1. Zoning--search for adult merchandise--administrative search
warrant required
An administrative search warrant was needed for zoning
officials to search a store for adult merchandise. The
enforcement of the zoning code is not frustrated by requiring a
warrant for administrative searches, video and book sales are not
pervasively regulated industries, and Durham's zoning ordinance
does not set forth specific and regularly enforced guidelines for
the search of video and book stores. Inspectors may do a
cursory inspection of a store's contents, as a customer might,
and obtain a warrant based on their observations; the behavior of
the zoning officials in this case clearly went beyond the bounds
of a normal customer of the store and constituted a search as
that term is understood under the Fourth Amendment.
2. Search and Seizure--administrative search warrant--
supporting affidavit
An administrative search warrant was valid where the
language in the affidavit was virtually identical to that
approved in South Blvd. Video & News v. Charlotte Zoning Bd. of
Adjust., 129 N.C. App. 282.
3. Zoning--issue not raised before board of adjustment--not
before superior court
Petitioner's argument that an administrative search warrant
was invalid because the magistrate signed only four of five pages
was not considered where petitioner did not bring up the issue in
its motion to suppress the evidence from the search before the
board of adjustment. The superior court sat as an appellate
court and had no authority to address issues not argued before
the board of adjustment.
4. Zoning--report from planning staff--not timely received--no
prejudice
There was no prejudicial error in a zoning decision where a
report from the planning staff was not mailed to petitioner the
requisite ten days before the hearing. Everything in the report
was a matter of public record, nothing in it could have taken
petitioner by surprise, and petitioner showed no prejudice from
its late receipt of the record.
5. Zoning--adult establishment--sufficiency of evidence
There was sufficient evidence in a zoning action to conclude
that petitioner was operating an adult bookstore and adult mini
motion picture theater where petitioner objected to determining
whether a publication or motion picture was “adult” by looking
only at the pictures and advertisements on the covers. The board
of adjustment in this case was merely enforcing zoning
requirements and made no determination that petitioner violated
criminal obscenity laws; in the context of zoning enforcement, it
is reasonable to rely upon the pictures and titles on the covers
because the publishers make a distinct effort to impart to
viewers the content of the material and because reading and
viewing all of the books, magazines, and videos in an adult
establishment would render the zoning laws unenforceable.
6. Zoning--adult establishment ordinance--non-adult materials
The age and price of the stock were factors which a zoning
board of adjustment could properly consider in determining the
relative importance of the adult and non-adult materials when
deciding whether petitioner was operating an adult business in
violation of zoning restrictions.
7. Zoning--adult establishment ordinance--sexual devices
A zoning board of adjustment did not err when considering
whether petitioner was operating an adult business in violation
of zoning ordinances by making an incidental finding regarding
the presence of sexually oriented devices on the property even
though sexually oriented devices are not included as a
consideration in N.C.G.S. § 14-202.10.
8. Zoning--adult establishment ordinance--amendment of statute
The superior court did not err in a zoning action by
refusing to clarify which version of N.C.G.S. § 14-202.10 was
used by the board of adjustment in deciding whether petitioner
was operating an adult business because the amendment merely
codified the Court of Appeals' explanations of the word
“preponderance” and was not a substantive change in the law.
9. Constitutional Law--adult establishment zoning ordinance--
not vague or overbroad
An adult establishment zoning ordinance was not
unconstitutionally vague or overbroad, both facially and as
applied.
HUDSON, Judge.
Petitioner appeals from a judgment and order of the Durham
County Superior Court affirming the Durham Board of Adjustment's
decision that petitioner was operating an adult establishment in
violation of the Durham zoning code. We affirm the determination
of the Superior Court.
On 15 October 1998, a Durham zoning enforcement officer issued
a Notice of Violation charging petitioner with operating an adult
establishment in an improper zoning district in violation of
Chapter 24, Section 6, of the Durham City/County Zoning Ordinance.
Petitioner's store, Movie Town, is located in a "General
Commercial" district in which adult establishments are not allowed.
On 16 October 1998, petitioner appealed the Notice to the
Durham City/County Board of Adjustment (the Board) pursuant to
N.C.G.S. § 160A-388(b). A quasi-judicial hearing was held on the
matter on 9 December 1998. The Board voted to uphold the Notice of
Violation, concluding that petitioner was operating both an adult
bookstore and an adult mini-motion-picture theater. Petitioner
then filed a petition for writ of certiorari with the Durham County
Superior Court under N.C.G.S. § 160A-388(e), which court affirmed
the Board's decision in a judgment and order filed 1 September
1999. Petitioner thereafter moved the court to amend its findings
of fact or make additional findings, which motion was denied. Petitioner gave timely notice of appeal to this Court.
