An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-889 NORTH CAROLINA COURT OF APPEALS Filed: 17 June 2014 SAMMY’S AUTO SALES, INC. & FRED EUGENE LaCLAIRE, Petitioners
Robeson County v. No. 12 CVS 134
COMMISSIONER OF DIVISION OF MOTOR VEHICLES MICHAEL D. ROBERTSON, Respondent
Appeal by respondent from order and amended order entered
23 May 2013 by Judge Thomas H. Lock in Robeson County Superior
Court. Heard in the Court of Appeals 6 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for Respondent-Appellant.
Locklear, Jacobs, Hunt & Brooks, by Mark D. Locklear, for Petitioners-Appellees.
ERVIN, Judge.
Respondent Michael D. Robertson, Commissioner of the North
Carolina Division of Motor Vehicles, appeals from an order and
an amended order entered by the trial court that reversed the
Commissioner’s decision to suspend Petitioners’ licenses to
perform emissions testing procedures and operate an emissions
testing station and to assess civil penalties against them for
alleged violations of N.C. Gen. Stat. § 20-183.8C(a)(2). On -2- appeal, the Commissioner argues that the trial court erred by
reversing the final agency decision on the grounds that the
record contained substantial evidence tending to show that
Petitioners had, in fact, violated the applicable emissions
testing rules. After careful consideration of Respondent’s
challenge to the trial court’s order in light of the record and
the applicable law, we conclude that the trial court’s order and
amended order should be reversed.
I. Factual Background
A. Substantive Facts
1. Commissioner’s Evidence
Petitioner Sammy’s Auto Sales, Inc., was licensed as a
North Carolina Motor Vehicle Emission Equipment Inspection
Station by the North Carolina Division of Motor Vehicles while
Petitioner Fred Eugene LaClaire was a licensed Emission
Inspection Mechanic. In 2010, Joanne Beasley purchased a 2007
burgundy Chevrolet HHR from Sammy’s Auto Sales. The Chevrolet
HHR that Ms. Beasley purchased had a Vehicle Identification
Number of 3GNDA13D57S617293 and a matching Power Train Control
Module Vehicle Identification Number1 of 3GNDA13D57S617293 and
1 The Powertrain Control Module is the on-board computer that monitors both engine and transmission functions. The PCM- VIN is a vehicle’s identification number stored in the PCM. -3- had previously satisfied required State emissions inspection
standards.
Approximately eight months after Ms. Beasley purchased the
Chevrolet HHR, the vehicle’s “check engine” light came on. As a
result, Ms. Beasley took the vehicle to Sammy’s Auto Sales for
examination and repair. When Ms. Beasley picked up her vehicle
two days later, she was told that “some mechanical work” had
been done, that two sensors had been replaced, and that the
“check engine” light was now off. Although Ms. Beasley drove
her vehicle home and parked it without incident, the “check
engine” light came back on the following day. As a result, Ms.
Beasley took her vehicle back to Sammy’s Auto Sales.
On 27 April 2011, while Mr. Beasley’s Chevrolet HHR was in
the possession of Sammy’s Auto Sales, Mr. LaClaire purported to
conduct a State emissions inspection of that vehicle. A few
days after she dropped her car off for the second time, Ms.
Beasley returned to Sammy’s Auto Sales to retrieve her vehicle
and was informed that the vehicle had passed a State emissions
inspection. However, the vehicle’s “check engine” light was
still on at the time that Ms. Beasley regained possession of her
Chevrolet HHR.
On or about 3 May 2011, Aaron L. Carter, an inspector for
the NCDMV License and Theft Bureau, received a report that an -4- activity known as “clean scanning” was being conducted by Mr.
LaClaire at Sammy’s Auto Sales. More specifically, Mr. LaClaire
was alleged to have “[u]se[d] a test-defeating strategy when
conducting an emissions inspection by changing the emissions
standards for a vehicle by . . . using data provided by the on-
board diagnostic (OBD) equipment of another vehicle to achieve a
passing result” in violation of N.C. Gen. Stat. § 20-
183.8C(a)(2). As a result, Inspector Carter undertook an
investigation of the allegations that had been made against Mr.
