Court revives suit against Kill Devil Hills’ ‘itinerant vendor’ rules

The North Carolina Court of Appeals will allow a lawsuit to move forward challenging Kill Devil Hills’ restrictions against “itinerant vendors.”

Ami Hill and her business Muse Originals worked with the Pacific Legal Foundation to file suit against the town in 2022.

Superior Court Judge Andrew Womble dismissed the case in May 2025. Now the Appeals Court is reversing that decision in an unpublished opinion released Wednesday. Unpublished opinions have limited value as precedents for future cases.

“In 2017, Hill rented a commercial space in Kitty Hawk, North Carolina, and opened an art gallery called Muse Originals OBX,” Judge April Wood explained. “The gallery featured the work of local artists and artisans.”

“In March 2020, the shutdowns due to the COVID-19 pandemic forced the gallery to close,” Wood continued. “In response, Hill launched an outdoor ‘pop-up’ market called a ‘Muse Market’ at which she would display and sell artwork out of her remodeled school bus (‘#Bus252’), and Outer Banks artists could pay a small fee to set up tables or tents nearby to sell their works as well. The first Muse Market occurred in Kitty Hawk in June 2020.”

“In the summer of 2020, Hill was invited by a local restaurant in Kill Devil Hills to set up the Muse Market on their private property,” the court opinion continued. “Hill and the owner advertised the market on social media. The Kill Devil Hills Zoning Administrator, Donna Elliott (‘Elliott’), saw the ad and contacted Hill. Elliott informed Hill that the event was not allowed in the summer months, she would not issue a permit for it, and Elliott would send the police if Hill proceeded with the event. Hill canceled the event.”

“During the fall and winter of 2020 and early spring of 2021, Hill applied for charitable special event permits multiple times, all of which were granted,” Wood wrote. “However, when Hill completed the same form for events in the summer of 2021 all permits were denied because charitable special events with for-profit vendors are allowed only in Kill Devil Hills between 30 September and 1 May.”

“Meredith Guns, planning director, informed Hill that she could ask the Board of Commissioners for a non-charitable special event permit,” the court opinion continued. “Hill completed the non-charitable special event application and submitted it for consideration by the Board of Commissioners. On 25 May 2022, Hill’s petition was heard by the Board of Commissioners. The Board voted to deny the permit.”

Hill filed suit the following month. She alleged a so-called Corum claim involving violation of her state constitutional rights, “stating that Ch. 111, § 111 of the Kill Devil Hills Code of Ordinances is unconstitutional under (1) Fruits of Their Own Labor, (2) Law of the Land, and (3) Equal Protection both on its face and as applied to Plaintiffs,” Wood wrote.

Hill sold the bus in November 2024 as the legal action continued, but “Muse Originals remains in business and continues to operate markets elsewhere.”

The Appeals Court ruled that Hill did not need to “exhaust administrative remedies” before filing her Corum claim. “Plaintiffs argue and Defendants concede that exhaustion of administrative remedies is not required when the constitutionality of an ordinance is challenged,” Wood wrote.

In the 2024 case Askew v. City of Kinston, “the Supreme Court clarified its holding stating, ‘[e]xhaustion of administrative remedies does not dictate jurisdiction over Corum claims. That authority flows from the Constitution itself. To ensure that North Carolinians “may seek to redress all constitutional violations,” Corum creates a unique path into court when existing channels fail to offer an adequate remedy,’” Wood explained.

“Therefore, the trial court must consider each discrete Corum claim individually to determine ‘whether the review and relief afforded by the administrative process is an effective stand-in for a direct constitutional suit’ and cannot just give a ‘blanket jurisdictional mandate’ based on failure to exhaust administrative remedies,” Wood added. “The trial court’s determination to dismiss for failure to exhaust administrative remedies is error.”

The Appeals Court also rejected the trial judge’s ruling that the sale of #Bus252 made the case moot.

“Plaintiffs argue and Defendants concede that Plaintiffs’ sale of #Bus252 does not automatically render the litigation moot when Plaintiffs’ business remains in operation and remains interested in conducting business within Kill Devil Hills,” Wood wrote.

“[T]he ordinance in question, Ch. 111, § 111 of the Kill Devil Hills Code of Ordinances, is still in existence,” she added. “Plaintiffs’ business Muse Originals is still in business as an itinerant vendor putting on ‘Muse Markets’ and Kill Devil Hills continues to restrict Plaintiffs’ operation of business during the ‘high season’ due to its ordinance which Plaintiffs allege is unconstitutional. As conceded, the controversy clearly still exists; therefore, the trial court also erred by dismissing it as moot.”

Appellate judges also questioned the trial judge’s ruling that a state law — NC Gen. Stat. § 160A-78 — barred Hill’s claims.

“[T]he trial court found the wording of the enabling statute bars a constitutional argument against a town ordinance. We disagree,” Wood wrote.

“The legislature clearly recognized a city ordinance must be consistent with our state constitution,” she explained. “If a city passes an ordinance which purports to infringe on a constitutional right, ‘the state judiciary that has the responsibility to protect the state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State.’”

“The judiciary carries out the obligation and responsibility to protect individuals’ rights under the state constitution by adjudicating constitutional claims,” Wood wrote. “Our Courts have considered the constitutionality of multiple ordinances under other enabling statutes and found them to be unconstitutional.”

“It is a fundamental duty of our state courts to hear constitutional cases concerning ordinances alleged to infringe upon individuals’ fundamental rights,” Wood added. “The trial court may not bar its doors based on ‘the wording of the enabling statute’; it must first hear the arguments before determining the merits of the claim. It was error for the trial court to dismiss the claim without adjudicating Plaintiffs’ constitutional claims.”

Judge John Tyson joined Wood’s opinion. Judge Julee Flood concurred “in result only.” That means she supported the case’s result without signing on to Wood’s legal analysis.

“Court revives suit against Kill Devil Hills’ ‘itinerant vendor’ rules” was originally published on www.carolinajournal.com.