COMPLAINT AND MEMORANDUM

TO:

William B. Gorman, Esquire

FROM:

National Legal Research Group, Inc.
Douglas R. McKusick, Senior Attorney

RE:

NC-Federal/Civil Rights/Free Speech/Adult Use Ordinance—Total
Exclusion Of Uses From Town

FILE:

12-27861-254

YOUR
FILE:

Jesse Burns v. City of Murfreesboro

February 4, 1999

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GREENSBORO DIVISIONJESSE BURNS, d/b/a F&M NEWSTAND,))
Plaintiff,
)
)
v.
)
)
)
CITY OF MURFRESSBORO, a North)
Carolina Municipal Corporation, and RAY)
CLAIRE, Mayor of the City of Murfreesboro, )and KENNETH B. GEATHERS, Mayor)
pro tem of the City of Murfreesboro, and)
JACK M. GOODNIGHT, ROGER D. HAAS, )JENNIE C. WYRICK, ROBERT S.
)
MISENHEIMER, and PHIL MEACHAM,)
Council Members of the City of Murfreesboro, )and BARRY MOSLEY, Zoning Services)
Manager for the City of Murfreesboro,))
Defendants.
))

Case No.

COMPLAINTThe Plaintiff, Jesse Burns, d/b/a F&M Newstand, files the following complaint against
the Defendants.
Parties1.

Plaintiff, Jesse Burns, (hereafter “Burns”) is a resident of China Grove, North

Carolina. Burns is the owner and operates as a sole proprietorship F&M Newstand locatedat 1201 North Cannon Boulevard in the City of Murfreesboro, North Carolina.

1

2.

Defendant City of Murfreesboro (hereafter “the City”) is a municipal

corporation organized and operating under the laws of the State of North Carolina andexercising powers delegated to it by the State of North Carolina.
3.

Defendant Ray Claire is the Mayor of the City and charged with theenforcement of all laws, ordinances, and regulations enacted by the City. Claire is made a
Defendant in this action in his official capacity as Mayor of the City.
4.

Defendants Kenneth B. Geathers, Jack M. Goodnight, Roger D. Haas, Jennie

C. Wyrick, Robert S. Misenheimer, and Phil Meacham are Members of the Murfreesboro
City Council, each of whom is made a Defendant in his or her official capacity as a City
Council Member.
5.

Defendant Barry Mosley, Zoning Services Manager for the City, is charged

with the enforcement of zoning ordinances and laws within the City and is made a Defendantin his official capacity.
Jurisdiction and Venue
6.

This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343

as it is founded on a claim arising under the laws of the United States and seeks relief underan Act of Congress for the protection of Civil Rights.
7.

Venue is proper in this District under 28 U.S.C. § 1391(b) as all the

Defendants reside within this District and are residents of the State of North Carolina.

2Facts8.

In 1971, Burns established F&M Newstand at its present location. At thattime, the location was within an unincorporated portion of Rowan County, North Carolina.
From its establishment, F&M Newstand sold adult-oriented books and magazines. Since thattime, F&M Newstand has added to its inventory adult-oriented videos for sale, rental, andfor on-site viewing.
9.

In 1984, the City was chartered under the laws of the State of North Carolina.

The City’s territory and limits include the property located at 1201 North Cannon Boulevard,
where F&M Newstand was and is located.
10.

On February 28, 1994, the City adopted Ordinance 150-40 concerning sexuallyoriented businesses. The Ordinance is codified in various sections of the City Zoning
Ordinance.
11.

Section 4:5 of the City Zoning Ordinance defines an “adult oriented business”

as including an adult arcade, adult bookstore, or adult video store. F&M Newstand is an
adult bookstore or adult video store under § 4:5 of the City Zoning Ordinance because oneof its principal business purposes is the sale or rental of books, magazines, and video
reproductions that depict specified sexual activities or specified anatomical areas, and so isan adult-oriented business under the City Zoning Ordinance.
12.