Petitioner first argues that the Superior Court erred in its
ruling that the administrative search warrant used to collect all
of the City's evidence in this case was lawfully issued, or, in the
alternative, was not necessary. On 15 and 16 October 1998, Durham
zoning officials Pratt Simmons and Landy Void visited Movie Town,
identified themselves as zoning officials, and viewed the areas of
the store and the merchandise. Based on what they observed during
these brief visits, they sought and received an administrative
search warrant on 19 November. On that date, Simmons, Void, and
zoning enforcement officer Dennis Doty conducted a more thorough
inspection, documenting with greater detail the kinds of
merchandise sold and taking photographs and a video of the store.
At the hearing before the Board, petitioner moved to suppress
the evidence gathered on 19 November based upon the invalidity of
the search warrant. The Board denied petitioner's motion. The
Superior Court upheld the Board's decision, finding that the
warrant was valid, and that even if it was not, a warrant was not
constitutionally required "because all materials viewed by Mr.
Simmons and associates were openly displayed, and commercially
available and viewable by the public." See N.C.G.S. § 15-
27.2(f)(evidence obtained by invalid warrant may be used when
warrant is not constitutionally required under the circumstances of
the case).
[1]We first address whether an administrative warrant was
needed in this situation. The Fourth Amendment's prohibition
against unreasonable searches does apply to administrativeinspections of private commercial property. See v. City of
Seattle, 387 U.S. 541, 18 L. Ed. 2d 943 (1967). Although the
expectation of privacy the owner of commercial property enjoys is
significantly less than that granted to a private home owner, the
circumstances in which warrantless searches of commercial property
will be allowed are limited. Donovan v. Dewey, 452 U.S. 594, 69
L. Ed. 2d 262 (1981). Considerations in determining the propriety
of legislative schemes allowing warrantless searches include
whether the industry involved is a "closely regulated" one such
that business owners should be aware of the need for regular
inspections (such as in gun and liquor sales), whether the law
specifically sets out the frequency and scope of the inspections
owners may expect, and whether a warrant requirement would
significantly frustrate enforcement of the law. Id.
The above criteria are not present in the case before us.
Video and book sales are not pervasively regulated industries, and
Durham's zoning ordinance does not set forth specific and regularly
enforced guidelines for the search of video and book stores.
Furthermore, we do not believe enforcement of the zoning code is
frustrated by the requirement of obtaining a warrant to conduct
administrative searches. Inspectors may do a cursory inspection of
a store's contents as may a customer and, based on their
observations, obtain a warrant authorizing a more detailed search.
"A search occurs when 'an expectation of privacy that society
is prepared to consider reasonable is infringed.'" Maryland v.
Macon, 472 U.S. 463, 469, 86 L. Ed. 2d 370, 376 (1985) (citationomitted). In Maryland, a plain-clothes detective browsed for
several minutes through an adult bookstore and then purchased two
magazines from the clerk. The clerk was subsequently arrested for
the distribution of obscene materials. The United States Supreme
Court determined that "[t]he officer's action in entering the
bookstore and examining the wares that were intentionally exposed
to all who frequent the place of business did not infringe a
legitimate expectation of privacy and hence did not constitute a
search within the meaning of the Fourth Amendment." Id. at 469, 86
L. Ed. 2d at 377.
In Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 60 L. Ed.
2d 920, 930 (1979), however, the Supreme Court explained that
"there is no basis for the notion that because a retail store
invites the public to enter, it consents to wholesale searches and
seizures that do not conform to Fourth Amendment guarantees." In
Lo-Ji Sales, the Town Justice and ten other officials searched a
bookstore for obscene materials for six hours. Two or three marked
police cars were parked out front, and no customers remained in the
store after becoming aware of the presence of the police. The
store's film booths were adjusted so that the films could be viewed
without inserting any coins. Police officers removed magazines
from their plastic casings so that they could be read. The Court
commented on these actions: "The Town Justice viewed the films,
not as a customer, but without the payment a member of the public
would be required to make. Similarly, in examining the books and
in the manner of viewing the containers in which the films werepackaged for sale, he was not seeing them as a customer would
ordinarily see them." Id. While Maryland and Lo-Ji Sales are
criminal cases, they are instructive regarding the expectation of
privacy properly enjoyed by the owner of a video and book store.
