh (defendant). Plaintiff appeals from the trial court’s
order granting defendant’s motion for summary judgment. After careful
consideration, we affirm.
I. Background
In August 2011, plaintiff and his fiancée, LaToya Turner, rented commercial
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space on Capital Boulevard in Raleigh “for the express purpose of opening a teen club
to provide at-risk youth a non-violent and drug-free place to socialize.” Plaintiff and
Turner formed a limited liability company named, “Juice Bar Teen-Lounge” (Juice
Bar). On 15 August 2011, plaintiff obtained a City of Raleigh business license for
Juice Bar. The following day, Turner submitted an application to defendant for an
AEP. On the application, Turner listed herself as a partner, plaintiff as the owner,
the type of business as “event center,” and the business start date as 15 August 2011.
The application instruction sheet lists telephone numbers for Building Inspections
and Fire Prevention, and states, “The applicant for an Amplified Entertainment
Permit is responsible for scheduling the required inspections.” It further states,
“Please allow at least 90 days from your application date until you plan to begin
providing Amplified Entertainment.” Turner paid the $250 non-refundable
application fee but did not pay the additional $250 permit fee.
Also on 16 August 2011, Turner contacted David Hickman, who at that time
was the Code Enforcement Specialist, to conduct a courtesy inspection of Juice Bar.
In Hickman’s affidavit, he stated that the City Inspections Department offered
courtesy inspections “as a public service” that were “not intended to be
comprehensive, but were intended to identify obvious and serious issues.” Hickman
stated that after the courtesy inspection, he discussed with Turner the limited
occupant load and the required music shut-off switch, and he recommended that
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plaintiff and Turner proceed with applying for their AEP in order to initiate the
formal inspection process. Hickman clarified that a business may open “upon
purchase of a business license, and mere purchase of a business license does not in
itself trigger any inspection requirements. However, if a business wishes to provide
amplified entertainment, it must first obtain an AEP.” Hickman stated that neither
plaintiff nor Turner requested an AEP inspection. Plaintiff answered as follows in
an interrogatory: “On or about August 15, 2011, J.W. Pinder, the deputy fire marshal,
told me that fire extinguishers needed to be placed on the walls in a visible location,
that the ceiling tiles needed to be replace[d], that he needed certain prior inspections,
and that he would be happy to come back out for a reinspection.”
Days later, on 19 August 2011, plaintiff and Turner held a grand opening for
Juice Bar. City of Raleigh Police Sergeant Michael Peterson obtained a social media
advertisement from the Raleigh Police Department Intelligence Center indicating
that approximately 700 teenagers planned to attend.1 In order to learn more about
Juice Bar, Sergeant Peterson contacted Joette Holman, City of Raleigh License
Review Technician, and David Hickman in the City’s Inspections Department.
Holman informed Sergeant Peterson that defendant did not issue Juice Bar an AEP
but that an application had been submitted. Hickman told Sergeant Peterson that
the requisite inspections for the AEP had not been conducted.
1The advertisement lists 748 people as “attending,” 694 people as “maybe attending,” 23,231 people
as “awaiting reply,” and 1,526 people as “not attending.”
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Holman informed her supervisor, Sergeant Austin, about her conversation
with Sergeant Peterson. Sergeant Austin then added Juice Bar to Netforces’ list of
nightclubs to inspect on 19 August 2011. Netforces, a multi-agency task force, is
comprised of members of the City of Raleigh’s Inspections Department, Police
Department, and Fire Department, as well as representatives of Wake County and
the State of North Carolina. “Netforces conducts inspections of nightclubs in the City
of Raleigh and attempts to identify structural deficiencies, fire code violations, license
violations, and health code violations.”
Sergeant Peterson and Officer M.T. McKee drove separately to Juice Bar to
observe the grand opening. When Sergeant Peterson arrived, he saw Officer G.T.
Porter enter Juice Bar. Officer Porter was off-duty and providing security services at
an adjacent grocery store. When Sergeant Peterson saw Officer Porter leave Juice
Bar, he called Officer Porter to ask the purpose of his visit. Officer Porter stated that
he approached Juice Bar out of curiosity, that he met the owner and informed him
about Netforces, and that he advised the owner to make sure he obtained all requisite
permits to operate his business.
Shortly thereafter, the Netforces team arrived at Juice Bar and observed
violations of the fire code and health code. Plaintiff was identified as the owner and
was issued a citation for selling food in violation of N.C. Gen. Stat. § 130A-248(b). A
member of the Netforces team asked plaintiff to provide a copy of his business licenses
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and permits, and when plaintiff could not produce an AEP, Sergeant Peterson
directed Officer McKee to arrest him. In Sergeant Peterson’s affidavit, he stated,
15. Based on my observations at the Juice Bar Teen Lounge
on August 19, 2011, my earlier conversations with Ms.