Section 3:3 of the City Zoning Ordinance and the Official Map adopted andin effect under Article 7 of the City Zoning Ordinance establish Adult Oriented Business
Overlay District. Section 5:3.15 of the City Zoning Ordinance provides that the purpose of
the Overlay District is to provide areas where adult entertainment or sexually oriented
3

businesses may be established, and that the intent of this Overlay District is to restrict theconcentration of these uses and to separate these uses from residential and institutional uses
or areas.
13.

Section 5:3.15.2 of the City Zoning Ordinance provides that, in addition tocomplying with all general regulations for the underlying zoning district in which they arelocated, adult-oriented businesses within the Adult Oriented Business Overlay District mustcomply with, inter alia, the following standard and requirements:
1.

No such business shall locate within 2,000 feet of any other Adult
Oriented Business, as measured in a straight line from property line toproperty line;

2.

No Adult Oriented Business shall be located within 2,000 feet of achurch, public or private elementary or secondary school, child day
care or nursery school, public park, residentially zoned or residentiallyused property, or any establishment with an on-premise ABC license,
as measured in a straight line from property line to property line.

14.

Section 9:3(1) of the City Zoning Ordinance provides that any lawfully

operating adult-oriented business which does not comply with the locational requirementsof the ordinance on the effective date of the ordinance is deemed a nonconforming use.
Under § 9:3(3) of the City Zoning Ordinance, any such nonconforming adult-oriented
business shall either cease to operate or meet all of the requirements of City Zoning
Ordinance for such businesses no later than 60 months from the date the business becomesa nonconforming use.
15.

Because of the location restrictions contained in § 5:3.15.2 of the City Zoning

Ordinance, F&M Newstand became a nonconforming use on the effective date of the Adult
Oriented Business Ordinance.
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16.

In a letter dated March 9, 1994, the City informed Burns of the adoption of the

Adult Oriented Business Ordinance and the establishment of the Overlay District. The letter
informed Burns that F&M Newstand had been determined to be a nonconforming use
because it is not located in an Adult Oriented Business Overlay District, and that Burns had
60 months from February 28, 1994 to either cease to operate or meet all the requirements ofthe zoning ordinance.
17.

The Defendants, in enacting and enforcing the City zoning ordinances and the

Adult Oriented Business Overlay District ordinance, acted and continue to act under colorof state law.
18.

The Adult Oriented Business Overlay District ordinance and its enforcementby the Defendants violates the rights of Burns to freedom of expression and freedom ofspeech guaranteed by the First and Fourteenth Amendments to the United States Constitution
in that the effect of the Overlay District and the distance requirements set forth in City
Zoning Ordinance § 5:3.15.2 is to totally exclude and preclude the location or operation of
Burns's or any other adult-oriented business within the City.
19.

For this deprivation of federally guaranteed constitutional rights under colorof state law, Burns is entitled to relief under 42 U.S.C. § 1983.
WHEREFORE, Burns requests that judgment be entered in his favor granting thefollowing relief:a)that a preliminary injunction be issued forbidding the Defendants fromenforcing the City's Adult Oriented Business Overlay District ordinance against Burns or5otherwise taking any action requiring Burns to cease or move his operation of F&M
Newstand;b)that a final judgment be entered finding that the provisions of the City's Adult

Oriented Business Overlay District ordinance violate the First and Fourteenth Amendments
to the United States Constitution and that the Defendants be permanently enjoined fromenforcing that ordinance; andc)that judgment be entered in favor of Burns under 42 U.S.C. § 1988 for theamount of attorney's fees and other costs incurred in bringing and prosecuting this action.

