1. Zoning--board of adjustment--review of decision
The trial court sits in the posture of an appellate court
when reviewing the decision of a board of adjustment. De novo
review is proper if a petitioner contends the board's decision
was based on an error of law, but the whole record test must be
applied if a petitioner contends the board's decision was not
supported by the evidence or was arbitrary or capricious. The
role of the appellate court is to review the trial court's order
for errors of law, determining whether the appropriate scope of
review was exercised and whether it was exercised properly.
2. Zoning--de novo standard of review--appropriate
The trial court appropriately applied the de novo standard
of review to the decision of a board of adjustment where
petitioner contended that the board erroneously concluded that
his video store was an “adult establishment” based on his refusal
to testify. This presents a question of law.
3. Constitutional Law--privilege against self-incrimination--
civil hearing--possibility of criminal prosecution
A video store owner could properly invoke his constitutional
privilege against self-incrimination in a hearing before the
board of adjustment where his testimony regarding the sale or
rental of certain items could subject him to criminal
prosecution.
4. Zoning--refusal to testify--inference of permit violation
It was proper for a board of adjustment to infer a violation
of a zoning permit from a video store owner's refusal to testify
and to conclude that the store qualified as an adult bookstore
where there was evidence giving rise to the probability that a
majority of his gross income was derived from the sale or rental
of adult publications. The owner's refusal to attempt to refute
this evidence is tantamount to a silent admission of the charge
against him. It is well established that a trier of fact may
infer guilt where a civil party has the opportunity to refute
damaging evidence but chooses not to do so.
LEWIS, Judge.
Petitioner Norris Davis appeals the trial court's 31 August
1999 order affirming the Town of Stallings Board of Adjustment's
determination that petitioner was operating an unauthorized "adult
establishment." We affirm the trial court's order.
Davis is the owner and operator of "The Executive Video Club,"
a video store located in Stallings, North Carolina. On 28 October
1997, Davis obtained a zoning permit for a "change of principal
use," allowing a video store with an adult video room. Handwritten
on the permit were the following limitations:
This permit is good for a video store with an
adult video room. The majority of all movies
must not be adult videos. All parking,
entrances, and exits must be paved. No adult
video signage allowed.
In February 1998, a Zoning Code Enforcement Officer for the Town of
Stallings visited Davis's video store, noting that the front area
of the store ("non-adult section") contained approximately 800 non-
adult videos on the shelves and 82-250 videos waiting to be
shelved. The back area of the store ("adult section") contained
approximately 882 adult videos and about 180 adult magazines;
another "novelty room" in this adult section contained five
different items.
On 24 April 1998, the Zoning Officer issued a violation noticeto Davis. The cited violation was as follows:
You were issued a zoning permit for a video
store with an adult video room on 28 October
1997. A condition on the permit stated that
the majority of the movies must not be of an
adult nature.
Per an investigation, I determined that you
were selling adult magazines along with
novelty items. This qualifies the use as an
adult use. Therefore, you must obtain a
zoning permit for an [“]adult establishment[”]
or remove the adult magazines and novelty
items. If a zoning permit for an adult
establishment is granted, then you must obtain
a business license for that use.
On 7 May 1998, Davis appealed from the notice of violation on
the basis that his video store did not qualify as an "adult
establishment" under the Zoning Ordinance for the Town of Stallings
("the Ordinance"). The Ordinance adopts the definition of "adult
establishment" from N.C. Gen. Stat. § 14-202.10(2), which defines
the term as "an adult bookstore, adult motion picture theatre,
adult mini motion picture theatre, adult live entertainment
business, or massage business as defined in this section." The
type of "adult establishment" relevant here is an "adult
bookstore." N.C. Gen. Stat. § 14-202.10(1) sets forth two
definitions for an "adult bookstore." Specifically, an "adult
bookstore" is one:
a. Which receives a majority of its gross
income during any calendar month from the
sale or rental of publications (including
books, magazines, other periodicals,
videotapes, compact discs, other
photographic, electronic, magnetic,
digital, or other imaging medium) which
are distinguished or characterized by
their emphasis on matter depicting,
describing, or relating to specified
sexual activities or specified anatomicalareas, as defined in this section; or
b. Having as a preponderance (either in te
rms
of weight and importance of the material
or in terms of greater volume of
materials) of its publications (including
books, magazines, other periodicals,
videotapes, compact discs, other
photographic, electronic, magnetic,
digital, or other imaging medium) which
are distinguished or characterized by
their emphasis on matter depicting,
describing, or relating to specific
sexual activities or specified anatomical
areas, as defined in this section.
