{ "id": 11433691, "name": "DURHAM VIDEO & NEWS, INC., d/b/a Movie Town, Petitioner v. DURHAM BOARD OF ADJUSTMENT, and CITY OF DURHAM, Respondents", "name_abbreviation": "Durham Video & News, Inc. v. Durham Board of Adjustment", "decision_date": "2001-06-19", "docket_number": "No. COA00-609", "first_page": "236", "last_page": "247", "citations": [ { "type": "official", "cite": "144 N.C. App. 236" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "129 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649689 ], "opinion_index": -1, "case_paths": [ "/nc-app/129/0282-01" ] }, { "cite": "370 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "discussing similar requirements under North Carolina's obscenity statute, found at N.C.G.S. \u00a7 14-190.1" } ], "opinion_index": 0 }, { "cite": "322 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515335, 2513168, 2514738, 2514134, 2517375 ], "year": 1988, "pin_cites": [ { "parenthetical": "discussing similar requirements under North Carolina's obscenity statute, found at N.C.G.S. \u00a7 14-190.1" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0485-02", "/nc/322/0485-03", "/nc/322/0485-04", "/nc/322/0485-01", "/nc/322/0485-05" ] }, { "cite": "364 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "discussing similar requirements under North Carolina's obscenity statute, found at N.C.G.S. \u00a7 14-190.1" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358805 ], "year": 1988, "pin_cites": [ { "parenthetical": "discussing similar requirements under North Carolina's obscenity statute, found at N.C.G.S. \u00a7 14-190.1" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0624-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "24", "parenthetical": "emphasis added" }, { "page": "431", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/413/0015-01" ] }, { "cite": "510 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659687, 1659928, 1659898, 1659836, 1659934 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0496-05", "/nc/348/0496-02", "/nc/348/0496-03", "/nc/348/0496-04", "/nc/348/0496-01" ] }, { "cite": "496 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "827" }, { "page": "827" }, { "page": "829" }, { "page": "828" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656677 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "706-07" }, { "page": "710" }, { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0703-01" ] }, { "cite": "334 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527768 ], "year": 1985, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0646-01" ] }, { "cite": "510 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659776, 1659845, 1659883, 1659694, 1659889 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0501-01", "/nc/348/0501-02", "/nc/348/0501-04", "/nc/348/0501-03", "/nc/348/0501-05" ] }, { "cite": "498 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "629" }, { "page": "627" }, { "page": "627" } ], "opinion_index": 0 }, { "cite": "261 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 806", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574340, 8574361, 8574382, 8574319, 8574393 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0806-02", "/nc/298/0806-03", "/nc/298/0806-04", "/nc/298/0806-01", "/nc/298/0806-05" ] }, { "cite": "251 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "703" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553399 ], "year": 1979, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0519-01" ] }, { "cite": "442 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531855 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "329" }, { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/us/442/0319-01" ] }, { "cite": "472 U.S. 463", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512280 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "469", "parenthetical": "citation omitted" }, { "page": "376", "parenthetical": "citation omitted" }, { "page": "469" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/us/472/0463-01" ] }, { "cite": "452 U.S. 594", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1313625 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/452/0594-01" ] }, { "cite": "387 U.S. 541", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338972 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/387/0541-01" ] }, { "cite": "129 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649689 ], "weight": 3, "pin_cites": [ { "page": "291-92" }, { "page": "288" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0282-01" ] } ], "analysis": { "cardinality": 1034, "char_count": 27172, "ocr_confidence": 0.75, "pagerank": { "raw": 2.0728966099361958e-07, "percentile": 0.7580109882854175 }, "sha256": "028b43bc34d8c1e1a776aa11d0b4b3dcf721db009163ab21899986a92dedfc04", "simhash": "1:fcad45782b01a70c", "word_count": 4312 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TIMMONS-GOODSON concur." ], "parties": [ "DURHAM VIDEO & NEWS, INC., d/b/a Movie Town, Petitioner v. DURHAM BOARD OF ADJUSTMENT, and CITY OF DURHAM, Respondents" ], "opinions": [ { "text": "HUDSON, Judge.\nPetitioner appeals from a judgment and order of the Durham County Superior Court affirming the Durham Board of Adjustment\u2019s decision that petitioner was operating an adult establishment in violation of the Durham zoning code. We affirm the determination of the Superior Court.\nOn 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\u2019s store, Movie Town, is located in a \u201cGeneral Commercial\u201d district in which adult establishments are not allowed.\nOn 16 October 1998, petitioner appealed the Notice to the Durham City/County Board of Adjustment (the Board) pursuant to N.C.G.S. \u00a7 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. \u00a7 160A-388(e), which court affirmed the Board\u2019s 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.\nPetitioner first argues that the Superior Court erred in its ruling that the administrative search warrant used to collect all of the City\u2019s 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.