Article 1. Abatement of Nuisances.

§ 19-1. What are nuisances under this Chapter.

  1. The erection, establishment, continuance, maintenance, use, ownership or leasing of any building or place for the purpose of assignation, prostitution, gambling, illegal possession or sale of alcoholic beverages, illegal possession or sale of controlled substances as defined in the North Carolina Controlled Substances Act, or illegal possession or sale of obscene or lewd matter, as defined in this Chapter, shall constitute a nuisance. The activity sought to be abated need not be the sole purpose of the building or place in order for it to constitute a nuisance under this Chapter.
  2. The erection, establishment, continuance, maintenance, use, ownership or leasing of any building or place wherein or whereon are carried on, conducted, or permitted repeated acts which create and constitute a breach of the peace shall constitute a nuisance. (b1) The erection, establishment, continuance, maintenance, use, ownership or leasing of any building or place wherein or whereon are carried on, conducted, or permitted repeated activities or conditions which violate a local ordinance regulating sexually oriented businesses so as to contribute to adverse secondary impacts shall constitute a nuisance.

    (b2) The erection, establishment, continuance, maintenance, use, ownership, or leasing of any building or place for the purpose of carrying on, conducting, or engaging in any activities in violation of G.S. 14-72.7 .

  3. The building, place, vehicle, or the ground itself, in or upon which a nuisance as defined in subsection (a), (b), or (b1) of this section is carried on, and the furniture, fixtures, and contents, are also declared a nuisance, and shall be enjoined and abated as hereinafter provided.
  4. No nuisance action under this Article may be brought against a place or business which is subject to regulation under Chapter 18B of the General Statutes when the basis for the action constitutes a violation of laws or regulations under that Chapter pertaining to the possession or sale of alcoholic beverages.

History. Pub. Loc. 1913, c. 761, s. 25; 1919, c. 288; C.S., s. 3180; 1949, c. 1164; 1967, c. 142; 1971, c. 655; 1977, c. 819, ss. 1, 2; 1981, c. 412, s. 4; c. 747, s. 66; 1998-46, s. 7; 1999-371, s. 1; 2007-178, s. 3; 2013-229, s. 1.

Cross References.

As to criminal actions for prostitution, see G.S. 14-203 et seq.; for gambling, see G.S. 14-289 et seq.; for unlawful sale of whiskey, see G.S. 18B-304 .

As to constitutionality of final judgment and order under this Article, see note to G.S. 19-5 .

Effect of Amendments.

Session Laws 2007-178, s. 3, effective December 1, 2007, and applicable to offenses committed on or after that date, added subsection (b2).

Session Laws 2013-229, s. 1, effective July 3, 2013, added the last sentence in subsection (a); and added subsection (d). For applicability, see Editor’s note.

Legal Periodicals.

For note on estuarine pollution, see 49 N.C.L. Rev. 921 (1971).

For survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

For article, “Regulating Obscenity Through the Power to Define and Abate Nuisances,” see 14 Wake Forest L. Rev. 1 (1978).

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1088 (1981).

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

For survey of 1981 constitutional law, see 60 N.C.L. Rev. 1272 (1982).

For comment discussing the constitutionality of North Carolina’s nuisance abatement statute, see 61 N.C.L. Rev. 685 (1983).

For article, “Obscenity: The Justices’ (Not So) New Robes,” see 8 Campbell L. Rev. 387 (1986).

CASE NOTES

Constitutionality. —

This Article is not facially unconstitutional. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

The North Carolina legislature chose the civil injunctive abatement route for control of pornography, a route with many hazards to successful negotiation, but, as now interpreted by the North Carolina Supreme Court, this Article effectively survives under U.S. Const., Amend. I and U.S. Const., Amend. XIV analysis. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

This and the following sections, providing for the abatement of public nuisances, are constitutional as a valid exercise of the police power of the State. State ex rel. Carpenter v. Boyles, 213 N.C. 432 , 196 S.E. 850, 1938 N.C. LEXIS 110 (1938). See also Barker v. Palmer, 217 N.C. 519 , 8 S.E.2d 610, 1940 N.C. LEXIS 280 (1940); State ex rel. Summrell v. Carolina-Virginia Racing Ass'n, 239 N.C. 591 , 80 S.E.2d 638, 1954 N.C. LEXIS 617 (1954); State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80 , 84 S.E.2d 390, 1954 N.C. LEXIS 559 (1954).

Even if G.S. 19-5 unconstitutionally authorizes a judge to close a business after it has been declared a nuisance because of past exhibitions or sales of obscene material, a question not before the Supreme Court, G.S. 19-5 is severable from the remaining provisions of this Chapter and does not render this Chapter unconstitutional on its face. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

This section is not unconstitutionally vague or overbroad in describing one type of public nuisance as a place of business regularly operated or maintained for purposes of “prostitution,” and as used in this section, “prostitution” includes the offering or receiving of the body, in return for a fee, for acts of vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, or physical contact with a person’s genitals, pubic area, buttocks or breasts. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

The North Carolina obscenity nuisance statute is directed to pictorial obscenity. It does not apply to written material, and it regulates commercial trafficking in obscene pictorial material only if the exhibition of obscene films is “a predominant and regular course of business” and if other obscene pictorial materials are “a principal or substantial part of the stock in trade.” By such means, the legislature has confined its nuisance abatement authorization to theaters regularly showing pornographic films to adult audiences and to “adult bookstores” with coin-operated film projectors explicitly showing sexual activity or photographs or pictorial magazines showing similar activity, or two or three of them. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

All written material is excluded from the reach of this Article. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

Article Inapplicable to Newsstand or Bookstore. —

This Article clearly does not apply to the operator of a newsstand carrying materials usually to be found in newsstands and hotel and airline terminals, but who carries a magazine, an occasional issue of which might be challenged as obscene, nor does it apply to a bookstore, however salacious some of the written material in the books may be. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

A public nuisance under Chapter 19 can be enjoined regardless of the proximity of the nuisance to other structures. State ex rel. Onslow County v. Mercer, 128 N.C. App. 371, 496 S.E.2d 585, 1998 N.C. App. LEXIS 28 (1998).

Nuisance Need Not Be Nucleus of Crime. —

It is not essential to the nuisance defined by this section that the acts of the customers which impart that quality to the premises and the business conducted there should be violations of the criminal law, either generally speaking or under the terms of the statute, nor is it necessary that the nuisance declared should have a nucleus of crime essential to its existence. While nuisance is frequently associated with criminal offenses, the law is not under the necessity of predicating one crime upon another to make valid its denunciation of an act which it denominates a nuisance. State v. Brown, 221 N.C. 301 , 20 S.E.2d 286, 1942 N.C. LEXIS 457 (1942).

Establishing a Nuisance. —

Based upon reading G.S. 19-1(a) and G.S. 19-1.2(6) together, in order to establish a nuisance, a plaintiff must show that a defendant has leased or used the defendant’s property for the purpose of the illegal possession and sale of drugs, and as a means of showing the defendant’s purpose in leasing or operating the building, the plaintiff may present evidence that the sale of controlled substances has occurred regularly; the defendant will then be permitted to offer evidence of a lawful business purpose in order to negate the inference that drug transactions are the sole purpose of the leasing or use of the property. State ex rel. City of Salisbury v. Campbell, 169 N.C. App. 829, 610 S.E.2d 799, 2005 N.C. App. LEXIS 803 (2005).

Full-Fledged Civil Trial Contemplated. —

The basic statutory scheme is that one accused of operating a nuisance by the exhibition or sale of lewd materials should have a full-fledged civil trial during which he runs no risk of the imposition of a criminal penalty. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

Injunctions against Actions under Color of Legislative Authority. —

Ruling in State ex rel. Amick v. Lancaster, 228 N.C. 157 , 44 S.E.2d 733 (1947), in which an action was brought under this Chapter to enjoin as a nuisance the operation of a liquor store by a town pursuant to Session Laws 1947, c. 862, that since the alcoholic control board was acting “under color of legislative authority” the remedy by action under this Chapter was inappropriate should be restricted to actions to enjoin the operations of a governmental board acting “under color of legislative authority,” and should not be extended to actions to enjoin the operations of a private person, firm, association or corporation acting “under color of legislative authority.” State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80 , 84 S.E.2d 390, 1954 N.C. LEXIS 559 (1954).

Betting on dog races under a pari-mutuel system having no other purpose than that of providing the facilities for placing bets, calculating odds and determining winnings, if any, constitutes gambling, and is subject to abatement by injunction as a statutory nuisance under this Chapter unless specifically permitted by a constitutional statute. State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80 , 84 S.E.2d 390, 1954 N.C. LEXIS 559 (1954).