LaClaire.
At an early point in his investigation, Inspector Carter
determined that Ms. Beasley’s Chevrolet HHR had been inspected
at Sammy’s Auto Sales by Mr. LaClaire on 27 April 2011 and that
the VIN of 3GNDA13D57S617293 and the PCM-VIN of
3GNDA13D08S617431 reported to have been associated with that
inspection did not match. As a result, Inspector Carter visited
Sammy’s Auto Sales on 4 May 2011 and determined that the PCM-VIN
of 3GNDA13D08S617431 reported in connection with the inspection
of Ms. Beasley’s Chevrolet HHR actually belonged to a 2008 white
Chevrolet HHR that was included in the inventory maintained by
Sammy’s Auto Sales and physically located on Sammy’s Auto Sales’
lot. The 2008 white Chevrolet HHR vehicle had also been
inspected at Sammy’s Auto Sales in the recent past, with -5- matching VIN and PCM-VIN figures having been reported in
connection with that inspection. After attaching a scan tool to
the onboard diagnostic computer of the 2008 white Chevrolet HHR,
Inspector Carter determined that the VIN and PCM-VIN reported at
that time matched and that no emission-related trouble codes
were reported in connection with that vehicle.
After examining the 2008 white Chevrolet HHR, Inspector
Carter spoke with Mr. LaClaire about the allegations that had
been made against him. During the course of that conversation,
Mr. LaClaire told Inspector Carter that he could not have
mistaken the 2007 burgundy Chevrolet HHR owned by Ms. Beasley
for the 2008 white Chevrolet HHR that Inspector Carter found on
the Sammy’s Auto Sales lot because one vehicle was white and the
other was burgundy. In addition, Mr. LaClaire told Inspector
Carter that Ms. Beasley’s Chevrolet HHR had been giving him
problems and that he had been unable to get the vehicle in
question to pass inspection. Finally, Mr. LaClaire expressed
frustration over the difficulties that he had experienced in
getting the “check engine” light in Ms. Beasley’s Chevrolet HHR
to go off. However, Mr. LaClaire never admitted to having
“clean scanned” Ms. Beasley’s vehicle, intentionally or
otherwise. Sammy Cox, the owner of Sammy’s Auto Sales, would
not allow Mr. LaClaire to provide a written statement during the -6- course of Inspector Carter’s investigation on the grounds that,
in the absence of such a statement, it would be nearly
impossible for the Division of Motor Vehicles to obtain a
“conviction.”
On the same date, Inspector Carter spoke with Ms. Beasley,
who confirmed that she was continuing to have trouble with the
“check engine” light coming on in her Chevrolet HHR. After
obtaining permission to inspect Ms. Beasley’s vehicle, Inspector
Carter determined that the burgundy HHR’s “check engine” light
was still on, that it was reporting an emissions-related trouble
code, and that it had, contrary to the results shown for the 27
April 2011 inspection performed by Mr. LaClaire, a matching VIN
and PCM-VIN of 3GNDA13D57S617293. Following this meeting, Ms.
Beasley voluntarily agreed to provide a written statement
concerning the problems and related inspection process involving
her vehicle.
On 6 May 2011, Inspector Carter checked the records of the
North Carolina emission testing system and discovered the
presence of entries indicating that Ms. Beasley’s burgundy
Chevrolet HHR had passed an inspection at Sammy’s Auto Sales on
6 May 2011 that revealed the presence of a matching VIN and PCM-
VIN of 3GNDA13D57S617293. In light of this fact and the fact
that the 2007 burgundy Chevrolet HHR’s VIN and PCM-VIN matched -7- in a prior State emissions inspection conducted on 9 December
2009, Inspector Carter concluded that the PCM-VIN in Ms.
Beasley’s vehicle had not been changed prior to the inspection
that Mr. LaClaire claimed to have conducted on 27 April 2011.