\nAt 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\u2019s motion. The Superior Court upheld the Board\u2019s decision, finding that the warrant was valid, and that even if it was not, a warrant was not constitutionally required \u201cbecause all materials viewed by Mr. Simmons and associates were openly displayed, and commercially available and viewable by the public.\u201d See N.C.G.S. \u00a7 15-27.2(f) (evidence obtained by invalid warrant may be used when warrant is not constitutionally required under the circumstances of the case).\nWe first address whether an administrative warrant was needed in this situation. The Fourth Amendment\u2019s prohibition against unreasonable searches does apply to administrative inspections 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 \u201cclosely regulated\u201d 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.\nThe above criteria are not present in the case before us. Video and book sales are not pervasively regulated industries, and Durham\u2019s 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\u2019s contents as may a customer and, based on their observations, obtain a warrant authorizing a more detailed search.\n\u201cA search occurs when \u2018an expectation of privacy that society is prepared to consider reasonable is infringed.\u2019 \u201d Maryland v. Macon, 472 U.S. 463, 469, 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 \u201c[t]he officer\u2019s 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.\u201d Id. at 469, 86 L. Ed. 2d at 377.\nIn 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 \u201cthere 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.\u201d 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\u2019s 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: \u201cThe 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.\u201d 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.\nIn the present case, zoning enforcement officers Dennis Doty, Pratt Simmons, and Landy Void visited petitioner\u2019s 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.\nWe 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. \u00a7 15-27.2(c). In the present case, zoning enforcement officer Pratt Simmons set forth in an affidavit that he had visited petitioner\u2019s store on 15 and 16 October 1998:\nDuring 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.\nPetitioner contends Simmons\u2019 statements were merely \u201cconclusory\u201d and inadequate to support a warrant. However, the language in Simmons\u2019 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\u2019s argument must therefore fail.\nPetitioner 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, 76 N.C. App. 646, 649, 334 S.E.2d 103, 105 (1985). For the same reason, we decline to address petitioner\u2019s argument on this point as well. See N.C. R. App. P. 10(b)(1)\nPetitioner next contends the Superior Court erred in determining the Board did not violate its own rules which required that the planning department\u2019s staff report on petitioner\u2019s 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\u2019s motion to suppress had been argued at length, was denied.\nHaving 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\u2019s appeal, the petitioner\u2019s building permit and floor plan submitted with that permit, petitioner\u2019s sign permit, the definition of adult establishment from Durham\u2019s ordinance and the North Carolina statutes, and a summary of the Court of Appeals\u2019 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.\nCounsel for petitioner did argue to the Board that there were certain inaccurate notations on the map of the store included 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.\nPetitioner next contends that there was insufficient evidence to support the Board\u2019s conclusion that petitioner was operating an adult bookstore and adult mini-motion-picture theater, and that the Board\u2019s decision to this effect was arbitrary and capricious. The Superior Court had a duty to insure that the decision of the Board was \u201csupported by competent, material and substantial evidence in the whole record,\u201d 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.\nAfter 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. \u00a7 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.\nPetitioner strenuously objects to the Board\u2019s finding of fact that: \u201cWhether 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.\u201d Petitioner insists that whether a certain publication or motion picture is \u201cadult\u201d may be determined only by reading or viewing the entire publication or movie. This assertion is based on the United States Supreme Court\u2019s holding that in judging whether material may be considered \u201cobscene,\u201d the trier of fact must determine, in part, \u201cwhether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.\u201d 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\u2019s obscenity statute, found at N.C.G.S. \u00a7 14-190.1).\nMiller, 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\u2019s 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 \u201cdistinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas.\u201d See G.S. \u00a7 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.\nPetitioner would argue that even if a magazine cover contains pictures of entirely nude women, and thus displays \u201cspecified anatomical areas,\u201d 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 \u201cas a whole\u201d 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.\nFurthermore, 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 of undress in sexually inviting poses. The video boxes filmed by the officers exhibited photographs of people having sexual intercourse, with advertisements such as \u201cReal People Having Real Sex!\u201d and \u201cExplicit Anal Sex.\u201d 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. \u00a7 14-202.10(10) & (11).\nPetitioner also objects to the Board\u2019s 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\u2019s business.\nFinally, petitioner objects to the Board\u2019s finding that the store \u201ccontains 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.\u201d Petitioner correctly asserts that the sale of sexually oriented devices is not included in G.S. \u00a7 14-202.10 as a consideration for determining whether an establishment is \u201cadult.