Race Track Operated under Unconstitutional Statute. —

Where the statute under which defendant maintains and operates a race track for pari-mutuel betting is unconstitutional, a private citizen may maintain an action in the name of the State to enjoin the operation of such track as a public nuisance in a proceeding under this Chapter. State ex rel. Summrell v. Carolina-Virginia Racing Ass'n, 239 N.C. 591 , 80 S.E.2d 638, 1954 N.C. LEXIS 617 (1954).

Establishment Facilitating Betting on Races. —

The maintenance of an establishment with ticker tape and other paraphernalia to facilitate the making of wagers on horse races, in which offers to lay wagers were transmitted to race tracks outside the State, and through which wagers were paid off to successful betters, constituted a public nuisance. State v. Brown, 221 N.C. 301 , 20 S.E.2d 286, 1942 N.C. LEXIS 457 (1942).

Opening of Safe on Premises Where Nuisance Maintained. —

Where, in an action under this Chapter to abate a public nuisance on the sole ground that the premises were used for the unlawful sale of whiskey, etc., a safe found in the padlocked building was opened by the sheriff and no whiskey or other intoxicating beverages were found therein, the court could not thereafter require that the safe be reopened for the purpose of taking an inventory thereof, there being nothing to show the materiality of anything in the safe as bearing upon the question of abatement. Such inventory would be an invasion of the property rights of defendant without due process of law. State ex rel. Hooks v. Flowers, 247 N.C. 558 , 101 S.E.2d 320, 1958 N.C. LEXIS 557 (1958).

Authority of Municipalities Concerning Nuisances. —

Under the authority conferred upon a municipal corporation to adopt ordinances for the government of the corporation and to abate nuisances, no power is granted to enact that the permitting of prostitution by the owner or occupant of any house therein shall constitute such owner or occupant the keeper of a house of ill fame, nor to declare what shall be a bawdy house or a disorderly house. State v. Webber, 107 N.C. 962 , 12 S.E. 598, 1890 N.C. LEXIS 180 (1890).

Admission of Evidence Held Error. —

Where defendant was not charged with maintaining a nuisance, the admission of evidence tending to show the general reputation of defendant’s premises was error. State v. Tessnear, 265 N.C. 319 , 144 S.E.2d 43, 1965 N.C. LEXIS 974 (1965).

Dismissal Upheld. —

Former hotel manager’s motion to dismiss a city’s nuisance claims under G.S. 19-1(a) was granted where the city had not served her with any notice of the alleged public nuisance and had not requested damages against her in the complaint, and she was no longer employed by nor a tenant or lessee of the hotel owners, was not present at the hotel, and was a private citizen when the city brought its claim. State ex rel. City of Albemarle v. Nance, 266 N.C. App. 353, 831 S.E.2d 605, 2019 N.C. App. LEXIS 608 (2019).

No Breach of Peace. —

In city’s nuisance action seeking to establish that 24 police trips to the landlords’ property over the course of several years constituted a breach of the peace pursuant G.S. 19-1(b) and G.S. 19-1.1(1) , seven of those police visits related to domestic incidents and one visit involving a search warrant did not constitute breaches of the peace, because there was no evidence that these events involved any threats to other citizens or disturbed the public order. State ex rel. City of Salisbury v. Campbell, 169 N.C. App. 829, 610 S.E.2d 799, 2005 N.C. App. LEXIS 803 (2005).

Nuisance Not Established. —

City of Salisbury failed to establish that the landlords’ property was a nuisance under G.S. 19-1.2 and G.S. 19-1(a) , because the property was not used for the purpose of the illegal possession and sale of drugs, as confirmed drug activity had occurred on the property only three times since 2000. State ex rel. City of Salisbury v. Campbell, 169 N.C. App. 829, 610 S.E.2d 799, 2005 N.C. App. LEXIS 803 (2005).

Three instances that could have constituted breaches of the peace — two assaults and one disturbance in which shots were fired — occurring over a two-and-a-half-year period, did not constitute a nuisance under G.S. 19-1(b) , because the instances did not meet the standard of repeated acts. State ex rel. City of Salisbury v. Campbell, 169 N.C. App. 829, 610 S.E.2d 799, 2005 N.C. App. LEXIS 803 (2005).

§ 19-1.1. Definitions.

As used in this Chapter relating to illegal possession or sale of obscene matter or to the other conduct prohibited in G.S. 19-1(a) , the following definitions shall apply:

  1. “Breach of the peace” means repeated acts that disturb the public order including, but not limited to, homicide, assault, affray, communicating threats, unlawful possession of dangerous or deadly weapons, and discharging firearms.

    (1a) “Knowledge” or “knowledge of such nuisance” means having knowledge of the contents and character of the patently offensive sexual conduct which appears in the lewd matter, or knowledge of the acts of lewdness. With regard to nuisances involving assignation, prostitution, gambling, the illegal possession or sale of alcoholic beverages, the illegal possession or sale of controlled substances as defined in the North Carolina Controlled Substances Act, or repeated acts which create and constitute a breach of the peace, evidence that the defendant knew or by the exercise of due diligence should have known of the acts or conduct constitutes proof of knowledge.

  2. “Lewd matter” is synonymous with “obscene matter” and means any matter:
    1. Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and
    2. Which depicts patently offensive representations of:
      1. Ultimate sexual acts, normal or perverted, actual or simulated;
      2. Masturbation, excretory functions, or lewd exhibition of the genitals or genital area;
      3. Masochism or sadism; or
      4. Sexual acts with a child or animal.

        Nothing herein contained is intended to include or proscribe any writing or written material, nor to include or proscribe any matter which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political, educational, or scientific value.

  3. “Lewdness” is synonymous with obscenity and shall mean the act of selling, exhibiting or possessing for sale or exhibition lewd matter.
  4. “Matter” means a motion picture film or a publication or both.
  5. “Motion picture film” shall include any:
    1. Film or plate negative;
    2. Film or plate positive;
    3. Film designed to be projected on a screen for exhibition;
    4. Films, glass slides or transparencies, either in negative or positive form, designed for exhibition by projection on a screen;
    5. Video tape, compact disc, digital video disc, or any other medium used to electronically reproduce images on a screen.
  6. “Person” means any individual, partnership, firm, association, corporation, or other legal entity.
  7. “Place” includes, but is not limited to, any building, structure or places, or any separate part or portion thereof, whether permanent or not, or the ground itself. (7a) “Preserving the status quo” as used in G.S. 19-2.3 means returning conditions to the last actual, peaceable, lawful, and noncontested status which preceded the pending controversy and not allow the nuisance to continue.

    (7b) “Prostitution” means offering in any manner or receiving of the body in return for a fee, for acts of vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, or physical contact with a person’s genitals, pubic area, buttocks, or breasts, or other acts of sexual conduct offered or received for pay and sexual gratification.

  8. “Publication” shall include any book, magazine, pamphlet, illustration, photograph, picture, sound recording, or a motion picture film which is offered for sale or exhibited in a coin-operated machine.
  9. “Sale of obscene or lewd matter” means a passing of title or right of possession from a seller to a buyer for valuable consideration, and shall include, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any valuable consideration is received for the use of, or transfer or possession of, lewd matter.
  10. “Sale” as the term relates to proscribed acts other than sale of obscene or lewd matter shall have the same meaning as the term is defined in Chapter 18B and Chapter 90 of the General Statutes prohibiting the illegal sale of alcoholic beverages and controlled substances respectively.
  11. “Used for profit” shall mean any use of real or personal property to produce income in any manner, including, but not limited to, any commercial or business activities, or selling, leasing, or otherwise providing goods and services for profit.

History. 1977, c. 819, s. 3; 1981, c. 412, s. 4; c. 747, s. 66; 1999-371, s. 2.

Cross References.

As to the North Carolina Controlled Substances Act, see G.S. 90-86 et seq.

Editor’s Note.

Subdivisions (1) and (1a) were renumbered as such at the direction of the Revisor of Statutes.

Legal Periodicals.

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

CASE NOTES

No Breach of Peace. —

In city’s nuisance action seeking to establish that 24 police trips to the landlords’ property over the course of several years constituted a breach of the peace pursuant G.S. 19-1(b) and G.S. 19-1.1(1) , seven of those police visits related to domestic incidents and one visit involving a search warrant did not constitute breaches of the peace, because there was no evidence that these events involved any threats to other citizens or disturbed the public order. State ex rel. City of Salisbury v. Campbell, 169 N.C. App. 829, 610 S.E.2d 799, 2005 N.C. App. LEXIS 803 (2005).

§ 19-1.2. Types of nuisances.

