               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-782

                                 Filed: 16 February 2016

Wake County, No. 14 CVS 8137

KENNETH C. ADAMS, Plaintiff,

              v.

THE CITY OF RALEIGH, Defendant.


        Appeal by plaintiff from Order entered 30 March 2015 by Judge James E.

Hardin, Jr. in Wake County Superior Court.         Heard in the Court of Appeals 2

December 2015.


        MEYNARDIE & NANNEY, PLLC, by Joseph H. Nanney, for plaintiff-
        appellant.

        City Attorney Thomas A. McCormick, by Deputy City Attorney Hunt K. Choi,
        for defendant-appellee.


        ELMORE, Judge.


        Kenneth Adams (plaintiff) was arrested for violating the City of Raleigh’s

Amplified Entertainment Permit (AEP) Ordinance. After the charge was dropped,

plaintiff sued the City of Raleigh (defendant). Plaintiff appeals from the trial court’s

order   granting   defendant’s    motion   for   summary    judgment.    After   careful

consideration, we affirm.

                                    I. Background

        In August 2011, plaintiff and his fiancée, LaToya Turner, rented commercial
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space on Capital Boulevard in Raleigh “for the express purpose of opening a teen club

to provide at-risk youth a non-violent and drug-free place to socialize.” Plaintiff and

Turner formed a limited liability company named, “Juice Bar Teen-Lounge” (Juice

Bar). On 15 August 2011, plaintiff obtained a City of Raleigh business license for

Juice Bar. The following day, Turner submitted an application to defendant for an

AEP. On the application, Turner listed herself as a partner, plaintiff as the owner,

the type of business as “event center,” and the business start date as 15 August 2011.

The application instruction sheet lists telephone numbers for Building Inspections

and Fire Prevention, and states, “The applicant for an Amplified Entertainment

Permit is responsible for scheduling the required inspections.” It further states,

“Please allow at least 90 days from your application date until you plan to begin

providing Amplified Entertainment.”         Turner paid the $250 non-refundable

application fee but did not pay the additional $250 permit fee.

      Also on 16 August 2011, Turner contacted David Hickman, who at that time

was the Code Enforcement Specialist, to conduct a courtesy inspection of Juice Bar.

In Hickman’s affidavit, he stated that the City Inspections Department offered

courtesy inspections “as a public service” that were “not intended to be

comprehensive, but were intended to identify obvious and serious issues.” Hickman

stated that after the courtesy inspection, he discussed with Turner the limited

occupant load and the required music shut-off switch, and he recommended that



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plaintiff and Turner proceed with applying for their AEP in order to initiate the

formal inspection process.        Hickman clarified that a business may open “upon

purchase of a business license, and mere purchase of a business license does not in

itself trigger any inspection requirements. However, if a business wishes to provide

amplified entertainment, it must first obtain an AEP.” Hickman stated that neither

plaintiff nor Turner requested an AEP inspection. Plaintiff answered as follows in

an interrogatory: “On or about August 15, 2011, J.W. Pinder, the deputy fire marshal,

told me that fire extinguishers needed to be placed on the walls in a visible location,

that the ceiling tiles needed to be replace[d], that he needed certain prior inspections,

and that he would be happy to come back out for a reinspection.”

       Days later, on 19 August 2011, plaintiff and Turner held a grand opening for

Juice Bar. City of Raleigh Police Sergeant Michael Peterson obtained a social media

advertisement from the Raleigh Police Department Intelligence Center indicating

that approximately 700 teenagers planned to attend.1 In order to learn more about

Juice Bar, Sergeant Peterson contacted Joette Holman, City of Raleigh License

Review Technician, and David Hickman in the City’s Inspections Department.

Holman informed Sergeant Peterson that defendant did not issue Juice Bar an AEP

but that an application had been submitted. Hickman told Sergeant Peterson that

the requisite inspections for the AEP had not been conducted.