As a result, Inspector Carter concluded that Mr. LaClaire did,
in fact, use a test-defeating strategy when conducting an
emissions inspection of Ms. Beasley’s vehicle by using the data
provided by the on-board diagnostic equipment of the 2008 white
Chevrolet HHR in lieu of that produced by Ms. Beasley’s 2007
burgundy Chevrolet HHR in order to ensure a passing result.
2. Petitioners’ Evidence
According to Mr. LaClaire, Ms. Beasley’s car was in the
shop at Sammy’s Auto Sales on 27 April 2011 for the purpose of
being inspected. At the time that Ms. Beasley’s 2007 burgundy
Chevrolet HHR was in the inspection bay, the 2008 white
Chevrolet HHR was in the next bay, which was about twenty feet
away, having its battery recharged. Mr. LaClaire asserted that
protective mats had been placed over the front of both vehicles
in such a manner as to make it difficult to differentiate
between them, that the equipment utilized to conduct the
required emissions testing was located in front of the 2007
burgundy Chevrolet HHR, and that the cables utilized in
connection with the emissions testing process were long enough -8- to have reached either of the two vehicles. Although Mr.
LaClaire was supposed to have inspected the 2007 burgundy
Chevrolet HHR, he asserted that it was possible that he had
connected the wrong vehicle given that it was a busy day and the
hoods on both cars had been raised. In spite of his denial that
he had intentionally “clean scanned” the 2007 burgundy Chevrolet
HHR on 27 April 2011, Mr. LaClaire admitted that he did not
remember which vehicle he actually inspected on 27 April 2011.
Mr. Cox was not in the inspection area on 27 April 2011.
However, Mr. LaClaire told him that “he may have hook[ed] the
wrong car [for inspection].” After being informed of the
alleged “clean scan” of the 2007 burgundy Chevrolet HHR, Mr. Cox
had Ms. Beasley’s vehicle returned to Sammy’s Auto Sales on 6
May 2011 for the performance of additional work given that the
“check engine” light was still illuminated. Ms. Beasley’s
vehicle passed the emissions inspection on 6 May 2011 following
the replacement of several sensors.
B. Procedural History
Sammy’s Auto Sales and Mr. LaClaire each received a notice
of violation issued by the Division of Motor Vehicles, alleging
that a Type I violation pursuant to N.C. Gen. Stat. § 20-
183.8C(a)(2) had occurred and proposed that the emission
inspection station license held by Sammy’s Auto Sales and the -9- emission inspector mechanic license held by Mr. LaClaire be
suspended for 6 months, that a civil penalty in the amount of
$250.00 be assessed against Sammy’s Auto Sales, and that a civil
penalty of $100.00 be assessed against Mr. LaClaire. After
receiving these notices of violation, both Petitioners requested
that an administrative hearing be convened for the purpose of
allowing them to contest the appropriateness of the proposed
sanctions. As a result, a hearing was held on 10 October 2011
before Hearing Officer F. Milo McBryde. At the conclusion of
the administrative hearing, Hearing Officer McBryde determined
that both Petitioners had committed a Type I violation and
sustained the proposed license suspensions and civil penalties.
After Hearing Officer McBryde decided to sustain the
notices of violation, Petitioners sought review of that decision
by the Commissioner and submitted written arguments in support
of their contention that Hearing Officer McBryde had erroneously
upheld the proposed suspensions and civil penalties. Following
a review of the record and a consideration of the arguments
submitted on behalf of Petitioners, the Commissioner affirmed
Hearing Officer McBryde’s decision.
On 18 January 2012, Petitioners filed a petition seeking
judicial review of the Commissioner’s decision in the Robeson
County Superior Court. On 2 February 2012, the Commissioner -10- filed a response to Petitioners’ petition. The petition for
judicial review came on for hearing before the trial court at
the 18 February 2013 civil session of Robeson County Superior
Court. On 23 May 2013, the trial court entered an order and an
amended order reversing the Commissioner’s decision pursuant to
N.C. Gen. Stat. § 150B-51(b)(5), which authorizes a reviewing
court to modify or reverse an agency decision that is
“[u]nsupported by substantial evidence . . . in view of the
entire record as submitted.”2 The Commissioner noted an appeal
to this Court from the trial court’s orders.
