DURHAM VIDEO v. Durham Bd. of Adjustment

• Decision Date: 19 June 2001
• Docket Number: No. COA00-609.,COA00-609.
• Citation: 550 S.E.2d 212,144 NC App. 236
• Court: North Carolina Court of Appeals
• Parties: DURHAM VIDEO & NEWS, INC., d/b/a Movie Town, Petitioner, v. DURHAM BOARD OF ADJUSTMENT, and City of Durham, Respondents.

550 S.E.2d 212

144 NC App. 236

DURHAM VIDEO & NEWS, INC., d/b/a Movie Town, Petitioner, v. DURHAM BOARD OF ADJUSTMENT, and City of Durham, Respondents.

No. COA00-609.

Court of Appeals of North Carolina.

June 19, 2001.

Loflin & Loflin, by Thomas F. Loflin, III, Durham, for petitioner.

Karen A. Sindelar, Assistant City Attorney, City of Durham, for respondents.

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).

We first address whether an administrative warrant was needed in this situation. The Fourth Amendment's prohibition against unreasonable searches does apply to administrative inspections of private commercial property. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 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, 101 S.Ct. 2534, 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, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370, 376 (1985) (citation omitted). 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, 105 S.Ct. at 2782, 86 L.Ed.2d at 377.

In Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 2326, 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 were packaged 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.

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, 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 in an 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.

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...