In addition, N.C. Gen. Stat. § 14-202.10(9) defines "sexually
oriented devices" as, "without limitation[,] any artificial or
simulated specified anatomical area or other device or
paraphernalia that is designed principally for specified sexual
activities but shall not mean any contraceptive device."
In his appeal to the Board, Davis asserted two grounds for
reversal of the Zoning Officer's determination: (1) his selling of
"sexually oriented devices" should not factor into whether his
business was an "adult bookstore" since such devices are not
"publications, books, magazines, or other periodicals" under N.C.
Gen. Stat. § 14-202.10(1)(a) or (b), and (2) the "preponderance" of
"publications" sold at the video store were not distinguished or
characterized by their emphasis on matter related to specified
sexual activities or specified anatomical areas, as required under
G.S. 14-202.10(1)(b).
On 21 July 1998 and 18 August 1998, a hearing was held before
the Town of Stallings Board of Adjustment ("the Board"). At the
hearing, the Zoning Officer presented evidence of items contained
in Davis's video store on his first visit, along with evidence of
additional items discovered on a second visit on 22 July 1998. Thesecond time, the Zoning Officer encountered approximately 1884
videos and 300 comic books in the non-adult section, and
approximately 1665 videos, 300 magazines and books, 160 novelty
items, and 80 CDS in the adult section. At this hearing, both
Davis and his wife invoked their Fifth Amendment right against
self-incrimination and refused to testify.
The Board essentially concluded (1) that by displaying on the
premises of his video store items other than videos, Davis violated
the zoning permit issued to him on 28 October 1997, and (2) that
because Davis and his wife refused to testify, they prevented the
Board from conducting a full and complete hearing of the relevant
evidence needed to determine the applicable issues, giving rise to
an inference that his video store constituted an unauthorized
"adult establishment." In its mandate, the Board stated that the
zoning permit restricted Davis to the rental or sale of videos
only, the majority of which must not be adult pursuant to N.C. Gen.
Stat. § 14-202.10. The Board also mandated that Davis's video
store must not constitute an "adult establishment" as defined under
the Ordinance. The order allowed Davis thirty days in which to
comply.
Davis filed a petition for writ of certiorari with the Union
County Superior Court on 20 October 1998 and a writ of certiorari
was issued on 5 November 1998. On 31 August 1999, a hearing was
conducted by the trial court, which entered a judgment affirming
the Board's decision. Davis now appeals.
[1]When reviewing the decision of a board of adjustment, the
trial court sits in the posture of an appellate court and isresponsible for the following:
(1) Reviewing the record for errors of law,
(2) Insuring that procedures specified by law
in both statute and ordinance are followed,
(3) Insuring that appropriate due process
rights of a petitioner are protected including
the right to offer evidence, cross-examine
witnesses, and inspect documents,
(4) Insuring that decisions of town boards
are supported by competent, material and
substantial evidence in the whole record, and
(5) Insuring that decisions are not arbitrary
and capricious.
In re Appeal of Willis, 129 N.C. App. 499, 500, 500 S.E.2d 723, 725
(1998). If a petitioner contends the Board's decision was based on
an error of law, de novo review is proper. JWL Invs., Inc. v.
Guilford County Bd. of Adjust., 133 N.C. App. 426, 429, 515 S.E.2d
715, 717, disc. review denied, 351 N.C. 357, __ S.E.2d __ (1999).
However, if a petitioner contends the Board's decision was not
supported by the evidence or was arbitrary and capricious, then the
reviewing court must apply the "whole record" test. Id. The role
of appellate courts is to review the trial court's order for errors
of law. Willis, 129 N.C. App. at 502, 500 S.E.2d at 726. "The
process has been described as a two-fold task: (1) determining
whether the trial court exercised the appropriate scope of review
and, if appropriate, (2) deciding whether the court did so
properly." Id.
[2]Accordingly, we first decide whether the trial court
exercised the appropriate scope of review. In this appeal, Davisassigns as error the Board's conclusion that his video store was an
"adult establishment" based on his refusal to testify. This
presents a question of law warranting de novo review. Id. at 501,
500 S.E.2d at 725. We find the trial court applied the appropriate
standard of review; thus, we now determine whether the trial court
exercised de novo review properly. Id.
