Tuesday, November 07, 2006

Strippers United: WE WON, WE WON, WE WON!!!

I'll b damned...

It's not in The G'boro News and Record (It's actually old news. It's dated 9/15/06. How come NOONE reported on it??), but it's news 2 me...

WE WON!!


YAAAYY!!




Thanks 2 The House of Xanadu blog & The Troublemaker's blog 4 the info. I was looking all over 4 some news on this & couldn't find ANYTHING!


The newspapers didn't report it, News 2 and the other TV stations didn't say anything.

WHY???


Make that $$$, baby!




Strippers waiting anxiously 4 the ruling





Here's the whole thing:


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This is the html version of the file

http://www.ncmd.uscourts.gov/Opinions/Sep06/05cv1166moo.pdf.

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Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GIOVANNI CARANDOLA, LTD., a

North Carolina Corporation d/b/a Christie’s Cabaret, Y.K. ENTERPRISES, INC., a North Carolina corporation d/b/a Southside Johnnie’s, REESAW, INC., a North Carolina ) Corporation d/b/a Chester’s Premier Gentlemen’s Club, E.K.’S II, INC., a North Carolina Corporation d/b/a
Harper’s II, CARL EDWARD COLLINS, d/b/a Harper’s Exotic Car Wash, SIMPLY EXPLICIT, L.L.C., a North Carolina Corporation, TREASURE BOX, Inc., a North Carolina Corporation, d/b/a Xanadu Video and Boutique,

Plaintiffs, v. 1:05CV1166
THE CITY OF GREENSBORO, a North Carolina Municipal Corporation,

Defendant.

MEMORANDUM OPINION and ORDER
Plaintiffs, operators of adult-oriented businesses around Greensboro, North Carolina, filed this action seeking relief from ordinances that Defendant City of Greensboro (“Defendant”)
promulgated and enforced. Pending before this court is a motion for summary judgment from Plaintiffs Giovanni Carandola, Ltd., Y.K. Enterprises, Inc., Reesaw, Inc., E.K.’s II, Carl Edward
Collins, and Treasure Box, Inc. (“Plaintiffs”) on the amended Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 1 of 8

Page 2
2
complaint’s third count. For the reasons stated below, the court
will grant Plaintiffs’ motion.
I.
FACTS
Plaintiffs’ adult-oriented businesses market erotic-dance
presentations and sexually explicit publications. When these
businesses commenced operations, they were in compliance with
Defendant’s then-existing ordinances. Defendant contends that
Plaintiffs’ businesses, however, violate a recently adopted
ordinance.
Defendant first regulated adult-oriented businesses in 1995.
During October 2001, Defendant passed an amending ordinance that
expanded the distance adult-oriented establishments must be from
certain properties. See City of Greensboro, N.C., Dev. Ordinance
§ 30-5-2.73.5 (as amended Oct. 16, 2001). That section bans,
through various ways, adult-oriented businesses from locating in
certain places. Section 30-5-2.73.5(B), as currently in effect
under the 2001 amendment, requires the following:
(1) No sexually oriented business shall locate within
one thousand two hundred (1,200) feet of any other
sexually oriented business.
(2) No sexually oriented business shall locate within
one thousand (1,000) feet of a church, public or
private elementary or secondary school, child day
care center or nursery school, public park, or
residentially zoned property.
Section 30-5-2.73.5(G) gives businesses a time limit in which to
discontinue nonconforming uses.
Defendant interprets section 30-5-2.73.5(B) to apply to
existing businesses, not just newly created businesses. Thus,
Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 2 of 8

Page 3
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Defendant’s interpretation requires all adult-oriented
businesses, though not violating any ordinance prior to the 2001
amendments, to comply with subsection (B) after its enactment.
Plaintiffs, whose businesses do not conform to Defendant’s
interpretation of subsection (B), seek a declaration that this
interpretation is incorrect as a matter of law.

II. ANALYSIS
Summary judgment is appropriate where an examination of the
pleadings, affidavits, and other proper discovery materials
before the court demonstrates that no genuine issues of material
facts exist, thus entitling the moving party to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552 (1986). The parties
do not dispute any facts. The issue is purely one of statutory
interpretation. When a “dispute ultimately turns entirely on a
question of statutory interpretation, the district court [can]
properly proceed[] to resolve the case on summary judgment.”
United States v. West Virginia, 339 F.3d 212, 214 (4th Cir.
2003).

The court first examines the ordinance’s plain language.
“When construing a statute so explicit in scope, a court must act
within certain well-defined constraints. If a legislative
purpose is explained in ‘plain and unambiguous language, . . .
the . . . duty of the courts is to give it effect according to
its terms.’” Ruhe v. Bergland, 683 F.2d 102, 104 (4th Cir. 1982)
(alterations in original) (quoting United States v. Rutherford,
Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 3 of 8

Page 4
44
442 U.S. 544, 551, 99 S. Ct. 2470, 2475 (1979)); accord, e.g.,
South Carolina Dep’t of Health & Envtl. Control v. Commerce &
Indus. Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (“In resolving
issues of statutory construction, we are obliged to begin with
the language of a statute. If the statute is clear, ‘judicial
inquiry into the statute’s meaning, in all but the most
extraordinary circumstances, is finished.’” (quoting Estate of
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S. Ct.
2589, 2594 (1992)). “The plainness or ambiguity of statutory
language is determined by reference to the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole.” Robinson v. Shell Oil Co.,
519 U.S. 337, 341, 117 S. Ct. 843, 846 (1997).