The following are declared to be nuisances wherein obscene or lewd matter or other conduct prohibited in G.S. 19-1(a) is involved:

  1. Any and every place in the State where lewd films are publicly exhibited as a predominant and regular course of business, or possessed for the purpose of such exhibition;
  2. Any and every place in the State where a lewd film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition;
  3. Any and every lewd film which is publicly exhibited, or possessed for such purpose at a place which is a nuisance under this Article;
  4. Any and every place of business in the State in which lewd publications constitute a principal or substantial part of the stock in trade;
  5. Any and every lewd publication possessed at a place which is a nuisance under this Article;
  6. Every place which, as a regular course of business, is used for the purposes of lewdness, assignation, gambling, the illegal possession or sale of alcoholic beverages, the illegal possession or sale of controlled substances as defined in the North Carolina Controlled Substances Act, or prostitution, and every such place in or upon which acts of lewdness, assignation, gambling, the illegal possession or sale of alcoholic beverages, the illegal possession or sale of controlled substances as defined in the North Carolina Controlled Substances Act, or prostitution, are held or occur.

History. 1977, c. 819, s. 3; 1981, c. 412, s. 4; c. 747, s. 66; 1999-371, s. 3.

CASE NOTES

In order for a bookstore to be a nuisance, the lewd publications must constitute a principal or substantial part of the stock in the trade. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

Not every isolated obscene publication is a nuisance that can be abated under G.S. 19-5 . First it must be found that the book or magazine is one of many, such that all together they make up a large part of the bookstore’s inventory. Once this initial determination is made, however, each individual obscene publication is a nuisance, and any and every one of them can be abated. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

Establishing a Nuisance. —

Based upon reading G.S. 19-1(a) and G.S. 19-1.2(6) together, in order to establish a nuisance, a plaintiff must show that a defendant has leased or used the defendant’s property for the purpose of the illegal possession and sale of drugs, and as a means of showing the defendant’s purpose in leasing or operating the building, the plaintiff may present evidence that the sale of controlled substances has occurred regularly; the defendant will then be permitted to offer evidence of a lawful business purpose in order to negate the inference that drug transactions are the sole purpose of the leasing or use of the property. State ex rel. City of Salisbury v. Campbell, 169 N.C. App. 829, 610 S.E.2d 799, 2005 N.C. App. LEXIS 803 (2005).

Burden on State to Prove Obscenity. —

The State is required to prove all the elements of obscenity found in subdivision (2) of this section in a nuisance action, including proof that the material as a whole lacks “serious literary, artistic, political, educational, or scientific value.” State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

Property Held Not Used for the Purpose of Illegal Possession and Sale of Drugs. —

City of Salisbury failed to establish that the landlords’ property was a nuisance under G.S. 19-1.2 and G.S. 19-1(a) , because the property was not used for the purpose of the illegal possession and sale of drugs, as confirmed drug activity had occurred on the property only three times since 2000. State ex rel. City of Salisbury v. Campbell, 169 N.C. App. 829, 610 S.E.2d 799, 2005 N.C. App. LEXIS 803 (2005).

§ 19-1.3. Personal property as a nuisance; knowledge of nuisance.

The following are also declared to be nuisances, as personal property used in conducting and maintaining a nuisance under this Chapter:

  1. All moneys paid as admission price to the exhibition of any lewd film found to be a nuisance;
  2. All valuable consideration received for the sale of any lewd publication which is found to be a nuisance;
  3. All money or other valuable consideration, vehicles, conveyances, or other property received or used in gambling, prostitution, the illegal sale of alcoholic beverages or the illegal sale of substances proscribed under the North Carolina Controlled Substances Act, as well as the furniture and movable contents of a place used in connection with such prohibited conduct. From and after service of a copy of the notice of hearing of the application for a preliminary injunction, provided for in G.S. 19-2.4 upon the place, or its manager, or acting manager, or person then in charge, all such parties are deemed to have knowledge of the contents of the restraining order and the use of the place occurring thereafter. Where the circumstantial proof warrants a determination that a person had knowledge of the nuisance prior to such service of process, the court may make such finding.

History. 1977, c. 819, s. 3; 1981, c. 412, s. 4; c. 747, s. 66; 1999-371, s. 4.

§ 19-1.4. Liability of successive owners for continuing nuisance.

After notice of a temporary restraining order, preliminary injunction, or permanent injunction, every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of such property, created by a former owner, is liable therefor in the same manner as the one who first created it.

History. 1977, c. 819, s. 3.

§ 19-1.5. Abatement does not preclude action.

The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.

History. 1977, c. 819, s. 3.

§ 19-2. [Repealed]

Repealed by Session Laws 1977, c. 819, s. 4.

Cross References.

For present provisions covering the subject matter of the repealed section, see G.S. 19-2.1 to 19-2.5.

§ 19-2.1. Action for abatement; injunction.

Wherever a nuisance is kept, maintained, or exists, as defined in this Article, the Attorney General, district attorney, county, municipality, or any private citizen of the county may maintain a civil action in the name of the State of North Carolina to abate a nuisance under this Chapter, perpetually to enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a nuisance under this Chapter; provided, however, that no private citizen may maintain such action where the alleged nuisance involves the illegal possession or sale of obscene or lewd matter.

Upon request from the Attorney General, district attorney, county or municipality, including the sheriff or chief of police of any county or municipality, the Alcohol Law Enforcement Division of the Department of Public Safety or any other law enforcement agency with jurisdiction may investigate alleged public nuisances and make recommendations regarding actions to abate the public nuisances.

If an action is instituted by a private person, the complainant shall execute a bond prior to the issuance of a restraining order or a temporary injunction, with good and sufficient surety to be approved by the court or clerk thereof, in the sum of not less than one thousand dollars ($1,000), to secure to the party enjoined the damages he may sustain if such action is wrongfully brought, not prosecuted to final judgment, or is dismissed, or is not maintained, or if it is finally decided that the temporary restraining order or preliminary injunction ought not to have been granted. The party enjoined shall have recourse against said bond for all damages suffered, including damages to his property, person, or character and including reasonable attorney’s fees incurred by him in making defense to said action. No bond shall be required of the prosecuting attorney, the Attorney General, county, or municipality, and no action shall be maintained against any public official or public entity, their employees, or agents for investigating or maintaining an action for abatement of a nuisance under the provisions of this Chapter.

History. 1977, c. 819, s. 4; 1995, c. 528, s. 1; 1999-371, s. 5; 2011-145, s. 19.1(g), (n); 2014-100, s. 17.1(xxx); 2019-203, s. 9(a).

Effect of Amendments.

Session Laws 2011-145, s. 19.1(g), (n), effective January 1, 2012, in the second paragraph, substituted “Alcohol Law Enforcement Section” for “Alcohol Law Enforcement Division” and substituted “Public Safety” for “Crime Control and Public Safety.”

Session Laws 2014-100, s. 17.1(xxx), effective July 1, 2014, substituted “Branch” for “Section” in the second paragraph.

Session Laws 2019-203, s. 9(a), effective October 1, 2019, substituted “Division” for “Branch” in the second paragraph.

Legal Periodicals.

For article, “The Common Law Powers of the Attorney General of North Carolina,” see 9 N.C. Cent. L.J. 1 (1977).

For comment on taxpayers’ actions, see 13 Wake Forest L. Rev. 397 (1977).

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1088 (1981).

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

For survey of 1981 constitutional law, see 60 N.C.L. Rev. 1272 (1982).

For comment discussing the constitutionality of North Carolina’s nuisance abatement statute, see 61 N.C.L. Rev. 685 (1983).

CASE NOTES

Editor’s Note. —

Many of the annotations set out below are from cases decided under former G.S. 19-2 .

An action to abate a public nuisance by injunction or otherwise must be maintained in the name of the State, and this section designates with particularity those who may become relators and prosecute the cause in the name of the State. Dare County v. Mater, 235 N.C. 179 , 69 S.E.2d 244, 1952 N.C. LEXIS 369 (1952).

County Commissioners May Not Prosecute Action in Name of County. —

While the members of a county board of commissioners may, as individuals, become relators under this section, they may not prosecute this action in the name of the county. Dare County v. Mater, 235 N.C. 179 , 69 S.E.2d 244, 1952 N.C. LEXIS 369 (1952).

Procedure Cannot Be Invoked against Alcoholic Control Board. —

It was never intended that the procedure here invoked to abate a nuisance should be applied against the alcoholic control board set up under color of legislative authority, or against one who rents a building to such a board for the purpose of operating a liquor control store. State ex rel. Amick v. Lancaster, 228 N.C. 157 , 44 S.E.2d 733, 1947 N.C. LEXIS 568 (1947), limited, State ex rel. Taylor v. Carolina Racing Asso., 241 N.C. 80 , 84 S.E.2d 390, 1954 N.C. LEXIS 559 (1954).

