Appeals Court tosses sign violation suit after abatement

A notice citing a violation of a city code regulating the display of signs or advertisements that was abated cannot form the basis for an alleged subsequent continuing violation, the North Carolina Court of Appeals has ruled, reversing a ruling for the city.

On Sept. 17, 2014, a city code enforcement officer issued a Sign Violation Notice to MR Entertainment LLC, asserting that it violated the City of Asheville Code of Ordinances Section 7-13-3(3).

Section 7-13-3(3) states, “Sign or advertisements placed on vehicle or trailers that are parked or located for the primary purpose of displaying said sign are prohibited.”

Under the notice, MR Entertainment had either 24 hours to correct and abate the violation or 30 days to appeal.

On Sept. 25, one of the company officers engaged in an email exchange with the code enforcement officer requesting further information about the notice but also indicating that any violation had been corrected and abated the same day as the notice, as the vehicle had only been parked at the site that afternoon.

MR Entertainment did not appeal the notice, and the code enforcement staff did not perform a follow-up inspection as required by the notice to determine compliance.

Another citation was issued 2½ years later purportedly based on the original notice, alleging the continuous violation of Section 7-13-3(3) due to the company’s truck featuring the sign driving “throughout Asheville for the purpose of displaying” the sign.

The city then filed a complaint seeking injunctive relief to enjoin further use of the truck with the sign and the collection of civil penalties amounting to $57,500, from September 2014 through August 2018.

When the trial court granted the city’s motion for judgment on the pleadings, MR Entertainment appealed.

Writing for the unanimous panel, Judge John Tyson reversed.

Although the city argued that MR Entertainment violated section 7-13-3-(3) by continuously driving the truck identified in the notice within city limits for over two years after the cited violation, the violation itself cited the specific instance of their truck being parked behind their business, the court said.

“[T]he plain language of Section 7-13-3(3) states it does not apply to every vehicle in ‘operation throughout the city’ but only to those ‘that are parked or located for the primary purpose of displaying [advertisements],’” the court wrote. “North Carolina courts have long distinguished such language from the general acts of driving.”

In addition to the statutory language of the ordinance, the court found several other indications to support an interpretation of the 2014 notice as alleging a violation only in the singular instance and place.

Attached to the notice were three photos taken less than an hour apart of the vehicle, with the sign attached, and all three photos were of a singular instance of the vehicle being parked behind the business at a specified date and time; no other evidence or documentation of separate instances were included within the notice; and the notice explicitly required a site inspection to abate and cure.

“Based upon the ordinance’s plain language and the evidence contained within the notice, along with the legal principles of construction favoring free property rights, we conclude the violation specified within the notice to be the specific instance of [MR Entertainment’s] truck being parked behind their business at a specified time and date in 2014,” the court said.

Under that notice, MR Entertainment had 24 hours to cure the violation, which the company confirmed to the code officer via email, satisfying the notice requirement. The fact that MR Entertainment also asked for further information in the email was immaterial, the court added.

Once the code officer received notice of the abatement, the notice of violation required “the site [be] inspected and determined to be in compliance,” but the record did not show that a site inspection was made.

“The City’s own failure to re-inspect the site cannot defeat [MR Entertainment’s] timely notice of cure,” the court said.

Under these circumstances, the burden of proving the alleged continuing violation remained upon the city, the court explained, but it failed to do so.

“No evidence tends to show [MR Entertainment’s] vehicle remained in violation after the initial photographs contained in the specified notice were taken,” the court wrote. “The record shows [MR Entertainment] promptly removed the vehicle and notified the City of their abatement. The only remaining step was for the City to re-inspect the site and confirm the abatement. The Board found as fact the City had failed to re-inspect the site.”

The court reversed and remanded.

Edward L. Bleynat Jr., of Ferikes Bleynat & Cannon in Asheville, who represented MR Entertainment, said he was pleased with the court’s decision.

“The court was right on the exact thing that needed to happen, which was to recognize that someone who is already in compliance with a notice of violation that has been remediated should never have to go through the ordeal my client went through,” he said.

Eric P. Edgerton, senior assistant city attorney, did not respond to a request for comment.

The case is MR Entertainment, LLC v. The City of Asheville, No. COA23-1109.