II. Substantive Legal Analysis
The trial court’s decision to overturn the Commissioner’s
determination that Petitioners should be sanctioned for
violating the provisions of N.C. Gen. Stat. § 20-183.8C(a)(2)
stemmed from its belief that the record developed during the
administrative process did not support the agency’s finding that
Mr. LaClaire had intentionally used “a test-defeating strategy”
when inspecting Ms. Beasley’s vehicle. In his brief, the
Commissioner contends that the trial court erred by reversing
the final agency decision on the grounds that the record, when 2 The difference between the original order and the amended order stems from the inclusion of additional language allowing the Commissioner’s motion to quash Petitioners’ subpoenas, an issue that is not before us on appeal. As a result, the two orders are identical for purposes of our review of the Commissioner’s challenge to the trial court’s decision. -11- viewed in accordance with the applicable standard of review
does, contrary to the trial court’s decision, support a
determination that Petitioners unlawfully “clean scanned” Ms.
Beasley’s 2007 burgundy Chevrolet HHR on 27 April 2011. The
Commissioner’s contention has merit.
A. Statutory Violations
According to N.C. Gen. Stat. § 20-183.8C(a)(2), the “[u]se
[of] a test-defeating strategy when conducting an emissions
inspection by changing the emissions standards for a vehicle by
. . . using data provided by the on-board diagnostic (OBD)
equipment of another vehicle to achieve a passing result”
constitutes a Type I violation. In the event that an emissions
inspector mechanic commits a first or second Type I violation,
the Commissioner is required to asses a civil penalty of $100.00
and to suspend the mechanic’s license for 180 days. Similarly,
in the event that an emissions inspection station commits a
first or second Type I violation, the Commissioner must assess a
civil penalty of $250.00 and suspend the station’s license for
180 days. N.C. Gen. Stat. § 20-183.8B(b)(1). “A violation by
an emissions inspector mechanic is considered a violation by the
station or self-inspector for whom the mechanic is employed.”
N.C. Gen. Stat. § 20-183.8B(c). Thus, the ultimate question
before the trial court on review of the Commissioner’s decision -12- was whether the record supported a determination that Mr.
LaClaire had unlawfully used a “test-defeating strategy” during
the emissions inspection that he performed upon Ms. Beasley’s
2007 burgundy Chevrolet HHR on 27 April 2011.
B. Standard of Review
According to N.C. Gen. Stat. § 150B-51(b), a reviewing
court “may . . . reverse or modify” an agency decision in the
event that “the substantial rights of the petitioners may have
been prejudiced because the [agency’s] findings, inferences,
conclusions, or decisions” are: “(1) [i]n violation of
constitutional provisions;” “(2) [i]n excess of the statutory
authority or jurisdiction of the agency or administrative law
judge;” “(3) [m]ade upon unlawful procedure;” “(4) [a]ffected by
other error of law;” “(5) [u]nsupported by substantial evidence
. . . in view of the entire record as submitted;” or “(6)
[a]rbitrary, capricious or an abuse of discretion.”3 “With
regard to asserted errors pursuant to subdivisions (5) and (6)
of subsection (b) of this section, the court shall conduct its
review of the final decision using the whole record standard of
review.” N.C. Gen. Stat. § 150B-51(c). “As to appellate review
of a superior court order regarding an agency decision, ‘the 3 Although the General Assembly has made significant modifications to the Administrative Procedures Act in recent years, those recent amendments have not materially modified the applicable standard of review for purposes of this proceeding. -13- appellate court examines the trial court’s order for error of
law. The process has been described as a twofold task: (1)
determining whether the trial court exercised the appropriate
scope of review and, if appropriate, (2) deciding whether the
court did so properly.’” ACT-UP Triangle v. Commission for
Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)
(quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App.