Proceeding Must Be Based on Specific Act Denounced by G.S. 19-1 . —

The proceeding by a citizen in the name of the State for injunction, the closing of a place of business and the seizure and sale of the personal property used therewith, must be based upon allegation and proof of one or more of the specific acts denounced by G.S. 19-1 . State ex rel. Dickey v. Alverson, 225 N.C. 29 , 33 S.E.2d 135, 1945 N.C. LEXIS 250 (1945).

Allegation of Direct Injury to Citizen Bringing Action Not Required. —

While ordinarily a resident and citizen may not enjoin public officials from putting into effect the provisions of a legislative enactment on the ground that the act is unconstitutional unless he alleges and proves that he will suffer direct injury, such allegation is not necessary in an action in the name of the State under this section to enjoin the maintenance of a gambling nuisance. State ex rel. Summrell v. Carolina-Virginia Racing Ass'n, 239 N.C. 591 , 80 S.E.2d 638, 1954 N.C. LEXIS 617 (1954).

Bond Requirement for Private Complainants is Constitutional. —

The provision of this statute requiring a private citizen to post a bond, while the district attorney is not required to do so, is a valid distinction and does not thereby constitute arbitrary and capricious State action. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

Burden on State to Prove Obscenity. —

The State is required to prove all the elements of obscenity found in G.S. 19-1.2(2) in a nuisance action, including proof that the material as a whole lacks “serious literary, artistic, political, educational, or scientific value.” State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) ((adopting opinion of 296 N.C. 251 by reference)) .

A public nuisance under Chapter 19 can be enjoined regardless of the proximity of the nuisance to other structures. State ex rel. Onslow County v. Mercer, 128 N.C. App. 371, 496 S.E.2d 585, 1998 N.C. App. LEXIS 28 (1998).

Evidence Supporting Abatement. —

The evidence disclosed that defendant operated a tourist camp with filling station, dining room and dance hall in front, and cabins in the rear, that the camp was on highway in a thickly settled rural community, that whiskey and contraceptives were sold, that drunken men and women were seen nightly at the place, and seen to go in the cabins in pairs and stay for a short time, that the community was constantly awakened at night by loud and boisterous conduct and profanity, that fighting occurred between drunken men and women, with many of both sexes nude or indecently clad, and that the general reputation of the place was bad, is held amply sufficient to be submitted to the jury upon the issue of whether the place constituted a nuisance against public morals as defined by G.S. 19-1 , and to support a judgment for its abatement in accordance with this section in an action brought by the solicitor (now district attorney) as relator. State ex rel. Carpenter v. Boyles, 213 N.C. 432 , 196 S.E. 850, 1938 N.C. LEXIS 110 (1938).

Lease Is Made in Contemplation of Statute. —

A lease contract will be held to have been made in contemplation of the statute in effect at the time of the execution of the lease, providing for the abatement of nuisance against public morals, and the lessor is subject to the rights of the State to padlock the premises in accordance with the statute if they are used in operating a nuisance as defined by the act. Barker v. Palmer, 217 N.C. 519 , 8 S.E.2d 610, 1940 N.C. LEXIS 280 (1940).

Assistance by Private Counsel. —

The State Constitution and G.S. 7A-61 , 147-89 and 19-2.1 do not prohibit a district attorney from employing private counsel to assist in public nuisance actions. Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997), rev'd, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).

Compensation for Attorney. —

Section 19-8 is the proper source of compensation for an attorney representing a prevailing party in a public nuisance action, at least when the State has not expressly entered into a valid contract for such legal services. Whitfield v. Gilchrist, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).

The enactment of G.S. 19-8 indicates that the legislature contemplated only one noncontractural method of payment for attorneys who undertake to maintain, on behalf of anyone, a civil action to abate a nuisance as authorized by this section. Whitfield v. Gilchrist, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).

§ 19-2.2. Pleadings; jurisdiction; venue; application for preliminary injunction.

The action, provided for in this Chapter, shall be brought in the superior court of the county in which the property is located. Such action shall be commenced by the filing of a verified complaint alleging the facts constituting the nuisance. After the filing of said complaint, application for a preliminary injunction may be made to the court in which the action is filed which court shall grant a hearing within 10 days after the filing of said application.

History. 1977, c. 819, s. 4.

Legal Periodicals.

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

CASE NOTES

A complaint in an action to abate a nuisance is sufficient if it denominates the type of nuisance sought to be abated and the conduct complained of is declared a nuisance under the statute. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

§ 19-2.3. Temporary order restraining removal of personal property from premises; service; punishment.

Where such application for a preliminary injunction is made, the court may, on application of the complainant showing good cause, issue an ex parte temporary restraining order in accordance with G.S. 1A-1 , Rule 65(b), preserving the status quo and restraining the defendant and all other persons from removing or in any manner interfering with any evidence specifically described, or in any manner removing or interfering with the personal property and contents of the place where such nuisance is alleged to exist, until the decision of the court granting or refusing such preliminary injunction and until further order of the court thereon. Nothing herein shall be interpreted to allow the prior restraint of the distribution of any matter or the sale of the stock in trade, but an inventory and full accounting of all business transactions involving alleged obscene or lewd matter thereafter shall be required. The inventory provisions provided by this section shall not apply to nuisances occurring at a private dwelling place unless the court finds the private dwelling place is used for profit.

Any person, firm, or corporation enjoined pursuant to this section may file with the court a motion to dissolve any temporary restraining order. Such a motion shall be heard within 24 hours of the time a copy of the motion is served on the complaining party, or on the next day the superior courts are open in the district, whichever is later. At such hearing the complaining party shall have the burden of showing why the restraining order should be continued.

In the event a temporary restraining order is issued, it may be served in accordance with the provisions of G.S. 1A-1 , Rule 4, or may be served by handing to and leaving a copy of such order with any person in charge of such place or residing therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to such place, or by such service under said Rule 4, delivery and posting. The officer serving such temporary restraining order shall forthwith enter upon the property and make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining such nuisance.

Any violation of such temporary restraining order is a contempt of court, and where such order is posted, mutilation or removal thereof, while the same remains in force, is a contempt of court, provided such posted order contains therein a notice to that effect.

History. 1977, c. 819, s. 4; 1999-371, s. 6.

Cross References.

As to constitutionality of final order and judgment under this Article, see note to G.S. 19-5 .

Legal Periodicals.

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1088 (1981).

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

CASE NOTES

Temporary Restraining Order Does Not Operate as Prior Restraint. —

The temporary restraining order authorized to be issued following the filing of the complaint and application for a preliminary injunction does not operate as a prior restraint on the distribution of particular publications and motion pictures presumptively protected by U.S. Const., Amend. I until an adversary hearing determines otherwise. Fehlhaber v. North Carolina, 445 F. Supp. 130, 1978 U.S. Dist. LEXIS 20359 (E.D.N.C. 1978), rev'd, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

The right of the public under U.S. Const., Amend. I to receive information is unaffected by the temporary restraining order, and the parallel right of the distributors to dispense the information is not discernibly chilled. Fehlhaber v. North Carolina, 445 F. Supp. 130, 1978 U.S. Dist. LEXIS 20359 (E.D.N.C. 1978), rev'd, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

Construction of Inventory and Full Accounting Provisions of Section. —

Reading this section as a whole, the apparent purpose of the inventory and accounting provision is to provide the factual basis for the determination of whether the business deals in obscene items as a “substantial” portion of its stock in trade, in the case of bookstores, or “in the regular course of business,” in the case of theaters. Such purpose could be accomplished by a full accounting that included no more than the date, item purchased, and amount paid. Because a statute may be declared unconstitutional on its face only if it offers no plausible constitutional interpretation, the court adopts this construction of the full accounting provision and not a construction which would require the recording of individual customers who purchase books or attend movies. Fehlhaber v. North Carolina, 445 F. Supp. 130, 1978 U.S. Dist. LEXIS 20359 (E.D.N.C. 1978), rev'd, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

The requirement of an inventory by an officer does not require a warrantless search in contravention of U.S. Const., Amend. IV, since the clearest reading of the provision is that it directs an officer to enter an establishment that is open to the public and from that vantage point, make an inventory of items of personal property in plain view. Fehlhaber v. North Carolina, 445 F. Supp. 130, 1978 U.S. Dist. LEXIS 20359 (E.D.N.C. 1978), rev'd, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

Order Does Not Take Private Property Without Due Process or Equal Protection. —

The fact that the district attorney, upon filing a nuisance complaint, can obtain a temporary restraining order pursuant to this section without posting bond and without notice to the persons restrained does not constitute the taking of private property without due process or equal protection since the statute does not authorize the seizure or destruction of property but merely preserves the status quo until a hearing can be held; the statute establishes a procedure for the owner of the property in question immediately to challenge the validity of the temporary restraining order and places the burden of its continuance on the district attorney; and the procedure mandated by G.S. 1A-1 , Rule 65(b) applies to the issuance of the temporary restraining order. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

Error to Find Defendant in Contempt for Acts Not Forbidden. —

It was error to find defendant in contempt for removing a copy of a temporary restraining order and padlocks from premises described as a public nuisance where temporary restraining order did not specifically forbid defendant from doing those acts. State ex rel. Zimmerman v. Mason, 54 N.C. App. 155, 282 S.E.2d 518, 1981 N.C. App. LEXIS 2814 (1981).

