Appeals Court Upholds Country Club Exemption To North Carolina Smoking Ban

RALEIGH, N.C. - (Mealey's) The North Carolina Court of Appeals on March 20 upheld a law that exempts private country clubs from a statewide smoking ban, saying the law does not deny due process rights of nightclub owners because its purpose is to prevent the public from secondhand smoke (Benjamin Edwards v. Pitt County Health Director, No. 10 CVD 1231, N.C. App.).  

(Opinion. Document #04-120418-001Z.)

"When is a country club not a country club?" is a key question, the panel said, acknowledging that there is "no bright-line rule for distinguishing private clubs from non-private clubs."  Nonprofit status is integral to private status, the court said, because a for-profit club is driven to maximize profits by accepting a broader range of prospective member, while a nonprofit club is free to impose restrictions on membership, making it truly private.  That leaves the owners of four Greenville, N.C., nightclubs who sued in the Pitt County District Court in the same position as a for-profit country club, thereby blunting the owners' due process claim, the court said. 

"Because we conclude that only private, nonprofit country clubs are exempt under the private club exemption, to address Petitioners' constitutional claim we need not determine the constitutionality of exempting for-profit country clubs and not for-profit non-country club organizations," the court said.  "Rather, we need only determine the constitutionality of the smoking ban's exemption of private, nonprofit country clubs."  

 "The fact that the legislature's stated intent is to protect individuals in public places from the dangers of secondhand smoke, along with the fact that the language allowing smoking in country clubs is situated in the subsection defining 'private club,' is a clear indication that an interpretation of 'country club' that 'give[s] effect to the legislative intent' of the statutes would be one that only exempts private country clubs from the smoking ban," the court said.  "Conversely, an interpretation that allows smoking in public country clubs would, without question, 'defeat or impair the object of the statute.'  Thus, we conclude that the legislature's exemption of country clubs from the smoking ban applies only to private country clubs and does not exclude public country clubs." 

The ruling reversed Pitt County District Court Judge G. Galen Braddy's Nov. 17, 2010, decision in favor of the owners of four Greenville nightclubs. 

In early 2010, the court said, Director John H. Morrow of the Pitt County Health Department sent notices of violation to George Beaman, Benjamin Edwards and Lynn Owens, the owners of Club 519, 5th Street Distillery, Mac Billiards and Live, citing the establishments' violation of North Carolina General Statutes Section 130A-491, et seq., and advising the owners that they would be subject to a fine of $200 per day if the violations continued beyond a third notice.  The owners appealed the citations and administrative penalties to the Pitt County Board of Health, which upheld the penalties, the court said, whereupon the owners filed in Pitt County District Court.

The opinion is by Judge Linda Stephens, with Judge Donna S. Stroud concurring.  Judge Cheri Beasley concurred in a separate opinion. 

The county is represented by Jonathan Vann Bridgers of Owens, Nelson, Owens & Dupree in Greenville, N.C.  The nightclub owners are represented by Adam Stein of Ferguson, Stein, Chambers, Gresham & Sumter in Charlotte, N.C. 

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