DATED:

February, 1999By:
William B. Gorman
N.C. Bar No.
POPE, GORMAN, KUTTEH,SIMON & BAKER, P.A.
The James Iredell Building
113 North Center Street
Suite 200
Statesville, NC 28677(704) 873-2131

6

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GREENSBORO DIVISIONJESSE BURNS, d/b/a F&M NEWSTAND,))
Plaintiff,
)
)
v.
)
)
)
CITY OF MURFRESSBORO, a North)
Carolina Municipal Corporation, and RAY)
CLAIRE, Mayor of the City of Murfreesboro, )and KENNETH B. GEATHERS, Mayor)
pro tem of the City of Murfreesboro, and)
JACK M. GOODNIGHT, ROGER D. HAAS, )JENNIE C. WYRICK, ROBERT S.
)
MISENHEIMER, and PHIL MEACHAM,)
Council Members of the City of Murfreesboro, )and BARRY MOSLEY, Zoning Services)
Manager for the City of Murfreesboro,))
Defendants.
))

Case No.

MOTION FOR PRELIMINARY INJUNCTION
COMES NOW the Plaintiff, Jesse Burns, d/b/a F&M Newstand, and moves pursuant
to Fed. R. Civ. P. 65(a) for the entry of a preliminary injunction forbidding the Defendants
from enforcing the City's Adult Oriented Business Overlay District ordinance against thePlaintiff or otherwise taking any action requiring the Plaintiff to cease or move his operationof F&M Newstand under § 5:3.15 of the City of Murfreesboro Zoning Ordinance. In supportof this motion, the Plaintiff incorporates by reference as if fully set out herein the allegations

1

contained in the Complaint filed in the above-titled action and also submits the attachedaffidavits.
The Plaintiff would further allege that he will suffer irreparable harm if thepreliminary injunction is not granted in that enforcement of the City Ordinance will deprive
him of rights guaranteed under the First and Fourteenth Amendments to the United States
Constitution, as well as the loss of business, while no significant harm to the Defendants or
the public interest will be caused by a grant of a preliminary injunction. Furthermore, forthe reasons set forth in the Brief in Support of this motion, the Plaintiff is likely to succeedin this action.
WHEREFORE, the Plaintiff respectfully requests that this Court, after notice andhearing to the Defendants, order that enforcement of the City's Adult Oriented Business
Overlay District ordinance be preliminarily enjoined pending final resolution of this action.
The Plaintiff also requests leave to present oral argument on this motion.

DATED:

February, 1999By:
William B. Gorman
N.C. Bar No.
POPE, GORMAN, KUTTEH,SIMON & BAKER, P.A.
The James Iredell Building
113 North Center Street
Suite 200
Statesville, NC 28677(704) 873-2131

2

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GREENSBORO DIVISIONJESSE BURNS, d/b/a F&M NEWSTAND,))
Plaintiff,
)
)
v.
)
)
)
CITY OF MURFRESSBORO, a North)
Carolina Municipal Corporation, and RAY)
CLAIRE, Mayor of the City of Murfreesboro, )and KENNETH B. GEATHERS, Mayor)
pro tem of the City of Murfreesboro, and)
JACK M. GOODNIGHT, ROGER D. HAAS, )JENNIE C. WYRICK, ROBERT S.
)
MISENHEIMER, and PHIL MEACHAM,)
Council Members of the City of Murfreesboro, )and BARRY MOSLEY, Zoning Services)
Manager for the City of Murfreesboro,))
Defendants.
))

Case No.

PLAINTIFF'S BRIEF IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION
This action is one brought by the Plaintiff, Jesse Burns (hereafter "Burns"), d/b/a
F&M Newstand, pursuant to 42 U.S.C. § 1983 to enjoin the enforcement of ordinances of
the Defendant City of Murfreesboro (hereafter "the City") which restrict the location andoperation of adult-oriented businesses within the City. In addition to seeking a permanent
injunction forbidding enforcement of these ordinances by the Defendants, Burns also hasrequested and moved pursuant to Fed. R. Civ. P. 65(a) for a preliminary injunction1forbidding enforcement of the ordinances.