1The advertisement lists 748 people as “attending,” 694 people as “maybe attending,” 23,231 people
as “awaiting reply,” and 1,526 people as “not attending.”

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      Holman informed her supervisor, Sergeant Austin, about her conversation

with Sergeant Peterson. Sergeant Austin then added Juice Bar to Netforces’ list of

nightclubs to inspect on 19 August 2011. Netforces, a multi-agency task force, is

comprised of members of the City of Raleigh’s Inspections Department, Police

Department, and Fire Department, as well as representatives of Wake County and

the State of North Carolina. “Netforces conducts inspections of nightclubs in the City

of Raleigh and attempts to identify structural deficiencies, fire code violations, license

violations, and health code violations.”

      Sergeant Peterson and Officer M.T. McKee drove separately to Juice Bar to

observe the grand opening. When Sergeant Peterson arrived, he saw Officer G.T.

Porter enter Juice Bar. Officer Porter was off-duty and providing security services at

an adjacent grocery store. When Sergeant Peterson saw Officer Porter leave Juice

Bar, he called Officer Porter to ask the purpose of his visit. Officer Porter stated that

he approached Juice Bar out of curiosity, that he met the owner and informed him

about Netforces, and that he advised the owner to make sure he obtained all requisite

permits to operate his business.

      Shortly thereafter, the Netforces team arrived at Juice Bar and observed

violations of the fire code and health code. Plaintiff was identified as the owner and

was issued a citation for selling food in violation of N.C. Gen. Stat. § 130A-248(b). A

member of the Netforces team asked plaintiff to provide a copy of his business licenses



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and permits, and when plaintiff could not produce an AEP, Sergeant Peterson

directed Officer McKee to arrest him. In Sergeant Peterson’s affidavit, he stated,

             15. Based on my observations at the Juice Bar Teen Lounge
             on August 19, 2011, my earlier conversations with Ms.
             Holman and Mr. Hickman, and information I gathered
             during the Netforces inspection from members of the
             Netforces inspection team, I concluded that there was
             probable cause to believe that Plaintiff had violated the
             AEP Ordinance by providing amplified entertainment
             without first obtaining an AEP.

             16. Because I knew that the Plaintiff had been provided
             information about the AEP ordinance and its requirements
             during the application process, and that Plaintiff had been
             specifically warned by Officer Porter to be certain that he
             had obtained all necessary permits, I determined that
             Plaintiff’s blatant violation of the AEP Ordinance
             warranted his arrest.

      Plaintiff was charged with operating a business without first obtaining licenses

and permits required by the Raleigh City Code.          The magistrate’s order states,

“Subject failed to have a priviledge [sic] business permit and an amplified

entertainment permit.” The parties concede that plaintiff did not possess an AEP on

19 August 2011. On 16 August 2012, plaintiff filed a complaint in federal court

alleging claims against defendant and Officer McKee in his individual capacity. On

30 September 2013, the parties filed a stipulation that all claims against Officer

McKee were dismissed without prejudice.         On 20 May 2014, the federal court

dismissed plaintiff’s remaining claims without prejudice. Because the claim for which




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the court had original jurisdiction was dismissed by stipulation, the court declined to

exercise supplemental jurisdiction over the remaining state-law claims.

      On 19 June 2014, plaintiff filed a complaint in Wake County Superior Court

alleging the following claims against defendant: false imprisonment/false arrest;

malicious prosecution; and violations of Article I, Sections 1, 19−21, and 35−36 of the

North Carolina Constitution. Plaintiff filed an amended complaint on 1 October

2014. On 17 November 2014, defendant filed an answer to plaintiff’s complaint, and

on 2 February 2015, defendant filed a motion for summary judgment. Defendant

argued there was no genuine issue of material fact and it was entitled to judgment as

a matter of law because (1) plaintiff’s arrest was supported by probable cause; (2)

immunity barred plaintiff’s claims; (3) the existence of common law remedies barred

plaintiff’s North Carolina constitutional claims; and (4) no statutory basis supported

plaintiff’s claim for punitive damages.

