The Town of Wrightsville Beach has gone to considerable and costly lengths to fight Red Dogs, taking measures it doesn’t appear to have used against any other establishment. And it’s not a new phenomenon — the town has been trying to kill the bar for three decades.
WRIGHTSVILLE BEACH — Despite the fact that it’s a beach town with a well-known bar scene, actually opening a bar in Wrightsville Beach is no easy task.
On one hand, it has to do with state law and the issuance of alcohol permits and the requirement for ‘private clubs.’ On the other, it has to do with restrictive measures the town has put into its zoning ordinances making the operation of a bar a multi-step process requiring rezonings and conditional use permits.
But as the town has found out in court, state law supersedes town zoning restrictions — but that hasn’t stopped Wrightsville Beach from continuing its fight with the private club known as Red Dogs.
In North Carolina, state law requires any traditional bar actually be a ‘private club.’ This means patrons of a bar are actually club members, and those who are not must be bonafide guests of a member. The requirement comes from a 1978 law that affects any liquor-serving establishment that makes more than 70% of its gross sales from alcohol.
“The statute, in essence, outlaws what we traditionally think of as ‘bars’ and requires establishments serving predominantly (or only) alcohol to be ‘private clubs.’ This means customers must fill out membership applications, including personal information and answers to at least two questions about their interests; the regulations are meant to provide justification for the private club, but have instead become a bureaucratic hassle for customers and bar owners alike,” Port City Daily previously reported.
The fight against Red Dogs is unusual, considering there are several other private clubs operating in the town despite the fact they are not technically in zoning compliance either. Port City Daily could find no evidence of the town spending comparable time or energy opposing another single business when compared to the decades-worth of litigation against Red Dogs.
A decades-old battle
The bar has recently been brought back to the spotlight after the town’s Zoning Board of Adjustment denied an appeal from new owners, Andrew and Anna Brothers. The two appealed the town’s decision to fine the business $50 a day for operating without a certificate of zoning compliance.
But the town’s animosity against Red Dogs is nothing new, in fact, the town has tried multiple times to stop the club from operating using zoning violations as its reasoning.
The State of North Carolina gives municipalities a wide range of liberties when it comes to creating its own zoning laws, but as the Town of Wrightsville Beach found out nearly 20 years ago, state law always supersedes local ordinances.
In order to understand the current dispute, it is necessary to go all the way back to the 1970s when the former owner of Red Dog’s Charlie Maultsby first opened the club.
“Since approximately 1974, and continuing until March 1991, a bar was operated on the ground floor of the premises known as ‘”Red Dogs.”‘ This bar was open to the general public. While not conforming with the zoning ordinances of the Town of Wrightsville Beach, the Town considered the bar to be a permitted non-conforming use until March 1991,” A court case from 2000 reads.
It took some time, but one of the first actions taken against Maultsby was criminal in nature.
In 1991 the Town of Wrightsville Beach filed a criminal summons against Maultsby for a, “… Violation of the provisions of the Wrightsville Beach zoning ordinance that prohibited the operation of a private club in the zoning district in which Red Dog’s is located,” according to court records.
The charges were heard in the spring of 1991 and the court found Maultsby not guilty.
[Editor’s note: It’s worth noting that, while state statute makes it a class 3 misdemeanor to violate local ordinances, it is uncommon to see municipalities pursue criminal action in zoning cases.]
In 1996, the building where Red Dogs is located was purchased by Eastern Skateboard Supply, Inc.
All was quiet for nearly 10 years and the town took no further enforcement action against Maultsby until 2000. That is when he began operating the upstairs portion of the building.
The 2000 lawsuit
In October of 2000, the Town of Wrightsville Beach filed a new complaint against Red Dogs in Superior Court.
The complaint alleged that the town issued a Certificate of Zoning Compliance for the property where Red Dogs is located, on the second floor of 5 Lumina Avenue. According to the town, that certificate was granted with the idea that the second floor would operate as a retail shop selling merchandise, not operate a bar.
But on July 26, 2001, the state ABC Commission issued a permit to one of the defendants in the case, to serve malt beverages on the second floor of the building.
The town’s complaint claimed the operation of private clubs is not permitted in the C-1 zoning district (the district the building is located in) and was therefore in violation of town zoning ordinances.
The town then asked the courts to issue an injunction and Order of Abatement requiring the defendants (Red Dogs) to cease operation of a private club within the town. It also asked the courts to allow it to recover civil penalties assessed against Red Dogs and to have Red Dogs pay for legal fees.
The case would be tied up in litigation for two years until a decision was made.
The 2002 ruling
In 2002, a Superior Court judge ruled against the Town of Wrightsville Beach’s requests citing a 1987 case, In Re: Application of Melkonian v. Board of Adjustment of the City of Havelock.
In short, the Melkonian case set the precedent for ABC permit issuance appeals in regard to alleged zoning violations. Essentially, it ruled that since the state has the sole permit to issue alcohol permits zoning regulations created to overrule the ABC’s power to control who serves alcohol their decision supersedes local ordinances.
“From the foregoing principles it is abundantly clear that if the General Assembly intended to delegate to the ABC Commission the exclusive authority to determine the suitability of applicants to obtain the appropriate permits and licenses to sell intoxicating beverages, then the use of any ordinance to achieve a result inconsistent with the General Assembly’s delegation of authority to the ABC Commission would be unlawful,” according to the Melkonian case opinion.
That is why, in 2002, the decision from Superior Court was handed down dismissing the case and rejecting the request for an injunction against the private club. It was a short decision from the courts for a drawn-out court case.
But the fight was far from over.
[Note: Check out Part II, which looks at why the town has singled out Red Dogs compared to other establishments as well as the town’s most recent attempt to shutter the operation.]
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