§ 19-2.4. Notice of hearing on preliminary injunction; consolidation.

A copy of the complaint, together with a notice of the time and place of the hearing of the application for a preliminary injunction, shall be served upon the defendant at least five days before such hearing. The place may also be served by posting such papers in the same manner as is provided for in G.S. 19-2.3 in the case of a temporary restraining order. If the hearing is then continued at the instance of any defendant, the temporary restraining order may be continued as a matter of course until the hearing.

Before or after the commencement of the hearing of an application for a preliminary injunction, the court, on application of either of the parties or on its own motion, may order the trial of the action on the merits to be advanced and consolidated with the hearing on the application for the preliminary injunction; provided, however, the defendant shall be entitled to a jury trial if requested.

History. 1977, c. 819, s. 4.

Legal Periodicals.

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

For comment discussing the constitutionality of North Carolina’s nuisance abatement statute, see 61 N.C.L. Rev. 685 (1983).

CASE NOTES

No Preliminary Restraints of Indefinite Duration Authorized. —

This section and G.S. 19-2.5 together authorize a preliminary injunction, but the second paragraph of this section authorizes the court to advance the trial on the merits to the hearing on the motion. In any event, under G.S. 19-3 , the trial on the merits must be held at the next term of court following the filing of the complaint. It is given priority over all other civil cases, except election contests or other injunction cases. Thus, no preliminary restraints of indefinite duration are authorized. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

§ 19-2.5. Hearing on the preliminary injunction; issuance.

If upon hearing, the allegations of the complaint are sustained to the satisfaction of the court, the court shall issue a preliminary injunction restraining the defendant and any other person from continuing the nuisance and effectually enjoining its use thereafter for the purpose of conducting any such nuisance. The court may, in its discretion, order the closure of the property pending trial on the merits.

History. 1977, c. 819, s. 4; 1999-371, s. 7.

Legal Periodicals.

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

CASE NOTES

No Preliminary Restraints of Indefinite Duration Authorized. —

Section 19-2.4 and this section together authorize a preliminary injunction, but the second paragraph of G.S. 19-2.4 authorizes the court to advance the trial on the merits to the hearing on the motion. In any event, under G.S. 19-3 , the trial on the merits must be held at the next term of court following the filing of the complaint. It is given priority over all other civil cases, except election contests or other injunction cases. Thus, no preliminary restraints of indefinite duration are authorized. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

§ 19-3. Priority of action; evidence.

  1. The action provided for in this Chapter shall be set down for trial at the first term of the court and shall have precedence over all other cases except crimes, election contests, or injunctions.
  2. In such action, an admission or finding of guilt of any person under the criminal laws against lewdness, assignation, prostitution, gambling, breaches of the peace, the illegal possession or sale of alcoholic beverages, or the illegal possession or sale of substances proscribed by the North Carolina Controlled Substances Act, at any such place, is admissible for the purpose of proving the existence of said nuisance, and is evidence of such nuisance and of knowledge of, and of acquiescence and participation therein, on the part of the person charged with maintaining said nuisance.
  3. At all hearings upon the merits, evidence of the general reputation of the building or place constituting the alleged nuisance, of the inmates thereof, and of those resorting thereto, is admissible for the purpose of proving the existence of such nuisance.

History. Pub. Loc. 1913, c. 761, s. 27; 1919, c. 288; C.S., s. 3182; 1971, c. 528, s. 6; 1973, c. 47, s. 2; 1977, c. 819, s. 5; 1981, c. 412, s. 4; c. 747, s. 66; 1999-371, s. 8.

Cross References.

As to admissibility of certain evidence relative to keeping disorderly houses in criminal proceedings, see § 14-188.

CASE NOTES

Admission of General Reputation Evidence Is Constitutional. —

The admission into evidence of the general reputation of the building or place allegedly constituting a nuisance does not permit an unconstitutional taking of property in a trial by rumor, hearsay, and innuendo, and does not deny defendants of their right of cross-examination. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

Such Evidence Is Competent in Action to Abate Nuisance. —

Evidence of the general reputation of the place in question is competent in an action to abate a public nuisance. State ex rel. Carpenter v. Boyles, 213 N.C. 432 , 196 S.E. 850, 1938 N.C. LEXIS 110 (1938).

But Section Does Not Apply Where Defendant Not Charged With Maintaining Nuisance. —

This section, which makes evidence of the general reputation of the place admissible for the purpose of proving a nuisance, is not applicable where the defendant is not charged with maintaining a nuisance. State v. Tessnear, 265 N.C. 319 , 144 S.E.2d 43, 1965 N.C. LEXIS 974 (1965).

Hence, evidence of the general reputation of defendant’s premises is inadmissible in prosecutions for liquor-law violations involving a charge of unlawful sale or possession of intoxicants at particular premises. State v. Tessnear, 265 N.C. 319 , 144 S.E.2d 43, 1965 N.C. LEXIS 974 (1965).

No Preliminary Restraints of Indefinite Duration Authorized. —

Sections 19-2.4 and 19-2.5 together authorize a preliminary injunction, but the second paragraph of G.S. 19-2.4 authorizes the court to advance the trial on the merits to the hearing on the motion. In any event, under this section the trial on the merits must be held at the next term of court following the filing of the complaint. It is given priority over all other civil cases, except election contests or other injunction cases. Thus, no preliminary restraints of indefinite duration are authorized. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

§ 19-4. Violation of injunction; punishment.

In case of the violation of any injunction granted under the provisions of this Chapter, the court, or, in vacation, a judge thereof, may summarily try and punish the offender. A party found guilty of contempt under the provisions of this section shall be punished by a fine of not less than two hundred ($200.00) or more than one thousand dollars ($1,000), or by imprisonment in the county jail not less than three or more than six months, or by both fine and imprisonment.

History. Pub. Loc. 1913, c. 761, s. 28; 1919, c. 288; C.S., s. 3183.

Legal Periodicals.

For survey of 1981 constitutional law, see 60 N.C.L. Rev. 1272 (1982).

For comment discussing the constitutionality of North Carolina’s nuisance abatement statute, see 61 N.C.L. Rev. 685 (1983).

CASE NOTES

Constitutionality. —

Since neither a fine nor imprisonment can be imposed upon a defendant in moral nuisance proceedings unless and until it has been judicially determined that he has sold or exhibited obscene matter, the “prior restraint” imposed by the moral nuisance statutes, if any, is neither more onerous nor more objectionable than a criminal sanction meted out after the fact of sale or exhibition and, therefore, is constitutionally permissible. Chateau X, Inc. v. State ex rel. Andrews, 302 N.C. 321 , 275 S.E.2d 443, 1981 N.C. LEXIS 1056 (1981).

There can be no finding of contempt until the State has proven beyond a reasonable doubt that defendant subsequently has operated a prohibited nuisance, a commercial enterprise in which at least a substantial part of the business is the exhibition or sale of obscene material. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

Judicial Determination Prerequisite to Imposition of Punishment. —

No penalty, whether it be a fine or imprisonment, can be imposed upon a defendant for distribution of obscene matter unless and until it has been judicially determined that he has sold or exhibited the obscene matter. Chateau X, Inc. v. State ex rel. Andrews, 302 N.C. 321 , 275 S.E.2d 443, 1981 N.C. LEXIS 1056 (1981).

Plenary Proceedings for Contempt. —

The plenary proceedings provided for in G.S. 5A-15 apply to contempt actions following an injunction under this Chapter. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) ((adopting opinion of 296 N.C. 251 by reference)) .

While under constraint of the injunction, defendant is perfectly free to operate a legitimate business. He may sell pictorial and other magazines, and so long as he stocks the kind of magazines usually to be found on news and magazine stands, he need not be concerned that an occasional item might be found to be obscene. Moreover, he need not refuse to carry a certain magazine, for even if a particular issue of that magazine should be found obscene in another context, he would not be guilty of a violation of the injunction, with more explicitly defined restraints and with the limitation that his business may not be found to be a violating nuisance unless a substantial part of his inventory is prohibited material. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

§ 19-5. Content of final judgment and order.

If the existence of a nuisance is admitted or established in an action as provided for in this Chapter an order of abatement shall be entered as a part of the judgment in the case, which judgment and order shall perpetually enjoin the defendant and any other person from further maintaining the nuisance at the place complained of, and the defendant from maintaining such nuisance elsewhere within the jurisdiction of this State. Lewd matter, illegal alcoholic beverages, gambling paraphernalia, or substances proscribed under the North Carolina Controlled Substances Act shall be destroyed and not be sold.