Holman and Mr. Hickman, and information I gathered
during the Netforces inspection from members of the
Netforces inspection team, I concluded that there was
probable cause to believe that Plaintiff had violated the
AEP Ordinance by providing amplified entertainment
without first obtaining an AEP.
16. Because I knew that the Plaintiff had been provided
information about the AEP ordinance and its requirements
during the application process, and that Plaintiff had been
specifically warned by Officer Porter to be certain that he
had obtained all necessary permits, I determined that
Plaintiff’s blatant violation of the AEP Ordinance
warranted his arrest.
Plaintiff was charged with operating a business without first obtaining licenses
and permits required by the Raleigh City Code. The magistrate’s order states,
“Subject failed to have a priviledge [sic] business permit and an amplified
entertainment permit.” The parties concede that plaintiff did not possess an AEP on
19 August 2011. On 16 August 2012, plaintiff filed a complaint in federal court
alleging claims against defendant and Officer McKee in his individual capacity. On
30 September 2013, the parties filed a stipulation that all claims against Officer
McKee were dismissed without prejudice. On 20 May 2014, the federal court
dismissed plaintiff’s remaining claims without prejudice. Because the claim for which
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the court had original jurisdiction was dismissed by stipulation, the court declined to
exercise supplemental jurisdiction over the remaining state-law claims.
On 19 June 2014, plaintiff filed a complaint in Wake County Superior Court
alleging the following claims against defendant: false imprisonment/false arrest;
malicious prosecution; and violations of Article I, Sections 1, 19−21, and 35−36 of the
North Carolina Constitution. Plaintiff filed an amended complaint on 1 October
2014. On 17 November 2014, defendant filed an answer to plaintiff’s complaint, and
on 2 February 2015, defendant filed a motion for summary judgment. Defendant
argued there was no genuine issue of material fact and it was entitled to judgment as
a matter of law because (1) plaintiff’s arrest was supported by probable cause; (2)
immunity barred plaintiff’s claims; (3) the existence of common law remedies barred
plaintiff’s North Carolina constitutional claims; and (4) no statutory basis supported
plaintiff’s claim for punitive damages.
On 30 March 2015, the superior court granted defendant’s motion for summary
judgment and dismissed with prejudice all of plaintiff’s claims. The court did not
specify in the order the basis for its ruling. Plaintiff appeals.
II. Analysis
“On appeal, this Court reviews an order granting summary judgment de novo.”
Manecke v. Kurtz, 222 N.C. App. 472, 475, 731 S.E.2d 217, 220 (2012) (citations
omitted). “Under a de novo review, the court considers the matter anew and freely
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substitutes its own judgment for that of the lower tribunal.” Smith v. Cnty. of
Durham, 214 N.C. App. 423, 430, 714 S.E.2d 849, 854 (2011) (citation and quotations
omitted).
A motion for summary judgment should be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule
56(c) (2013). “In deciding a motion for summary judgment, a trial court must consider
the evidence in the light most favorable to the non-moving party.” Azar v.
Presbyterian Hosp., 191 N.C. App. 367, 370, 663 S.E.2d 450, 452 (2008) (citing
Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003)). “The moving party
bears the burden of showing that no triable issue of fact exists.” Id. (citing Pembee
Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)).
“Once the moving party has met its burden, the non-moving party must forecast
evidence that demonstrates the existence of a prima facie case.” Id. (citing
Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).
“If the granting of summary judgment can be sustained on any grounds, it should be
affirmed on appeal.” Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).
Plaintiff argues that because his business falls within an exemption provided
in the AEP ordinance, defendant could not have had probable cause to arrest him for
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violating the ordinance. Plaintiff also argues that his constitutional claims are not
barred because he does not have an adequate remedy under state law as defendant
claims it is shielded by governmental immunity. Lastly, plaintiff states that
governmental immunity does not apply because defendant purchased insurance that
applies to plaintiff’s claims.
Defendant contends that the trial court properly granted summary judgment
in its favor based on two theories. First, defendant had probable cause to arrest
plaintiff, which defeats plaintiff’s claims for false arrest and malicious prosecution.
Second, even if there were doubt regarding probable cause, defendant has
governmental immunity. Defendant also argues that state law remedies bar
plaintiff’s direct claims under the North Carolina Constitution.