In the present case, zoning enforcement officers Dennis Doty,
Pratt Simmons, and Landy Void visited petitioner's store on 19
November, took pictures, and recorded a 40 minute video detailing
what they saw, even though a sign posted in the store prohibited
the use of any visual or sound recording equipment by customers.
They took two video tapes off the shelf and played portions of them
on a video player they had brought. They made measurements of the
square footage of the store using a measurement wheel. Although
their presence on the property was less intrusive than that of the
officials in Lo-Ji Sales, we believe their behavior clearly went
beyond the bounds of that of a normal customer of the store. They
were conducting a search of the property as that term is understood
under the Fourth Amendment and needed a warrant to conduct it.
[2]We therefore turn to the question of whether the
administrative warrant authorizing the search in this case was
valid. To make the warrant process meaningful, the underlying
facts sufficient to establish administrative probable cause to
search must be set out in the affidavit supporting an
administrative warrant. Gooden v. Brooks, Comr. of Labor, 39 N.C.
App. 519, 525, 251 S.E.2d 698, 703, appeal dismissed, 298 N.C. 806,
261 S.E.2d 919 (1979); see also N.C.G.S. § 15-27.2(c). In the
present case, zoning enforcement officer Pratt Simmons set forth inan affidavit that he had visited petitioner's store on 15 and 16
October 1998:
During both inspections, I observed that the
preponderance of the publications, including videotapes,
offered for sale or rent in the business appeared to be
distinguished or characterized by their emphasis on
matter depicting, describing or relating to sexual
activities and human genitals, pubic regions, buttocks
and female breasts. In addition, merchandise such as
artificial genitals and other sexual paraphernalia was
displayed. To the rear of the business establishment
were approximately 22 booths and it appeared that the
preponderance of videos viewed in such booths were
distinguished or characterized by their emphasis on
matter depicting, describing or relating to sexual
activities, human genitals, pubic regions, buttocks and
female breasts.
Petitioner contends Simmons' statements were merely "conclusory"
and inadequate to support a warrant. However, the language in
Simmons' affidavit is virtually identical to that approved as
sufficient to establish probable cause to conduct an administrative
search by this Court in South Blvd. Video & News v. Charlotte
Zoning Bd. of Adjust., 129 N.C. App. 282, 291-92, 498 S.E.2d 623,
629, appeal dismissed and disc. review denied, 348 N.C. 501, 510
S.E.2d 656 (1998). Petitioner's argument must therefore fail.
[3]Petitioner also stresses that the warrant was invalid
because the magistrate who issued it signed only four out of five
pages constituting the warrant. However, petitioner did not bring
up the issue of the lack of a proper signature on the warrant in
its motion to suppress the evidence from the search before the
Board. The Superior Court sat as an appellate court in this case,
and thus had no authority to address issues not previously argued
before the Board. See Sherrill v. Town of Wrightsville Beach, 76N.C. App. 646, 649, 334 S.E.2d 103, 105 (1985). For the same
reason, we decline to address petitioner's argument on this point
as well. See N.C. R. App. P. 10(b)(1)
[4]Petitioner next contends the Superior Court erred in
determining the Board did not violate its own rules which required
that the planning department's staff report on petitioner's case be
mailed to petitioner 10 days prior to hearing. Petitioner did not
receive a complete copy of the staff report until after business
hours on 7 December 1998, 2 days before the hearing. Based on this
fact, counsel requested that the hearing be continued until 18
December. This request, which was made at the hearing after
petitioner's motion to suppress had been argued at length, was
denied.
Having thoroughly reviewed the record on this issue, we
determine petitioner was in no way prejudiced in its preparation
for the hearing by its late receipt of the staff report. The staff
report contained copies of the original Notice of Violation,
petitioner's appeal, the petitioner's building permit and floor
plan submitted with that permit, petitioner's sign permit, the
definition of adult establishment from Durham's ordinance and the
North Carolina statutes, and a summary of the Court of Appeals'
holding in South Blvd. Video & News v. Charlotte Zoning Bd. of
Adjust., cited above. Everything contained in the staff report was
already a matter of public record, and nothing in it could have
taken petitioner by surprise.
Counsel for petitioner did argue to the Board that there werecertain inaccurate notations on the map of the store i
ncluded in
the staff report, and that if he had received the map earlier, he
could have subpoenaed someone to refute them. However, counsel was
cryptic regarding which information on the map was misleading, and
we see no reason why the manager of Movie Town, who did testify at
the hearing, could not have pointed out any inaccuracies in the
map. Petitioner has shown no prejudice whatsoever in its late
receipt of the staff report; we do not believe it is necessary to
remand for a new hearing on this basis.