      On 30 March 2015, the superior court granted defendant’s motion for summary

judgment and dismissed with prejudice all of plaintiff’s claims. The court did not

specify in the order the basis for its ruling. Plaintiff appeals.

                                      II. Analysis

      “On appeal, this Court reviews an order granting summary judgment de novo.”

Manecke v. Kurtz, 222 N.C. App. 472, 475, 731 S.E.2d 217, 220 (2012) (citations

omitted). “Under a de novo review, the court considers the matter anew and freely



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substitutes its own judgment for that of the lower tribunal.” Smith v. Cnty. of

Durham, 214 N.C. App. 423, 430, 714 S.E.2d 849, 854 (2011) (citation and quotations

omitted).

      A motion for summary judgment should be granted “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule

56(c) (2013). “In deciding a motion for summary judgment, a trial court must consider

the evidence in the light most favorable to the non-moving party.” Azar v.

Presbyterian Hosp., 191 N.C. App. 367, 370, 663 S.E.2d 450, 452 (2008) (citing

Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003)). “The moving party

bears the burden of showing that no triable issue of fact exists.” Id. (citing Pembee

Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985)).

“Once the moving party has met its burden, the non-moving party must forecast

evidence that demonstrates the existence of a prima facie case.” Id. (citing

Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).

“If the granting of summary judgment can be sustained on any grounds, it should be

affirmed on appeal.” Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).

      Plaintiff argues that because his business falls within an exemption provided

in the AEP ordinance, defendant could not have had probable cause to arrest him for



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violating the ordinance. Plaintiff also argues that his constitutional claims are not

barred because he does not have an adequate remedy under state law as defendant

claims it is shielded by governmental immunity. Lastly, plaintiff states that

governmental immunity does not apply because defendant purchased insurance that

applies to plaintiff’s claims.

       Defendant contends that the trial court properly granted summary judgment

in its favor based on two theories. First, defendant had probable cause to arrest

plaintiff, which defeats plaintiff’s claims for false arrest and malicious prosecution.

Second, even if there were doubt regarding probable cause, defendant has

governmental immunity. Defendant also argues that state law remedies bar

plaintiff’s direct claims under the North Carolina Constitution.

A. Probable Cause

       “[U]nder state law, a cause of action in tort will lie for false imprisonment,

based upon the ‘illegal restraint of one’s person against his will.’ A false arrest, i.e.,

one without proper legal authority, is one means of committing a false

imprisonment.” Williams v. City of Jacksonville Police Dep’t, 165 N.C. App. 587, 596,

599 S.E.2d 422, 430 (2004) (quoting Myrick v. Cooley, 91 N.C. App. 209, 212, 371

S.E.2d 492, 494 (1988)). “Probable cause is an absolute bar to a claim for false arrest.”

Id. (citing Burton v. City of Durham, 118 N.C. App. 676, 682, 457 S.E.2d 329, 333

(1995)).



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      A plaintiff must establish four elements to prove a claim for malicious

prosecution: “(1) the defendant initiated the earlier proceeding; (2) malice on the part

of the defendant in doing so; (3) lack of probable cause for the initiation of the earlier

proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.”

Nguyen v. Burgerbusters, Inc., 182 N.C. App. 447, 450, 642 S.E.2d 502, 505 (2007)

(citations and quotations omitted). “[T]he presence of probable cause necessarily

defeats plaintiff’s claim.” Martin v. Parker, 150 N.C. App. 179, 182, 563 S.E.2d 216,

218 (2002). “Whether probable cause exists is a mixed question of law and fact, but

where the facts are admitted or established, the existence of probable cause is a

question of law for the court.” Best v. Duke Univ., 337 N.C. 742, 750, 448 S.E.2d 506,

510 (1994) (citing Cook v. Lanier, 267 N.C. 166, 171, 147 S.E.2d 910, 914 (1966)).