Such order may also require the effectual closing of the place against its use thereafter for the purpose of conducting any such nuisance.

The provisions of this Article, relating to the closing of a place with respect to obscene or lewd matter, shall not apply in any order of the court to any theatre or motion picture establishment which does not, in the regular, predominant, and ordinary course of its business, show or demonstrate lewd films or motion pictures, as defined in this Article, but any such establishment may be permanently enjoined from showing such film judicially determined to be obscene hereunder and such film or motion picture shall be destroyed and all proceeds and moneys received therefrom, after the issuance of a preliminary injunction, forfeited.

History. Pub. Loc. 1913, c. 761, s. 29; 1919, c. 288; C.S., s. 3184; 1977, c. 819, s. 6; 1981, c. 412, s. 4; c. 747, s. 66.

Legal Periodicals.

For survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

CASE NOTES

Constitutionality. —

Even if this section unconstitutionally authorizes a judge to close a business after it has been declared a nuisance because of past exhibitions or sales of obscene material, a question not before the Supreme Court, it is severable from the remaining provisions of this Chapter and does not render this Chapter unconstitutional on its face. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

Restraining Order Held Not Unconstitutional Prior Restraint. —

An order restraining defendants from selling or exhibiting obscene matter not actually before the court was not an unconstitutional prior restraint of their right of free speech in light of the unquestionably obscene nature of all of defendants’ films and magazines before the court, the fact that the defendants were adequately warned of which materials they could not sell or exhibit by the specifically drawn order, and the procedural safeguards afforded the defendants. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

The plenary proceedings provided for in G.S. 5A-15 apply to contempt actions following a Chapter 19 injunction. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

Not every isolated obscene publication is a nuisance that can be abated under this section. First it must be found that the book or magazine is one of many, such that all together they make up a large part of the bookstore’s inventory. Once this initial determination is made, however, each individual obscene publication is a nuisance, and any and every one of them can be abated. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

The legislature intended for judges to have some discretion in abating nuisances. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

Discretion of Judge in Formulating Abatement Order. —

Once a business has been established as a nuisance, the judge is not required to enjoin the future distribution of any and all obscene matter as defined by G.S. 19-1.1(2) . The trial judge necessarily must be given some discretion in formulating his abatement order. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

If an abatement order issues, the trial court has some discretion to define what conduct is prohibited, as long as it falls within constitutional and statutory mandates, and he has the duty to specifically warn the defendant of the prohibited conduct. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

Injunction Upheld. —

Where trial judge enjoined only the sale of “illegal lewd matter,” which is correctly and completely defined in G.S. 19-1.2(2) , but did not specifically state that the sexual conduct being depicted be “patently offensive,” this minor omission was not fatal to the injunction. State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251 , 250 S.E.2d 603, 1979 N.C. LEXIS 1147 (1979), vacated, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782, 1980 U.S. LEXIS 1299 (1980) (adopting opinion of 296 N.C. 251 by reference) .

A defendant under an injunction need have no fear if he opens a traditional magazine stand in a hotel. However, if he reopens an “adult bookstore” and fills it with explicit displays of sexual activity altogether comparable with the materials for the sale of which he has already been found to be in violation of the law, the fact that different couples were performing does not detract from the adequacy of his forewarning. Fehlhaber v. North Carolina, 675 F.2d 1365, 1982 U.S. App. LEXIS 20067 (4th Cir. 1982).

§ 19-6. Civil penalty; forfeiture; accounting; lien as to expenses of abatement; invalidation of lease.

Lewd matter is contraband, and there are no property rights therein. All personal property, including all money and other considerations, declared to be a nuisance under the provisions of G.S. 19-1.3 and other sections of this Article, are subject to forfeiture to the local government and are recoverable as damages in the county wherein such matter is sold, exhibited or otherwise used. Such property including moneys may be traced to and shall be recoverable from persons who, under G.S. 19-2.4 , have knowledge of the nuisance at the time such moneys are received by them.

Upon judgment against the defendant or defendants in legal proceedings brought pursuant to this Article, an accounting shall be made by such defendant or defendants of all moneys received by them which have been declared to be a nuisance under this Article. An amount equal to the sum of all moneys estimated to have been taken in as gross income from such unlawful commercial activity shall be forfeited to the general funds of the city and county governments wherein such activity took place, to be shared equally, as a forfeiture of the fruits of an unlawful enterprise, and as partial restitution for damages done to the public welfare; provided, however, that no provision of this Article shall authorize the recovery of any moneys or gross income received from the sale of any book, magazine, or exhibition of any motion picture prior to the issuance of a preliminary injunction. Where the action is brought pursuant to this Article, special injury need not be proven, and the costs of abatement are a lien on both the real and personal property used in maintaining the nuisance. Costs of abatement include, but are not limited to, reasonable attorney’s fees and court costs.

Upon the filing of the action, the plaintiff may file a notice of lis pendens in the official records of the county where the property is located.

If it is judicially found after an adversary hearing pursuant to this Article that a tenant or occupant of a building or tenement, under a lawful title, uses such place for the purposes of lewdness, assignation, prostitution, gambling, sale or possession of illegal alcoholic beverages or substances proscribed under the North Carolina Controlled Substances Act, or repeated acts which create and constitute a breach of the peace, such use makes void the lease or other title under which he holds, at the option of the owner, and, without any act of the owner, causes the right of possession to revert and vest in such owner.

The clear proceeds of civil penalties and forfeitures provided for in this section, except for penalties and properties that accrue to local governments instead of the State, shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2 .

History. Pub. Loc. 1913, c. 761, s. 30; 1919, c. 288; C.S., s. 3185; 1977, c. 819, s. 7; 1981, c. 412, s. 4; c. 747, s. 66; 1998-215, s. 106; 1999-371, s. 9.

Local Modification.

McDowell: 1959, c. 590, s. 3.

Legal Periodicals.

For note and comment on asset forfeiture, see 19 Campbell L. Rev. 527 (1997).

CASE NOTES

Fees awarded to the plaintiff’s attorneys and to the court-appointed referee in cases under G.S. 19-1 et seq. are a matter within the court’s discretion, and, absent an abuse of that discretion, such amounts will not be disturbed on appeal. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

§ 19-6.1. Forfeiture of real property.

In all actions where a preliminary injunction, permanent injunction, or an order of abatement is issued pursuant to this Article in which the nuisance consists of or includes at least two prior occurrences within five years of the manufacture, possession with intent to sell, or sale of controlled substances as defined by the North Carolina Controlled Substances Act, two prior occurrences of the possession of any controlled substance included within Schedule I or II of that Act, or two prior convictions within five years of violation of G.S. 14-72.7 , the real property on which the nuisance exists or is maintained is subject to forfeiture in accordance with this section. In the case of the two prior convictions of G.S. 14-72.7 , the convictions shall not arise out of the same transaction or occurrence.

If all of the owners of the property are defendants in the action, the plaintiff, other than a plaintiff who is a private citizen, may request forfeiture of the real property as part of the relief sought. If forfeiture is requested, and if jurisdiction over all defendant owners is established, upon judgment against the defendant or defendants, the court shall order forfeiture as follows:

  1. If the court finds by clear and convincing evidence that all the owners either (i) have participated in maintaining the nuisance on the property, or (ii) prior to the action had written notice from the plaintiff, or any governmental agent or entity authorized to bring an action pursuant to this Chapter, that the nuisance existed or was maintained on the property and have not made good faith efforts to stop the nuisance from occurring or recurring, the court shall order that the property be forfeited;
  2. If the court finds that one or more of the owners did not participate in maintaining the nuisance on the property or did not have written notice from the plaintiff prior to the action that the nuisance existed or was maintained on the property, the court shall not order forfeiture of the property immediately upon judgment. However, if after judgment and an order directing the defendants to abate the nuisance, the nuisance either continues, begins again, or otherwise recurs within five years of the order and the defendants have not made good faith efforts to abate the nuisance, the plaintiff may petition the court for forfeiture. Upon such petition, the defendant owner or owners shall be given notice and an opportunity to appear and be heard at a hearing to determine the continuation or recurrence of the nuisance. If, in this hearing (i) the plaintiff establishes by clear and convincing evidence that the nuisance, with the owner’s or owners’ knowledge, has either continued, begun again, or otherwise recurred, and (ii) the defendants fail to establish that they have made and are continuing to make good faith efforts to abate the nuisance, the court shall order that the property be forfeited.

    For the purposes of this section, factors which may evidence good faith by the defendant to abate the nuisance include but are not limited to (i) cooperation with law enforcement authorities to abate the nuisance; (ii) lease restrictions prohibiting the illegal possession or sale of narcotic drugs and an action to evict a tenant for any violations of the lease provision; (iii) a criminal record check of prospective tenants; and (iv) reference checks of prior residency of prospective tenants.