[3]The constitutional privilege against self-incrimination
assures all individuals that they will not be compelled to give
testimony which will tend to incriminate them or which will tend to
subject them to fines, penalties or forfeiture. Cantwell v.
Cantwell, 109 N.C. App. 395, 397, 427 S.E.2d 129, 130 (1993).
Here, Davis's testimony regarding the sale or rental of certain
items could subject him to criminal prosecution under N.C. Gen.
Stat. § 14-202.11(a) if such testimony leads to the conclusion that
his video store is an "adult establishment." Thus, Davis and his
wife could properly invoke the privilege at the hearing before the
Board.
[4]Having established that Davis and his wife properly
invoked the constitutional privilege against self-incrimination, we
turn to whether the Board could use their assertion of that
privilege to infer that Davis was running an unauthorized "adult
establishment." It is well established that a trier of fact may
infer guilt on a civil party who has the opportunity to refute
damaging evidence but chooses not to. McKillop v. Onslow County,
139 N.C. App. 53, 63, 532 S.E.2d 594, 601 (2000). The finder of
fact in a civil action may use a witness's invocation of his FifthAmendment privilege against self-incrimination to infer that his
truthful testimony would have been unfavorable to him. Fedoronko
v. American Defender Life Ins. Co., 69 N.C. App. 655, 657-58, 318
S.E.2d 244, 246 (1984). The foregoing principle was applied in
Gray v. Hoover, 94 N.C. App. 724, 726, 381 S.E.2d 472, 473, disc.
review denied, 325 N.C. 545, 385 S.E.2d 498 (1989), an action for
divorce that included a charge of adultery. The evidence of
adultery consisted of plaintiff's wife going into a condominium
with the defendant at night, turning out the lights inside, and not
exiting until daytime. Id. at 729, 381 S.E.2d at 474-75. At trial
the defendant refused to answer questions on the grounds that he
might incriminate himself. Id. The Court stated:
"Plaintiff's charge against defendant was
adultery; if the evidence of so serious a
charge was not true, the defendant had the
opportunity to refute it. Whether the charge
was true or not, the falsity of it was
peculiarly within defendant's knowledge. The
fact that [he] did not refute the damaging
charge made by plaintiff, it may be that this
was a silent admission of the charge made
against [him]."
Id. at 729, 381 S.E.2d at 475 (quoting Warner v. Torrence, 2 N.C.
App. 384, 163 S.E.2d 90 (1968)). The rationale underlying this
principle has been stated as follows:
"The privilege of the witness is to prevent
testimony which might be used against him in a
subsequent criminal suit, and not to keep out
probative evidence or any inferences to be
drawn from the claim of privilege which might
be relevant to the issues in the matter before
the court. So, while the claim of privilege
may not be used against defendant [or a
witness] in a subsequent criminal prosecution,
an inference that his testimony would havebeen unfavorable to him is available to his
opponent in a civil cause in which defendant
[or a witness] pleads the privilege."
Fedoronko, 69 N.C. App. at 657, 318 S.E.2d at 246 (quoting 98
C.J.S. Witnesses § 455, at 308 (1957) (footnotes omitted)).
We find the foregoing cases inferring guilt on a civil
defendant who refuses to refute damaging evidence dispositive.
Here, the evidence before the Board revealed a relatively small
disparity between the number of adult and non-adult items
qualifying as "publications" in Davis's video store -- 2045 adult
publications and 2184 non-adult publications. This evidence gives
rise to the probability that a majority of Davis's gross income was
derived from the sale or rental of these adult publications, and
thus, fulfills the first definition of "adult bookstore" under G.S.
14-202.10(1)(a). Given this evidence, Davis's refusal to attempt
to refute the Zoning Officer's evidence is tantamount to "a silent
admission of the charge made against him." Gray, 94 N.C. App. at
729, 381 S.E.2d at 475 (citation omitted). This silent admission
logically gives rise to an inference of guilt. In Re Estate of
Trogdon, 330 N.C. 143, 152, 409 S.E.2d 897, 902 (1991). It was
therefore proper for the Board to infer a violation from his
refusal to testify and thus to conclude that his video store
qualified as an "adult bookstore" under G.S. 14-202.10(1).
In light of the foregoing, we conclude the trial court
properly exercised its scope of review in upholding the
determination of the Board.
Affirmed. Judges WYNN and HUNTER concur.
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