For the reasons set forth below, Burns

respectfully requests that the motion for a preliminary injunction be granted.
STATEMENT OF FACTS
Burns operates F&M Newstand at 1201 North Oak Street within the City, which isa North Carolina municipal corporation exercising the state powers under the general andspecial laws of North Carolina. Burns has operated F&M Newstand at this location since1991, even prior to the incorporation of the City in 1984. Part of the business of F&M
Newstand includes that sale of adult-oriented books and magazines and the sale, rental, andon-premises viewing of adult-oriented videotapes.
On February 28, 1994, the City adopted Ordinance 150-40 as an amendment to its
Zoning Ordinance. Ordinance 150-40 established an Adult Oriented Overlay District (AOB)
for certain zoning districts within the City. The AOB Ordinance applies to adult-oriented
businesses as defined in § 4.5 of the City's Zoning Ordinance. F&M Newstand falls within
the definition of an adult bookstore or adult video store under § 4.5, and so is an adultoriented business covered by the AOB Ordinance. Section 5:3.15 of the City Zoning
Ordinance states that the purpose of the AOB "is to provide areas in which adultentertainment or sexually oriented business [sic] may be established. . . . It is the intent of
this Overlay District to restrict the concentration of these uses and to separate these usesfrom residential and institutional uses."
Section 5:3.15.2 of the City Zoning Ordinance goes on to set forth requirements for
adult-oriented businesses as follows:2

In addition to the General Regulations and Requirements of this Ordinance forthe underlying Primary Zoning District, Adult Oriented Businesses located in
an Adult Oriented Business Overlay District shall comply with the following
standards and requirements:
1.

No such business shall locate within 2,000 feet of any other Adult
Oriented Business, as measure in a straight line from property line toproperty line;

2.

No Adult Oriented Business shall be located within 2,000 feet of achurch, public or private elementary or secondary school, child day
care or nursery school, public park, residentially zoned or residentiallyused property, or any establishment with an on-premise ABC license,
as measured in a straight line from property line to property line[.]Section 9:3 of the City Zoning Ordinance provides that any adult-oriented business which
was lawfully operating on the date the AOB ordinance was adopted but does not comply
with the AOB ordinance shall be deemed a nonconforming use and shall either cease tooperate or meet all the requirements of the AOB ordinance no later than 60 months after thebusiness becomes a nonconforming use.
F&M Newstand is not located within an AOB Overlay District, and on March 9,
1994, Burns received a letter from the City informing him that F&M Newstand wasdetermined to be a nonconforming use under the AOB ordinance. "Consequently," the letter
reads, "your adult oriented business will have 60 months from February 28, 1994 to either
cease to operate or meet all the requirements of the Zoning Ordinance."
Subsequently, Burns began to look for a place within the City to move the business.
However, as set forth in the attached affidavits, the location and distance restrictions set forthin § 5:3.15.2 make it impossible for any adult-oriented business to locate within the City andcomply with the AOB ordinance. According to the zoning maps of the City, there is no real3