    Upon an order of forfeiture, title to the property shall vest in the school board of the county in which the property is located. If at the time of forfeiture the property is subject to a lien or security interest of a person not participating in the maintenance of the nuisance, the school board shall either (i) pay an amount to that person satisfying the lien or security interest; or (ii) sell the property and satisfy the lien or security interest from the proceeds of the sale. If the property is not subject to any lien or security interest at the time of forfeiture, the school board may hold, maintain, lease, sell, or otherwise dispose of the property as it sees fit.

    Upon the filing of the action, the plaintiff may file a notice of lis pendens in the official records of the county where the property is located. If the plaintiff files a notice of lis pendens, any person purchasing or obtaining an interest in the property thereafter shall be considered to have notice of the alleged nuisance, and shall forfeit his interest in the property upon a judgment of forfeiture in favor of the plaintiff.

    If in the same action in which real property is forfeited the court finds that a tenant or occupant of the property participated in or maintained the nuisance, the lease or other title under which the tenant or occupant holds is void, and the right of possession vests in the new owner. Upon forfeiture, the rights of innocent tenants occupying separate units of the property who were not involved in the nuisance at the time the action was filed shall be in accordance with any relevant lease provisions in effect at the time or, in the absence of relevant lease provisions, in accordance with the law applying to other tenants or occupants of property that is sold, foreclosed upon, or otherwise obtained by new owners.

History. 1995, c. 528, s. 2; 1999-371, s. 10; 2007-178, s. 4.

Effect of Amendments.

Session Laws 2007-178, s. 4, effective December 1, 2007, and applicable to offenses committed on or after that date, in the first paragraph, inserted “or two prior convictions within five years of violation of G.S. 14-72.7 ” and made a related change in the first sentence, and added the last sentence.

§ 19-7. How order of abatement may be canceled.

If the owner appears and pays all cost of the proceeding and files a bond, with sureties to be approved by the clerk, in the full value of the property, to be ascertained by the court, or, in vacation, by the clerk of the superior court, conditioned that he will immediately abate said nuisance, and prevent the same from being established or kept within a period of one year thereafter, the court may, if satisfied of his good faith, order the premises closed under the order of abatement to be delivered to said owner, and said order of abatement canceled so far as same may relate to said property; and if the proceeding be a civil action, and said bond be given and costs therein paid before judgment and order of abatement, the action shall be thereby abated as to said building only. The release of the property under the provisions of this section shall not release it from any judgment, lien, penalty, or liability to which it may be subject by law.

History. Pub. Loc. 1913, c. 761, s. 31; 1919, c. 288; C.S., s. 3186.

§ 19-8. Costs.

The prevailing party shall be entitled to his costs. The court shall tax as part of the costs in any action brought hereunder such fee for the attorney prosecuting or defending the action or proceedings as may in the court’s discretion be reasonable remuneration for the services performed by such attorney.

History. Pub. Loc. 1913, c. 761, s. 32; 1919, c. 288; C.S., s. 3187; 1977, c. 819, s. 8.

Local Modification.

McDowell: 1959, c. 590, s. 4.

CASE NOTES

Intent of Legislature. —

The enactment of this section indicates that the legislature contemplated only one noncontractural method of payment for attorneys who undertake to maintain, on behalf of anyone, a civil action to abate a nuisance as authorized by G.S. 19-2.1 . Whitfield v. Gilchrist, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).

Proper Source of Compensation. —

This section is the proper source of compensation for an attorney representing a prevailing party in a public nuisance action, at least when the State has not expressly entered into a valid contract for such legal services. Whitfield v. Gilchrist, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).

Fees Discretionary. —

The allowance of a fee is a matter in the discretion of the trial judge. State ex rel. Bowman v. Fipps, 266 N.C. 535 , 146 S.E.2d 395, 1966 N.C. LEXIS 1381 (1966).

Fees awarded to the plaintiff’s attorneys and to the court-appointed referee in cases under G.S. 19-1 et seq. are a matter within the court’s discretion, and, absent an abuse of that discretion, such amounts will not be disturbed on appeal. State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 269 S.E.2d 646, 1980 N.C. App. LEXIS 3284 (1980).

§ 19-8.1. Immunity.

The provisions of any criminal statutes with respect to the exhibition of, or the possession with the intent to exhibit, any obscene film shall not apply to a motion picture projectionist, usher, or ticket taker acting within the scope of his employment, provided that such projectionist, usher, or ticket taker: (i) Has no financial interest in the place wherein he is so employed, and (ii) freely and willingly gives testimony regarding such employment in any judicial proceedings brought under this Chapter, including pretrial discovery proceedings incident thereto, when and if such is requested, and upon being granted immunity by the trial judge sitting in such matters.

History. 1977, c. 819, s. 9.

§ 19-8.2. Right of entry.

Authorized representatives of the Commission for Public Health, any local health department or the Department of Health and Human Services, upon presenting appropriate credentials to the owner, operator, or agent in charge of a place described in G.S. 19-1.2 , are authorized to enter without delay and at any reasonable time any such place in order to inspect and investigate during the regular hours of operation of such place.

History. 1977, c. 819, s. 9; 1997-443, s. 11A.118(a); 2007-182, s. 2.

Effect of Amendments.

Session Laws 2007-182, s. 2, effective July 5, 2007, substituted “Commission for Public Health” for “Commission for Health Services.”

§ 19-8.3. Severability.

If any section, subsection, sentence, or clause of this Article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portion of this Article. It is hereby declared that this Article would have been passed, and each section, sentence, or clause thereof, irrespective of the fact that any one or more sections, subsections, sentences or clauses might be adjudged to be unconstitutional, or for any other reason invalid.

History. 1977, c. 819, s. 10.

§ 19-8.4. Human trafficking public awareness sign.

The owner, operator, or agent in charge of a business described in G.S. 19-1.2 shall prominently display on the premises in a place that is clearly conspicuous and visible to employees and the public a public awareness sign created and provided by the North Carolina Human Trafficking Commission that contains the National Human Trafficking Resource hotline information.

History. 2017-57, s. 17.4(c); 2017-197, s. 5.8.

Editor’s Note.

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2017-57, s. 17.4(g), as amended by Session Laws 2017-197, s. 5.8, made this section effective January 1, 2018.

Article 2. Civil Remedy for Sales of Harmful Materials to Minors.

§ 19-9. Title.

This Article shall be known and cited as the North Carolina Law on the Protection of Minors from Harmful Materials.

History. 1969, c. 1215, s. 1.

Cross References.

As to obscene literature and exhibitions, see §§ 14-190.1 through 14-190.8.

Legal Periodicals.

For comment on requirement and techniques for holding adversary hearing prior to seizure of obscene material, see 48 N.C.L. Rev. 830 (1970).

For article, “Regulating Obscenity Through the Power to Define and Abate Nuisances,” see 14 Wake Forest L. Rev. 1 (1978).

§ 19-10. Purposes.

The purposes of this Article are to provide district attorneys with a speedy civil remedy for obtaining a judicial determination of the character and contents of publications, and with an effective power to enjoin promptly the sale of harmful materials to minors.

History. 1969, c. 1215, s. 1; 1971, c. 528, s. 7; 1973, c. 47, s. 2.

§ 19-11. Public policy.

The public policy of this State requires that all proceedings prescribed in this Article shall be examined, heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of the press and freedom of speech.

History. 1969, c. 1215, s. 1.

§ 19-12. Definitions.

As used within this Article, the following definitions shall apply:

  1. “Harmful Material”.—
    1. Any picture, photograph, drawing, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sadomasochistic abuse, and which is harmful to minors, or
    2. Any book, pamphlet, magazine, or printed matter however reproduced which contains any matter enumerated in subparagraph a of this subdivision or which contains explicit or detailed verbal descriptions or accounts of sexual excitement, sexual conduct or sadomasochistic abuse, and which, taken as a whole, is harmful to minors.
  2. “Harmful to minors”. — That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:
    1. Predominantly appeals to the prurient, shameful or morbid interest of minors, and
    2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable materials for minors, and
    3. Is utterly without redeeming social importance for minors.
  3. “Knowledge of the Minor’s Age”.—
    1. Knowledge or information that the person is a minor, or
    2. Reason to know, or a belief or ground for belief which warrants further inspection or inquiry as to, the age of the minor.
  4. “Knowledge of the Nature of the Material”.—
    1. Knowledge of the character and content of any material described herein, or
    2. Knowledge or information that the material described herein has been adjudged to be harmful to minors in a proceeding instituted pursuant to this Article, or is the subject of a pending proceeding instituted pursuant to this Article.
  5. “Minor”.— Any person under the age of 18 years.
  6. “Nudity”.— The showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
  7. “Person”.— Any individual, partnership, firm, association, corporation or other legal entity.
  8. “Sadomasochistic abuse”.— Flagellation or torture by or upon a person clad in undergarments, a mask or a bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
  9. “Sexual conduct”.— Acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.
  10. “Sexual excitement”.— The condition of human male or female genitals when in a state of sexual stimulation or arousal.