[5]Petitioner next contends that there was insufficient
evidence to support the Board's conclusion that petitioner was
operating an adult bookstore and adult mini-motion-picture theater,
and that the Board's decision to this effect was arbitrary and
capricious. The Superior Court had a duty to insure that the
decision of the Board was "supported by competent, material and
substantial evidence in the whole record," and that its decision
was not arbitrary and capricious. Fantasy World, Inc. v.
Greensboro Bd. of Adjustment, 128 N.C. App. 703, 706-07, 496 S.E.2d
825, 827, appeal dismissed and disc. review denied, 348 N.C. 496,
510 S.E.2d 382 (1998). This Court must conduct a similar review.
Id. at 707, 496 S.E.2d at 827.
After a thorough consideration of the record before the Board,
we determine that its findings of fact and conclusions of law to
the effect that petitioner was operating an adult bookstore and
adult mini-motion-picture theater, as those businesses are defined
in N.C.G.S. § 14-202.10(1) & (6), are supported by competent,material, and substantial evidence in the whole record. We will,
however, address a number of specific concerns set forth by
petitioner.
Petitioner strenuously objects to the Board's finding of fact
that: "Whether a group of publications, including both written
publications and videos, emphasize specified sexual activities or
specified anatomical areas as defined by statute can be reasonably
determined by looking at the titles and pictures on the covers of
such publications." Petitioner insists that whether a certain
publication or motion picture is "adult" may be determined only by
reading or viewing the entire publication or movie. This assertion
is based on the United States Supreme Court's holding that in
judging whether material may be considered "obscene," the trier of
fact must determine, in part, "whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value."
Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 431 (1973)
(emphasis added); see also State v. Watson, 88 N.C. App. 624, 364
S.E.2d 683, appeal dismissed and disc. review denied, 322 N.C. 485,
370 S.E.2d 235 (1988)(discussing similar requirements under North
Carolina's obscenity statute, found at N.C.G.S. § 14-190.1).
Miller, however, deals with the enforcement of criminal
obscenity statutes. In the case before us, there was no
determination that Movie Town was violating criminal obscenity laws
by selling or renting particular magazines or videos. The Board
was merely enforcing zoning requirements relating to adult
establishments. There was no requirement that the Board consider,for example, the artistic value of Movie Town's merchandise. The
Board was instead called upon to determine whether the books,
magazines, and videos sold and the motion pictures presented by
Movie Town were "distinguished or characterized by their emphasis
on matter depicting, describing, or relating to specified sexual
activities or specified anatomical areas." See G.S. § 14-202.10(1)
& (6). We agree that such a determination may reasonably be made
in the context of zoning enforcement by examination of the covers
and titles of written publications and videos.
Petitioner would argue that even if a magazine cover contains
pictures of entirely nude women, and thus displays "specified
anatomical areas," see G.S. 14-202.10(10), zoning enforcement
officers should have to read the entire magazine to determine that
the content of the magazine "as a whole" is indeed more of the
same. Such a standard would make zoning laws regarding adult
establishments unenforceable. Movie Town houses thousands of
books, magazines, and videos; it would take months to read and view
in its entirety all of the material the store sells.
Furthermore, we believe the publishers of adult videos and
magazines make a distinct effort to impart to persons viewing their
titles and covers that the content of the material is characterized
by an emphasis on pictures of unclothed breasts, buttocks, or
genitalia and/or displays of sexual acts. The magazine covers
filmed by the zoning enforcement officers in this case showed
titles such as Bump & Grind, Wicked Fetishes, Panty Girls, and Open
Legs & Lace, and all displayed women and men in various states ofundress in sexually inviting poses. The video boxes filmed by the
officers exhibited photographs of people having sexual intercourse,
with advertisements such as "Real People Having Real Sex!" and
"Explicit Anal Sex." In conclusion, in the context of zoning
enforcement, we believe it is reasonable to rely upon an analysis
of the pictures and titles on the covers of magazines, videos, and
other publications to decide whether such works emphasize the
anatomical parts and sexual activities specified in G.S. § 14-
202.10(10) & (11).
[6]Petitioner also objects to the Board's findings that the
non-adult material carried by Movie Town was of less weight and
importance compared to the adult material in part because the non-
adult stock was generally older and less expensively priced. We
believe age and price of the stock were factors the Board could
properly consider in determining the relative importance of the
adult and non-adult materials to Movie Town's business.