      Plaintiff argues that he was not required to obtain an AEP, that he was exempt

from the ordinance because he was not going to provide amplified entertainment on

a regular basis, and that penal ordinances and their exemptions are strictly

construed. He further contends, “[T]he Ordinance cannot apply to [him] because, as

of his arrest on August 19, 2011, he had used amplified entertainment ‘four of [sic]

fewer times a year.’ ” “[B]ecause the Ordinance cannot apply to him, there could not

be probable cause to arrest [him] as a matter of law.”

      Defendant argues, “Although Appellant couches his argument in terms of

probable cause, he actually argues that he was not guilty of violating the AEP



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ordinance. However, conviction of an offense requires proof beyond a reasonable

doubt while probable cause is a much lower standard.” Defendant notes, “While the

AEP ordinance provides an exemption for any establishment providing amplified

entertainment four or fewer times a year, this exemption is intended to apply to

establishments which do not provide amplified entertainment during the ordinary

course of business.” Further, defendant claims, a business that provides amplified

entertainment in the ordinary course of business must obtain an AEP prior to

providing any amplified entertainment and “may not wait until after the fourth time

that amplified entertainment is provided.” Holman stated in her affidavit that this

interpretation of the AEP ordinance has been consistently applied by defendant.

      The AEP Ordinance provides, in pertinent part, the following:
            Section 12-2118. Definition.

            All establishments located in Raleigh and providing
            amplified music or other amplified entertainment shall
            possess an Amplified Entertainment Permit. Amplified
            Entertainment shall mean any type of music or other
            entertainment delivered through and by an electronic
            system. Televisions operating with no amplification other
            than their internal speakers and background music
            systems operated at a low amplification and not intended
            for entertainment shall not be deemed Amplified
            Entertainment.

            Religious worship facilities, schools and any establishment
            providing amplified entertainment four or fewer times a
            year are exempt from the provisions of this Division.

            Section 12-2124, Penalties.
            ....

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             (b) In addition to the above fines and suspension, a
             violation of this ordinance is also a misdemeanor and may
             also be enforced through injunctive or other equitable
             relief.

      “It is a well-established principle that an officer may make a warrantless arrest

for a misdemeanor committed in his or her presence.” State v. Brooks, 337 N.C. 132,

145, 446 S.E.2d 579, 588 (1994) (citing N.C. Gen. Stat. § 15A-401(b)(1)) (“Arrest by

Officer Without a Warrant.–(1) Offense in Presence of Officer.–An officer may arrest

without a warrant any person who the officer has probable cause to believe has

committed a criminal offense.”). “Probable cause ‘may be based upon information

given to the officer by another, the source of such information being reasonably

reliable.’ ” In re Gardner, 39 N.C. App. 567, 571, 251 S.E.2d 723, 725 (1979) (quoting

State v. Roberts, 276 N.C. 98, 107, 171 S.E.2d 440, 445 (1970)).

      “The existence of probable cause is a ‘commonsense, practical question’ that

should be answered using a ‘totality-of-the-circumstances approach.’ ” State v.

McKinney, 361 N.C. 53, 62, 637 S.E.2d 868, 874 (2006) (quoting Illinois v. Gates, 462

U.S. 213, 230–31, 76 L. Ed. 2d 527, 543 (1983)). “Probable cause is defined as those

facts and circumstances within an officer’s knowledge and of which he had reasonably

trustworthy information which are sufficient to warrant a prudent man in believing

that the suspect had committed or was committing an offense.” State v. Biber, 365

N.C. 162, 168–69, 712 S.E.2d 874, 879 (2011) (quoting State v. Williams, 314 N.C.