History. 1969, c. 1215, s. 1.

§ 19-13. Commencement of civil proceeding.

  1. Whenever the district attorney for any prosecutorial district has reasonable cause to believe that any person is engaged in selling, distributing or disseminating in any manner harmful material to minors or may become engaged in selling, distributing or disseminating in any manner harmful material to minors, the district attorney for the prosecutorial district in which such material is so offered for sale shall institute an action in the district court for that district for adjudication of the question of whether such material is harmful to minors.
  2. The provisions of the Rules of Civil Procedure and all existing and future amendments of said Rules shall apply to all proceedings herein, except as otherwise provided in this Article.

History. 1969, c. 1215, s. 1; 1971, c. 528, s. 8; 1973, c. 47, s. 2; 1987 (Reg. Sess., 1988), c. 1037, s. 73.

Cross References.

For Rules of Civil Procedure, see G.S. 1A-1 .

Legal Periodicals.

For comment on requirement and techniques for holding adversary hearing prior to seizure of obscene material, see 48 N.C.L. Rev. 830 (1970).

§ 19-14. Filing and form of complaint.

The action authorized by this Article shall be commenced by the filing of a complaint to which shall be attached, as an exhibit, a true copy of the allegedly harmful material. The complaint shall:

  1. Be directed against such material by name, description, volume, and issue, as appropriate;
  2. Allege that such material is harmful to minors;
  3. Designate as respondents, and list the names and all known addresses of any person in this State preparing, selling, offering, commercially distributing or disseminating in any manner such material to minors, or possessing such material with the apparent intent to offer to sell or commercially distribute or disseminate in any manner such material to minors;
  4. Seek an adjudication that such material is harmful to minors; and
  5. Seek a permanent injunction against any respondent prohibiting him from selling, commercially distributing, or disseminating in any manner such material to minors or from permitting minors to inspect such material.

History. 1969, c. 1215, s. 1.

§ 19-15. Examination by the court; probable cause; service of summons.

  1. Upon the filing of a complaint pursuant to this Article, the district attorney shall present the same, together with attached exhibits, as soon as practicable to the court for its examination and reading.
  2. If, after such examination and reading, the court finds no probable cause to believe such material to be harmful to minors, the court shall cause an endorsement to that effect to be placed and dated upon the complaint and shall thereupon dismiss the action.
  3. If, after such examination and reading, the court finds probable cause to believe such material to be harmful to minors, the court shall enter an order to that effect whereupon it shall be the responsibility of the district attorney promptly to cause the clerk of the superior court to issue summonses together with copies of said order and said complaint as are needed for the service of the same upon respondents. Service of such summons, order and complaint shall be made upon each respondent thereto in any manner provided by law for the service of civil process.

History. 1969, c. 1215, s. 1; 1971, c. 528, s. 8; 1973, c. 47, s. 2.

§ 19-16. Appearance and answer; default judgment.

  1. On or before the return date specified in the summons issued pursuant to this Article, or within 15 days after the service of such summons, or within 15 days after receiving actual notice of the issuance of such summons, the author, publisher or any person interested in sending or causing to be sent, bringing or causing to be brought, into this State for sale or distribution or disseminating in any manner, or any person in this State preparing, selling, offering, exhibiting or commercially distributing, or disseminating in any manner or possessing with intent to sell, offer or commercially distribute or exhibit or disseminate in any manner the material attached as an exhibit to the endorsed complaint, may appear and may intervene as a respondent and file an answer.
  2. If, after service of summons has been effected upon all respondents, no person appears and files an answer on or before the return date specified in the summons, the court may forthwith adjudge whether the material so exhibited to the endorsed complaint is harmful to minors and enter an appropriate final judgment.

History. 1969, c. 1215, s. 1.

§ 19-17. Trial.

  1. Upon the expiration of the time for filing answers by all respondents, but not later than the return date specified in the summons, the court shall, upon its own motion, or upon the application of any party who has appeared and filed an answer, set a date for the trial of the issues joined.
  2. Any respondent named in the complaint, or any person who becomes a respondent by virtue of intervention pursuant to this Article, shall be entitled to a trial of the issues within one day after joinder of issue. A decision shall be rendered by the court or jury, as the case may be, within two days of the conclusion of the trial.
  3. Every person appearing and answering as a respondent shall be entitled, upon request, to a trial of any issue by a jury. If a jury is not requested by any such respondent, the issues shall be tried by the court without a jury.

History. 1969, c. 1215, s. 1.

§ 19-18. Judgment; limitation to district.

  1. In the event that the court or jury, as the case may be, fails to find the material attached as an exhibit to the complaint to be harmful to minors, the court shall enter judgment accordingly and shall dismiss the complaint.
  2. In the event that the court or jury, as the case may be, finds the material attached as an exhibit to the complaint to be harmful to minors, the court shall enter judgment to such effect and may, in such judgment or in subsequent orders of enforcement thereof, enter a permanent injunction against any respondent prohibiting him from selling, commercially distributing, or giving away such material to minors or from permitting minors to inspect such material.
  3. No interlocutory order, judgment, or subsequent order of enforcement thereof, entered pursuant to the provisions of this Article, shall be of any force and effect outside the district court district in which entered; and no such order or judgment shall be res judicata in any proceeding in any other district court district.

History. 1969, c. 1215, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 74.

§ 19-19. Injunctions.

  1. If the court finds probable cause to believe the exhibited material to be harmful to minors, and so enters an order, the court may, upon the motion of the district attorney, issue a temporary restraining order against any respondent prohibiting him from offering, selling, commercially distributing or disseminating in any manner such material to minors or from permitting minors to inspect such material. No temporary restraining order shall be granted without notice to the respondents unless it clearly appears from specific facts shown by affidavit or by the verified complaint that one or more of the respondents are engaged in the sale, distribution or dissemination of harmful material to minors and that immediate and irreparable injury to the morals and general welfare of minors in this State will result before notice can be served and a hearing had thereon.
  2. Every temporary restraining order shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its own terms within such time after entry, not to exceed three days, as the court fixes unless within the time so fixed the respondent against whom the order is directed consents that it may be extended for a longer period.
  3. In the event that a temporary restraining order is granted without notice, a motion for a preliminary injunction shall be set down for hearing within two days after the granting of such order and shall take precedence over all matters except older matters of the same character; and when the motion comes on for hearing, the district attorney shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the restraining order.
  4. No preliminary injunction shall be issued without at least two days’ notice to the respondents.

History. 1969, c. 1215, s. 1; 1971, c. 528, s. 8; 1973, c. 47, s. 2.

CASE NOTES

A public nuisance under Chapter 19 can be enjoined regardless of the proximity of the nuisance to other structures. State ex rel. Onslow County v. Mercer, 128 N.C. App. 371, 496 S.E.2d 585, 1998 N.C. App. LEXIS 28 (1998).

§ 19-20. Contempt; defenses; extradition.

  1. Any respondent, or any officer, agent, servant, employee or attorney of such respondent, or any person in active concert or participation by contract or arrangement with such respondent, who receives actual notice by personal service or otherwise of any restraining order or injunction entered pursuant to this Article, and who shall disobey any of the provisions thereof, shall be guilty of contempt of court and upon conviction after notice and hearing shall be sentenced as provided by law.
  2. No person shall be guilty of contempt pursuant to this section:
    1. For any sale, distribution or dissemination to a minor where such person had reasonable cause to believe that the minor involved was 18 years old or more, and such minor exhibited to such person a draft card, driver’s license, birth certificate or other official or apparently official document purporting to establish that such minor was 18 years old or more;
    2. For any sale, distribution or dissemination where a minor is accompanied by a parent or guardian, or accompanied by an adult and such person has no reason to suspect that the adult accompanying the minor is not the minor’s parent or guardian;
    3. Where such person is a bona fide school, museum or public library or is acting in his capacity as an employee of such organization or as a retail outlet affiliated with and serving the educational purposes of such organization.
  3. In the event that any person found guilty of contempt pursuant to this section cannot be found within this State, the executive authority of this State shall, unless such person shall have appealed from the judgment of contempt and such appeal has not been finally determined, demand his extradition from the executive authority of the state in which such person may be found, pursuant to the law of this State.

History. 1969, c. 1215, s. 1.

§ 19-21. [Repealed]

Repealed by Session Laws 1971, c. 528, s. 9.