estate parcel located more than 2,000 feet from residentially zoned land, churches, schools,
parks, or business establishments with ABC on-premises licenses. This fact is establishedby drawing a 2,000-foot radius around all areas so zoned or all churches, schools, or parks.
The AOB ordinance has thus resulted in the total exclusion of adult-oriented businesses fromthe City.
QUESTION PRESENTED
Is Burns entitled to an order preliminarily enjoining enforcement of the AOB
ordinance on the basis that that ordinance violates the First and Fourteenth Amendments by
operating to totally exclude adult-oriented businesses from the City?
ARGUMENT
In a recent decision also involving the validity of municipal regulations upon adultoriented businesses, the court in Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372,
375 (W.D.N.C. 1997), set forth the controlling standards for the grant of a preliminary
injunction, noting that a hardship balancing test is to be applied. Quoting from Manning v.
Hunt, 119 F.3d 254, 263-64 (4th Cir. 1997), the court stated that a court must consider thefollowing four factors:"(1) the likelihood of irreparable harm to the plaintiff if thepreliminary injunction is denied,(2) the likelihood of harm to the defendant if the requested relief
is granted,(3) the likelihood that the plaintiff will succeed on the merits,and(4) the public interest." [Direx Israel, Ltd. v. BreakthroughMedical Corp., 952 F.2d 802, 812 (4th Cir. 1992).]4....
Under this hardship balancing test, the first two factors
regarding the likelihood of irreparable harm to the plaintiff if
denied and of harm to the defendant if granted are the mostimportant. . . . Thus, the first task of the district court is todetermine the harm that will be suffered by the plaintiff if nopreliminary injunction is entered. The harm demonstrated by
the plaintiff must be "'neither remote nor speculative, but actual
and imminent'". . . . The district court must then balance thisharm against the harm which would be suffered by the
defendant if the preliminary injunction is granted.
Mom N Pops, 979 F. Supp. at 375.
In the instant case, the harm which will be suffered by Burns if the AOB ordinanceis not enjoined is the loss of rights guaranteed by the First and Fourteenth Amendments to
the United States Constitution, since enforcement of the ordinance will require Burns toclose his book and video store. It is beyond question that the First Amendment protects thesale of nonobscene adult materials, and that a person engaged in the business of selling suchmaterials may invoke the First Amendment as against municipal regulations of that business.
1126 Baltimore Boulevard, Inc. v. Prince George's County, Maryland, 58 F.3d 988, 994 (4thCir. 1995) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224 (1990)).
Furthermore, the threat to Burns's First Amendment rights unquestionably constitutes
irreparable injury for the purpose of a request for a preliminary injunction. As stated in Mom
N Pops, 979 F. Supp. at 384:
Plaintiff alleges loss of First Amendment freedom occasioned by theordinances and how they are enforced, and thus, irreparable injury or the threat
thereof. In this context, the . . . questions of irreparable harm and likelihoodof success on the merits are necessarily subsumed into the First Amendment
inquiry. "The loss of First Amendment freedoms, for even minimal periodsof time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427
5

U.S. 347, 373-74, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976). If First
Amendment rights are being violated or in danger of being violated, Plaintiff
is likely to succeed on the merits, and the balance of equities will not aid
Defendants.
See also Dia v. City of Toledo, 937 F. Supp. 673, 678 (N.D. Ohio 1996) (violation of theright to free speech always constitutes irreparable harm which justifies a court in invoking
its equitable powers and issuing an injunction).
Because First Amendment rights are at stake, the analysis on the instant motion
resolves into whether there is a substantial likelihood that Burns will succeed on his claimthat the AOB ordinance violates the First Amendment. In City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 48 (1986), the Court ruled that municipal zoning regulations
aimed at curbing the undesirable secondary effects of businesses which distribute adult or
sexually oriented material are consistent with the First Amendment if they meet certain
criteria. Such regulations are considered valid content-neutral time, place, and manner
regulations of speech "so long as they are designed to serve a substantial governmental
interest and do not unreasonably limit alternative avenues of communication." Id. at 47(emphasis added). With respect to the latter requirement, the Court found that the ordinancebefore it did not unreasonably limit alternative channels of communication because theordinance, which forbade the location of adult-oriented businesses within 1,000 feet ofresidential zones, family dwellings, churches, parks, or schools, in actual effect allowed 520
acres of land within the city in which an adult use could locate. But the Court pointed outthat it had "cautioned against zoning regulations that have 'the effect of suppressing, or
greatly restricting access to, lawful speech,'" and the First Amendment requires that cities6

"refrain from effectively denying respondents a reasonable opportunity to open and operate
an adult theatre within the city[.]" Id. at 54 (quoting Young v. American Mini Theatres, 427
U.S. 50, 71 n.35 (1976)).
The City of Renton case makes clear that location and zoning restrictions on adult or
sexually oriented business which may otherwise be valid as aimed at the secondary effectsof such businesses are violative of the First Amendment if the regulations wholly forbid or
deny such businesses a reasonable opportunity to locate within the city. Illustrative of thatpoint is the decision in Wolfe v. Village of Brice, Ohio, 997 F. Supp. 939 (S.D. Ohio 1998),
in which the court granted the owner of an adult bookstore summary judgment on his claimthat the village's zoning ordinance requiring adult-oriented businesses be located more than
1,000 feet from schools and churches and 300 feet from residences, violated the First
Amendment. Affidavits presented by the plaintiff showed that the distance restrictions
effectively prevented him from locating an adult bookstore anywhere within the village
because there was no available place outside of the distance restrictions. Id. at 943-44.
Relying upon the holding in City of Renton that a city must refrain from effectively denying
citizens a reasonable opportunity to open and operate adult-oriented businesses within thecity, the court held that the total exclusion effected by the village's ordinance rendered it
unconstitutional. Wolfe, 997 F. Supp. at 945. Similarly, in Ebel v. City of Corona, 767 F.2d635, 639 (9th Cir. 1985), the court affirmed an order permanently enjoining a city fromenforcing an ordinance imposing distance restrictions upon adult-oriented businesses because
the effect of the ordinance was to preclude the plaintiff from locating within the city.