[7]Finally, petitioner objects to the Board's finding that
the store "contains a display area for sexually oriented devices,
including but not limited to vibrators and dildos, which helps give
an adult context to the display of the adult publications in the
area." Petitioner correctly asserts that the sale of sexually
oriented devices is not included in G.S. § 14-202.10 as a
consideration for determining whether an establishment is "adult."
However, we do not believe it was reversible error for the Board to
make an incidental finding regarding the presence of sexually
oriented devices on the property.
[8]Petitioner next argues the Superior Court improperlyrefused petitioner's request to amend its judgment to refle
ct the
judge's understanding of which version of G.S. § 14-202.10 the
Board used in deciding the case. Durham's zoning ordinance
explicitly adopts the definitions of adult establishment, adult
bookstore, and adult mini-motion-picture theater set forth in G.S.
§ 14-202.10 as its own. In 1998, after Durham adopted the
definitions as set forth in G.S. § 14-202.10, the definition of
"adult bookstore" in G.S. § 14-202.10(1) was amended to define an
adult bookstore as one:
Having as a preponderance (either in terms of the weight
and importance of the material or in terms of greater
volume of materials) of its publications . . . which are
distinguished or characterized by their emphasis on
matter depicting, describing, or relating to specified
sexual activities or specified anatomical areas, as
defined in this section.
(language added by amendment in italics). Petitioner claims the
definition of "preponderance" was thus substantively changed by the
amendment to the state statute. Petitioner contends the definition
of "adult bookstore" in Durham's ordinance did not similarly
change, given that the amendment to G.S. § 14-202.10 was not ever
expressly adopted by the City Council. Therefore, if the Board
applied the amended version of G.S. § 14-202.10 to petitioner, the
Board committed an error of law.
The Board's decision concludes that Movie Town "meets the
statutory definition of an adult bookstore whether the pre-1998
definition as clarified through case law is used or the definition
as amended in 1998 is used." The Superior Court, in reviewing the
Board's decision, found that "the Board's application of the term
'preponderance' as it exists in City ordinance throughincorporation of state statute into such ordinance was consistent
with that state statute, as interpreted by case law."
Petitioner made a motion to amend the judgment pursuant to
N.C. R. Civ. P. 52(b), requesting that the Superior Court clarify
its understanding of whether the Board used the pre- or post-
amendment definition of G.S. § 14-202.10 in making its decision.
This motion was denied, and petitioner contends to this Court that
the Superior Court erred in failing to explain its decision.
Petitioner's argument is without merit. Fantasy World, 128
N.C. App. at 710, 496 S.E.2d at 829, filed on 3 March 1998,
interpreted the word "preponderance" in G.S. § 14-202.10(6) to mean
"superiority in weight." South Blvd. Video, 129 N.C. App. at 288,
498 S.E.2d at 627, filed 21 April 1998, also recognized that the
term "preponderance" as used in G.S. § 14-202.10(1) & (6) denotes
a superiority in weight "which is a qualitative measurement."
Thus, the General Assembly's amendment of G.S. § 14-202.10,
effective 15 July 1998, merely codified the Court of Appeals'
explanations of what the word "preponderance" had meant in the
statute since its adoption. As such, the amendment was not a
substantive change in the law. Therefore, it is irrelevant whether
the Board interpreted Durham's ordinance as incorporating G.S. §
14-202.10 either before or after the statute's amendment. The
Superior Court did not err in refusing to clarify which version of
the statute it believed the Board used in making its decision.
[9]Petitioner furthermore argues that the Superior Court
erred in concluding that Durham's adult establishment ordinance is
not unconstitutionally vague or overbroad, both facially and asapplied to this case. Petitioner concedes that this Court
addressed and confirmed the facial validity of the term
"preponderance" used in G.S. § 14-202.10 in Fantasy World, 128 N.C.
App. at 708, 496 S.E.2d at 828, and South Blvd. Video, 129 N.C.
App. at 287, 498 S.E.2d at 627. Petitioner does not point out any
other portion of the statute it contends is vague or overbroad. It
merely repeats its argument that the Board applied the ordinance in
an arbitrary manner when it judged whether Movie Town was an adult
establishment by viewing the covers of books and videos displayed
in the store. This argument has been addressed above and found to
be without merit.
Petitioner's final assertion is that the Superior Court erred
in affirming the Board's decision in its entirety. As petitioner's
previous arguments, set forth in support of this assignment of
error, have failed, this assignment of error fails as well.
In conclusion, the Superior Court properly upheld the decision
of the Board that petitioner was operating an adult establishment
in violation of Durham's zoning ordinance.
Affirmed.
Judges WYNN and TIMMONS-GOODSON concur.
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