A. Probable Cause
“[U]nder state law, a cause of action in tort will lie for false imprisonment,
based upon the ‘illegal restraint of one’s person against his will.’ A false arrest, i.e.,
one without proper legal authority, is one means of committing a false
imprisonment.” Williams v. City of Jacksonville Police Dep’t, 165 N.C. App. 587, 596,
599 S.E.2d 422, 430 (2004) (quoting Myrick v. Cooley, 91 N.C. App. 209, 212, 371
S.E.2d 492, 494 (1988)). “Probable cause is an absolute bar to a claim for false arrest.”
Id. (citing Burton v. City of Durham, 118 N.C. App. 676, 682, 457 S.E.2d 329, 333
(1995)).
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A plaintiff must establish four elements to prove a claim for malicious
prosecution: “(1) the defendant initiated the earlier proceeding; (2) malice on the part
of the defendant in doing so; (3) lack of probable cause for the initiation of the earlier
proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.”
Nguyen v. Burgerbusters, Inc., 182 N.C. App. 447, 450, 642 S.E.2d 502, 505 (2007)
(citations and quotations omitted). “[T]he presence of probable cause necessarily
defeats plaintiff’s claim.” Martin v. Parker, 150 N.C. App. 179, 182, 563 S.E.2d 216,
218 (2002). “Whether probable cause exists is a mixed question of law and fact, but
where the facts are admitted or established, the existence of probable cause is a
question of law for the court.” Best v. Duke Univ., 337 N.C. 742, 750, 448 S.E.2d 506,
510 (1994) (citing Cook v. Lanier, 267 N.C. 166, 171, 147 S.E.2d 910, 914 (1966)).
Plaintiff argues that he was not required to obtain an AEP, that he was exempt
from the ordinance because he was not going to provide amplified entertainment on
a regular basis, and that penal ordinances and their exemptions are strictly
construed. He further contends, “[T]he Ordinance cannot apply to [him] because, as
of his arrest on August 19, 2011, he had used amplified entertainment ‘four of [sic]
fewer times a year.’ ” “[B]ecause the Ordinance cannot apply to him, there could not
be probable cause to arrest [him] as a matter of law.”
Defendant argues, “Although Appellant couches his argument in terms of
probable cause, he actually argues that he was not guilty of violating the AEP
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ordinance. However, conviction of an offense requires proof beyond a reasonable
doubt while probable cause is a much lower standard.” Defendant notes, “While the
AEP ordinance provides an exemption for any establishment providing amplified
entertainment four or fewer times a year, this exemption is intended to apply to
establishments which do not provide amplified entertainment during the ordinary
course of business.” Further, defendant claims, a business that provides amplified
entertainment in the ordinary course of business must obtain an AEP prior to
providing any amplified entertainment and “may not wait until after the fourth time
that amplified entertainment is provided.” Holman stated in her affidavit that this
interpretation of the AEP ordinance has been consistently applied by defendant.
The AEP Ordinance provides, in pertinent part, the following:
Section 12-2118. Definition.
All establishments located in Raleigh and providing
amplified music or other amplified entertainment shall
possess an Amplified Entertainment Permit. Amplified
Entertainment shall mean any type of music or other
entertainment delivered through and by an electronic
system. Televisions operating with no amplification other
than their internal speakers and background music
systems operated at a low amplification and not intended
for entertainment shall not be deemed Amplified
Entertainment.
Religious worship facilities, schools and any establishment
providing amplified entertainment four or fewer times a
year are exempt from the provisions of this Division.
Section 12-2124, Penalties.
....
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(b) In addition to the above fines and suspension, a
violation of this ordinance is also a misdemeanor and may
also be enforced through injunctive or other equitable
relief.
“It is a well-established principle that an officer may make a warrantless arrest
for a misdemeanor committed in his or her presence.” State v. Brooks, 337 N.C. 132,
145, 446 S.E.2d 579, 588 (1994) (citing N.C. Gen. Stat. § 15A-401(b)(1)) (“Arrest by
Officer Without a Warrant.–(1) Offense in Presence of Officer.–An officer may arrest
without a warrant any person who the officer has probable cause to believe has
committed a criminal offense.”). “Probable cause ‘may be based upon information
given to the officer by another, the source of such information being reasonably
reliable.’ ” In re Gardner, 39 N.C. App. 567, 571, 251 S.E.2d 723, 725 (1979) (quoting
State v. Roberts, 276 N.C. 98, 107, 171 S.E.2d 440, 445 (1970)).
“The existence of probable cause is a ‘commonsense, practical question’ that
should be answered using a ‘totality-of-the-circumstances approach.’ ” State v.