Section 30-5-2.73.5(B) requires that “[n]o sexually oriented
business shall locate within” a certain distance of other
properties. City of Greensboro, N.C., Dev. Ordinance § 30-5-
2.73.5(B) (emphasis added.) On its face, the ordinance
unambiguously makes the act of locating within a certain place
unlawful. Contrary to Defendant’s arguments, the ordinance bans
only the active, future establishment of prohibited businesses.
A business established before the amendment cannot “locate”
within a certain area because such businesses have already
located in the area. To thereafter “locate” in this ordinance’s
meaning, further action such as relocation is required. “Shall
locate,” thus, does not mean “shall have located prior to this
amendment” because such a meaning is illogical.
Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 4 of 8

Page 5
1
The court notes that section 30-5-2.73.5(B)(2) bars one
“sexually oriented business” from locating too closely to “a
church, public or private elementary or secondary school, child
day care center or nursery school, public park, or residentially
zoned property.” In this case, the problematic application does
not exist. However, this does not concern the court because no
party argues that (1) and (2) of section 30-5-2.73.5(B) have
different meanings of “shall locate.” Thus, implicit in this
entire opinion is that “shall locate” has a consistent meaning
within, at least, section 30-5-2.73.5(B).
5

Moreover, applying part of the ordinance dictates that
“locate” must apply only to adult-oriented businesses that locate
or establish after the amendment’s enactment. The ordinance, in
part (1), bans one adult-oriented business from locating too
closely to another adult-oriented business; for example, one
business is first rightfully present, and then another, newly
located business is too close. If two businesses are too close
to each other prior to the amendment, the law would not define
which of the two was nonconforming. Both cannot be nonconforming
because the law forbids one business from being too closely
placed to another rightfully present business. Since the law,
under Defendant’s interpretation, would bar this conduct without
resolving which one is nonconforming, Defendant’s interpretation
is untenable.
1

The ordinance’s plain language bars locating an
adult-oriented business within the specified distances after the
ordinance’s enactment.


This reading is reasonable in light of the section’s other
uses of “locate.” Subsection (C) of that same section states
that “[n]o sexually oriented business shall be permitted to be
located in the Old Greensborough National Register Historic
Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 5 of 8

Page 6
6
District.” City of Greensboro, N.C., Dev. Ordinance § 30-5-
2.73.5(C) (emphasis added). “Locate” is used in a different form
and context in this subsection; instead of merely stating no
business “shall locate” in the historic district, it states that
no business “shall be permitted to be located.” “Shall be
permitted to be located” means that a business cannot exist in
the historic district at all. “Located” in this sentence is the
act of merely being or existing within the specific area,
whenever the being or existing commenced. Under Defendant’s
proffered interpretation, “shall be permitted to be located” and
“shall locate” would have the exact same meaning because both
forms would cover the act of merely existing in a certain area.
Defendant’s reading is contrary to explicit statutory language
and the relevant contexts that create two different meanings—one
for “shall locate” and one for “shall be located.”

This reading does not, as Defendant vigorously argues,
render subsection (G) meaningless. Subsection (G) gives
businesses a time period in which to correct a nonconforming use
that predates the amendment. A business would need a time period
only if the ordinance rendered preexisting conditions
nonconforming, which is how Defendant interprets subsection (B).
Defendant’s argument cannot prevail. Subsection (G) applies to
the entire text of section 30-5-2.73.5, which bans a variety of
conditions. As discussed above, some parts of section 30-5-
Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 6 of 8

Page 7
2
The court uses “do appear to ban” only because the precise
meaning of this section is not dispositive to this case except to
the extent its meaning aids in construction of subsection (B).
The court uses this language to affirm that it is not construing
this provision as a matter of law.
7
2.73.5 do appear to ban preexisting conditions.

2
See, e.g., City
of Greensboro, N.C., Dev. Ordinance § 30-5-2.73.5(C). Moreover,
nothing in subsection (G) requires it to apply in full effect to
all other parts of section 30-5-2.73.5. Thus, the court’s
interpretation does not render subsection (G) meaningless because
it applies to other, relevant parts of section 30-5-2.73.5.
In applying the ordinance, Defendant contends that
Plaintiffs violated it by having been too closely located to
certain properties prior to the enactment of the ordinance.
Defendant admits that Plaintiffs have not established a business
in the area after the ordinance’s enactment. For the reasons
herein above set forth, the moving Defendant is entitled to
summary judgment on Count III of the amended complaint. The
court assumes Defendant will not try to enforce the ordinance
following entry of this order unless the order is reversed upon
an appeal.

III. CONCLUSION
For the reasons stated above,
IT IS ORDERED that the Motion of Certain Plaintiffs for
Summary Judgment [19], that is, Plaintiffs Giovanni Carandola,
Ltd., Y.K. Enterprises, Inc., Reesaw, Inc., E.K.’s II, Carl
Edward Collins, and Treasure Box, Inc., as to C
ount III of the
amended complaint, is GRANTED.
Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 7 of 8
Page 8
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This the 15th day of September 2006.
_____________________________________
United States District Judge
Case 1:05-cv-01166-WLO-PTS Document 27 Filed 09/15/2006 Page 8 of 8


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Common sense really can win the day!


Democray & Strippers:
There's Nothing More American!

1 comment:

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