337, 343, 333 S.E.2d 708, 713 (1985)) (quotations omitted). Probable cause “ ‘does not


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demand any showing that such a belief be correct or more likely true than false. A

practical, nontechnical probability that incriminating evidence is involved is all that

is required.’ ” Id. at 169, 712 S.E.2d at 879 (quoting Texas v. Brown, 460 U.S. 730,

742, 75 L. Ed. 2d 502, 514 (1983)). “A probability of illegal activity, rather than a

prima facie showing of illegal activity or proof of guilt, is sufficient.” Id. (citing Gates,

462 U.S. at 235, 76 L. Ed. 2d at 546). Probable cause encompasses “ ‘factual and

practical considerations of everyday life on which reasonable and prudent men, not

legal technicians, act.’ ” Gates, 462 U.S. at 231, 76 L. Ed. 2d at 544 (quoting Brinegar

v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890 (1949)).

       Here, defendant had probable cause to believe that plaintiff was violating the

AEP ordinance on 19 August 2011. The AEP application that plaintiff filled out

includes a one-page instruction sheet that states in bold and underlined text, “A

business may not provide Amplified Entertainment until it has received an Amplified

Entertainment Permit.” Moreover, defendant had knowledge that plaintiff applied

for the AEP and that an AEP had not been issued to Juice Bar. When the Netforces

team and Raleigh Police arrived at Juice Bar, they observed a cashbox being used to

collect admission fees, televisions mounted to the walls playing music videos, and a

DJ playing amplified music through a sound system.

       Although the AEP ordinance does not specifically state how the exemption

applies, Sergeant Peterson was reasonable in concluding there was a “practical,



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nontechnical probability that incriminating evidence” was involved. See Biber, 365

N.C. at 169, 712 S.E.2d at 879. Because an officer’s probable cause determination is

not one of a legal technician, see Gates, 462 U.S. at 231, 76 L. Ed. 2d at 544, Sergeant

Peterson acted as a reasonable, prudent person in concluding that plaintiff was

providing amplified entertainment, plaintiff was required to have an AEP, plaintiff

could not present an AEP to Netforces, and, as a result, plaintiff was in violation of

the AEP ordinance—a misdemeanor.

      Probable cause is not eliminated based on an after-the-fact decision by the

State not to prosecute a particular claim or a conclusion by a court that a defendant

is not guilty. Law enforcement officers need not have prima facie proof of guilt of

illegal activity, only a probability. See Biber, 365 N.C. at 169, 712 S.E.2d at 879.

Although plaintiff emphasizes that Sergeant Peterson has arrested thousands of

people in his career but he has never arrested someone for failing to have an AEP,

this is not relevant to the probable cause inquiry. See State v. McClendon, 350 N.C.

630, 636, 517 S.E.2d 128, 132 (1999) (“[A]n objective standard, rather than a

subjective standard, must be applied to determine the reasonableness of police action

related to probable cause.”). Because a finding of probable cause necessarily defeats

plaintiff’s claims for false arrest and malicious prosecution, we need not address

governmental immunity as there is no liability.

B. Constitutional Claims



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      Plaintiff’s sole argument regarding his constitutional claims is that he does not

have an adequate remedy under state law due to defendant’s assertion of

governmental immunity, citing Craig v. New Hanover County Board of Education,

363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009), for the proposition that “if

‘governmental immunity stands as an absolute bar,’ the state law claim ‘does not

provide an adequate remedy.’ ”

      In Corum v. University of North Carolina, our Supreme Court stated, “[I]n the

absence of an adequate state remedy, one whose state constitutional rights have been

abridged has a direct claim against the State under our Constitution.” 330 N.C. 761,

782, 413 S.E.2d 276, 289 (1992). Here, unlike Craig, governmental immunity does

not stand as an absolute bar to plaintiff’s state law claims. “Because state law gives

plaintiff the opportunity to present his claims and provides ‘the possibility of relief

under the circumstances,’ plaintiff’s state constitutional claims must fail.” Wilkerson

v. Duke Univ., 229 N.C. App. 670, 676, 748 S.E.2d 154, 159 (2013).

                                  III. Conclusion

      The trial court did not err in granting defendant’s motion for summary

judgment based on the presence of probable cause.

      AFFIRMED.

      Judges CALABRIA and ZACHARY concur.




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