McKinney, 361 N.C. 53, 62, 637 S.E.2d 868, 874 (2006) (quoting Illinois v. Gates, 462
U.S. 213, 230–31, 76 L. Ed. 2d 527, 543 (1983)). “Probable cause is defined as those
facts and circumstances within an officer’s knowledge and of which he had reasonably
trustworthy information which are sufficient to warrant a prudent man in believing
that the suspect had committed or was committing an offense.” State v. Biber, 365
N.C. 162, 168–69, 712 S.E.2d 874, 879 (2011) (quoting State v. Williams, 314 N.C.
337, 343, 333 S.E.2d 708, 713 (1985)) (quotations omitted). Probable cause “ ‘does not
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demand any showing that such a belief be correct or more likely true than false. A
practical, nontechnical probability that incriminating evidence is involved is all that
is required.’ ” Id. at 169, 712 S.E.2d at 879 (quoting Texas v. Brown, 460 U.S. 730,
742, 75 L. Ed. 2d 502, 514 (1983)). “A probability of illegal activity, rather than a
prima facie showing of illegal activity or proof of guilt, is sufficient.” Id. (citing Gates,
462 U.S. at 235, 76 L. Ed. 2d at 546). Probable cause encompasses “ ‘factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.’ ” Gates, 462 U.S. at 231, 76 L. Ed. 2d at 544 (quoting Brinegar
v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890 (1949)).
Here, defendant had probable cause to believe that plaintiff was violating the
AEP ordinance on 19 August 2011. The AEP application that plaintiff filled out
includes a one-page instruction sheet that states in bold and underlined text, “A
business may not provide Amplified Entertainment until it has received an Amplified
Entertainment Permit.” Moreover, defendant had knowledge that plaintiff applied
for the AEP and that an AEP had not been issued to Juice Bar. When the Netforces
team and Raleigh Police arrived at Juice Bar, they observed a cashbox being used to
collect admission fees, televisions mounted to the walls playing music videos, and a
DJ playing amplified music through a sound system.
Although the AEP ordinance does not specifically state how the exemption
applies, Sergeant Peterson was reasonable in concluding there was a “practical,
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nontechnical probability that incriminating evidence” was involved. See Biber, 365
N.C. at 169, 712 S.E.2d at 879. Because an officer’s probable cause determination is
not one of a legal technician, see Gates, 462 U.S. at 231, 76 L. Ed. 2d at 544, Sergeant
Peterson acted as a reasonable, prudent person in concluding that plaintiff was
providing amplified entertainment, plaintiff was required to have an AEP, plaintiff
could not present an AEP to Netforces, and, as a result, plaintiff was in violation of
the AEP ordinance—a misdemeanor.
Probable cause is not eliminated based on an after-the-fact decision by the
State not to prosecute a particular claim or a conclusion by a court that a defendant
is not guilty. Law enforcement officers need not have prima facie proof of guilt of
illegal activity, only a probability. See Biber, 365 N.C. at 169, 712 S.E.2d at 879.
Although plaintiff emphasizes that Sergeant Peterson has arrested thousands of
people in his career but he has never arrested someone for failing to have an AEP,
this is not relevant to the probable cause inquiry. See State v. McClendon, 350 N.C.
630, 636, 517 S.E.2d 128, 132 (1999) (“[A]n objective standard, rather than a
subjective standard, must be applied to determine the reasonableness of police action
related to probable cause.”). Because a finding of probable cause necessarily defeats
plaintiff’s claims for false arrest and malicious prosecution, we need not address
governmental immunity as there is no liability.
B. Constitutional Claims
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Plaintiff’s sole argument regarding his constitutional claims is that he does not
have an adequate remedy under state law due to defendant’s assertion of
governmental immunity, citing Craig v. New Hanover County Board of Education,
363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009), for the proposition that “if
‘governmental immunity stands as an absolute bar,’ the state law claim ‘does not
provide an adequate remedy.’ ”
In Corum v. University of North Carolina, our Supreme Court stated, “[I]n the
absence of an adequate state remedy, one whose state constitutional rights have been
abridged has a direct claim against the State under our Constitution.” 330 N.C. 761,
782, 413 S.E.2d 276, 289 (1992). Here, unlike Craig, governmental immunity does
not stand as an absolute bar to plaintiff’s state law claims. “Because state law gives
plaintiff the opportunity to present his claims and provides ‘the possibility of relief
under the circumstances,’ plaintiff’s state constitutional claims must fail.” Wilkerson
v. Duke Univ., 229 N.C. App. 670, 676, 748 S.E.2d 154, 159 (2013).
III. Conclusion
The trial court did not err in granting defendant’s motion for summary
judgment based on the presence of probable cause.
AFFIRMED.
Judges CALABRIA and ZACHARY concur.
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