7Indeed, courts have struck down adult-use ordinances as violative of the First
Amendment even where there was not a total exclusion effected by the ordinance. In Walnut
Properties v. City of Whittier, 861 F.2d 1102, 1107 (9th Cir. 1988), the court stressed that
under City of Renton, an adult-use ordinance is unconstitutional if it does not afford businessowners a "reasonable opportunity to open and operate" within the city. It then examined thecity's official zoning map, which revealed that, given the 1,000-foot distance requirements
mandated by the ordinance, only a small handful of adult-oriented businesses could operate
within the city. Walnut Properties, 861 F.2d at 1108. The court ruled that this did notsatisfy the First Amendment because the paucity of available sites was glaring and did notprovide a reasonable opportunity for the operation of adult-oriented businesses. Id. at 1109.
In Young v. City of Simi Valley, 977 F. Supp. 1017, 1021 (C.D. Cal. 1997), the court heldthat an ordinance which imposed a 1,000-foot distance restriction on adult uses was
unconstitutional where it allowed for, at most, four sites within the city where adult uses
could be located. See also Dia, 937 F. Supp. at 678 (courts generally find the available sites
for adult-oriented businesses inadequate if there are fewer than 12 sites or less that 1% ofcity land available; where the parties agreed that the number of sites available was small,there was a likelihood that the plaintiff would succeed on a claim that a city ordinanceviolated the First Amendment and was entitled to a preliminary injunction against its
enforcement).
The City's AOB ordinance suffers from the same constitutional defect identified inthese cases. As indicated in the affidavits accompanying the instant motion, the AOB
ordinance does not merely limit the number of places available to an adult-oriented business,8but has the effect of totally excluding such businesses from the City. This plainly violates
the principle announced in City of Renton, 475 U.S. at 54, that an adult-use ordinance mustleave open alternative channels of communication and "refrain from effectively denying[plaintiffs] a reasonable opportunity to open and operate an adult theatre within the city."
In light of this law and the facts of this case, there is surely a strong likelihood that
Burns will prevail on his First Amendment claim. Given that it is First Amendment rights
which stand to be harmed if the preliminary injunction is not granted, "the balance of equities
will not aid Defendants." Mom N Pops, 979 F. Supp. at 384. Furthermore, "[t]he public's
interest will be served by issuing the preliminary injunction in that the public is served whenconstitutional rights, especially the right to free speech, are vindicated." Dia, 937 F. Supp.
at 679 (citing Christy v. Ann Arbor, 824 F.2d 489 (6th Cir. 1987), cert. denied, 484 U.S.
1059 (1988)). Thus, all the criteria for the issuance of a preliminary injunction exist in thiscase, and such an injunction should issue to prevent enforcement by the Defendants of theCity's AOB ordinance.

9

CONCLUSION
Wherefore, the Plaintiff, Jesse Burns, requests that his motion for a preliminary
injunction forbidding enforcement of the City's AOB ordinance be granted pending the final
disposition of this action.
Respectfully submitted,

William B. Gorman
N.C. Bar No.
POPE, GORMAN, KUTTEH,SIMON & BAKER, P.A.
The James Iredell Building
113 North Center Street
Suite 200
Statesville, NC 28677(704) 873-2131
ATTORNEY FOR THE PLAINTIFF