\u201d 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.\nPetitioner next argues the Superior Court improperly refused petitioner\u2019s request to amend its judgment to reflect the judge\u2019s understanding of which version of G.S. \u00a7 14-202.10 the Board used in deciding the case. Durham\u2019s zoning ordinance explicitly adopts the definitions of adult establishment, adult bookstore, and adult mini-motion-picture theater set forth in G.S. \u00a7 14-202.10 as its own. In 1998, after Durham adopted the definitions as set forth in G.S. \u00a7 14-202.10, the definition of \u201cadult bookstore\u201d in G.S. \u00a7 14-202.10(1) was amended to define an adult bookstore as one:\nHaving 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.\n(language added by amendment in italics). Petitioner claims the definition of \u201cpreponderance\u201d was thus substantively changed by the amendment to the state statute. Petitioner contends the definition of \u201cadult bookstore\u201d in Durham\u2019s ordinance did not similarly change, given that the amendment to G.S. \u00a7 14-202.10 was not ever expressly adopted by the City Council. Therefore, if the Board applied the amended version of G.S. \u00a7 14-202.10 to petitioner, the Board committed an error of law.\nThe Board\u2019s decision concludes that Movie Town \u201cmeets 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.\u201d The Superior Court, in reviewing the Board\u2019s decision, found that \u201cthe Board\u2019s application of the term \u2018preponderance\u2019 as it exists in City ordinance through incorporation of state statute into such ordinance was consistent with that state statute, as interpreted by case law.\u201d\nPetitioner 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. \u00a7 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.\nPetitioner\u2019s 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 \u201cpreponderance\u201d in G.S. \u00a7 14-202.10(6) to mean \u201csuperiority in weight.\u201d South Blvd. Video, 129 N.C. App. at 288, 498 S.E.2d at 627, filed 21 April 1998, also recognized that the term \u201cpreponderance\u201d as used in G.S. \u00a7 14-202.10(1) & (6) denotes a superiority in weight \u201cwhich is a qualitative measurement.\u201d Thus, the General Assembly\u2019s amendment of G.S. \u00a7 14-202.10, effective 15 July 1998, merely codified the Court of Appeals\u2019 explanations of what the word \u201cpreponderance\u201d 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\u2019s ordinance as incorporating G.S. \u00a7 14-202.10 either before or after the statute\u2019s 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.\nPetitioner furthermore argues that the Superior Court erred in concluding that Durham\u2019s adult establishment ordinance is not unconstitutionally vague or overbroad, both facially and as applied to this case. Petitioner concedes that this Court addressed and confirmed the facial validity of the term \u201cpreponderance\u201d used in G.S. \u00a7 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.\nPetitioner\u2019s final assertion is that the Superior Court erred in affirming the Board\u2019s decision in its entirety. As petitioner\u2019s previous arguments, set forth in support of this assignment of error, have failed, this assignment of error fails as well.\nIn conclusion, the Superior Court properly upheld the decision of the Board that petitioner was operating an adult establishment in violation of Durham\u2019s zoning ordinance.\nAffirmed.\nJudges WYNN and TIMMONS-GOODSON concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Loflin & Loflin, by Thomas F. Loflin, III, for petitioner.", "Karen A. Sindelar, Assistant City Attorney, City of Durham, for respondents." ], "corrections": "", "head_matter": "DURHAM VIDEO & NEWS, INC., d/b/a Movie Town, Petitioner v. DURHAM BOARD OF ADJUSTMENT, and CITY OF DURHAM, Respondents\nNo. COA00-609\n(Filed 19 June 2001)\n1. Zoning\u2014 search for adult merchandise \u2014 administrative search warrant required\nAn 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\u2019s 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\u2019s 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.\n2. Search and Seizure\u2014 administrative search warrant \u2014 supporting affidavit\nAn 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.\n3. Zoning\u2014 issue not raised before board of adjustment \u2014 not before superior court\nPetitioner\u2019s 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.\n4. Zoning\u2014 report from planning staff \u2014 not timely received\u2014 no prejudice\nThere 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.\n5. Zoning\u2014 adult establishment \u2014 sufficiency of evidence\nThere 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 \u201cadult\u201d 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.\n6. Zoning\u2014 adult establishment ordinance \u2014 non-adult materials\nThe 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.\n7. Zoning\u2014 adult establishment ordinance \u2014 sexual devices\nA 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. \u00a7 14-202.10.\n8. Zoning\u2014 adult establishment ordinance \u2014 amendment of statute\nThe superior court did not err in a zoning action by refusing to clarify which version of N.C.G.S. \u00a7 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\u2019 explanations of the word \u201cpreponderance\u201d and was not a substantive change in the law.\n9. Constitutional Law\u2014 adult establishment zoning ordinance \u2014 not vague or overbroad\nAn adult establishment zoning ordinance was not unconstitutionally vague or overbroad, both facially and as applied.\nAppeal by petitioner from judgment and order entered 1 September 1999, and from order entered 15 November 1999 by Judge Knox V. Jenkins, Jr., in Durham County Superior Court. Heard in the Court of Appeals 28 March 2001.\nLoflin & Loflin, by Thomas F. Loflin, III, for petitioner.\nKaren A. Sindelar, Assistant City Attorney, City of Durham, for respondents." }, "file_name": "0236-01", "first_page_order": 264, "last_page_order": 275 }