668, 675, 443 S.E.2d 114, 118-19 (1994)). As a result of the
fact that Petitioners challenged the agency’s decision in their
petition for judicial review on the grounds that the record did
not support a determination that they intentionally utilized a
“test-defeating strategy” in connection with the inspection of
Ms. Beasley’s vehicle and the fact that the trial court,
“[a]fter reviewing and considering the Petition[] for Judicial
Review, the documents and legal authority submitted by the
parties, the arguments made by the parties, and a review of the
record,” determined that the agency’s decision should be
reversed “pursuant to [N.C. Gen. Stat. §] 150B-51(b)(5),” the
trial court appears to have utilized the appropriate standard of
review in concluding that the Commissioner’s decision to
sanction Petitioners should be overturned. As a result, the
only remaining issue before us in this proceeding is whether the
trial court correctly applied the applicable standard of review. -14- As we have already noted, the essential thrust of the trial
court’s decision to overturn the agency’s decision stemmed from
a determination that the agency’s decision lacked sufficient
record support. In the event that an appealing party “questions
[] whether the agency’s decision was supported by the evidence .
. . the reviewing court must apply the ‘whole record’ test.” In
re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359,
363 (1993). In applying the “whole record test,” a reviewing
court must “examine all competent evidence (the ‘whole record’)
in order to determine whether the agency decision is supported
by ‘substantial evidence.’” Amanini, 114 N.C. App. at 674, 443
S.E.2d at 118. “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” State ex rel. Comm’r of Ins. v. N.C. Fire Ins.
Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977).
“Significantly, the whole record test requires the court to
consider both evidence justifying the agency’s decision and
contrary evidence that could lead to a different result.” Cole
v. Faulkner, 155 N.C. App. 592, 597, 573 S.E.2d 614, 617 (2002).
However, “[t]he ‘whole record’ test does not allow the reviewing
court to replace the [agency’s] judgment as between two
reasonably conflicting views, even though the court could
justifiably have reached a different result had the matter been -15- before it de novo.” Thompson v. Wake County. Bd. of Educ., 292
N.C. 406, 410, 233 S.E.2d 538, 541 (1977). As a result, we must
now examine the evidence contained in the administrative record
for the purpose of determining whether it supports the agency’s
determination that Petitioners utilized a “test-defeating
strategy” in the course of the inspection that Mr. LaClaire
performed upon Ms. Beasley’s 2007 burgundy Chevrolet HHR.
C. Evidentiary Support for the Agency’s Decision
A careful review of the record developed before the agency
demonstrates the existence of ample support for the
Commissioner’s decision that Mr. LaClaire violated N.C. Gen.
Stat. § 20-183.8C(a)(2) by intentionally using a “test-defeating
strategy” during the process of inspecting Ms. Beasley’s
Chevrolet HHR.4 More specifically, Inspector Carter obtained and
presented records demonstrating that Ms. Beasley’s Chevrolet HHR
had a matching VIN and PCM-VIN of 3GNDA13D57S617293 both before
and after the purported inspection at issue in this case and
that, at the time that Mr. LaClaire inspected Ms. Beasley’s
4 In their briefs, the parties have spent considerable energy debating the extent, if any, to which a licensed individual or inspection station did or did not need to have intentionally “clean scanned” a vehicle in order for the agency to lawfully find the existence of a Type 1 violation and impose sanctions of the type at issue here. We need not, however, resolve this dispute given the fact that the record contains ample support for a finding that Mr. LaClaire’s conduct was intentional in nature. -16- Chevrolet HHR on 27 April 2011, the reported PCM-VIN differed
from the reported VIN. In addition, Inspector Carter discovered
that the PCM-VIN reported in connection with the 27 April 2011
inspection was associated with a 2008 white Chevrolet HHR that
had previously passed an emissions inspection in March 2011
while reporting matching VIN and PCM-VIN numbers of
3GNDA13D08S617431 and that this 2008 white Chevrolet HHR
happened to be located on the lot at Sammy’s Auto Sales at the
time that Ms. Beasley’s vehicle was allegedly inspected. As a
result, the record clearly supports an inference that the
emissions test results reported for Ms. Beasley’s Chevrolet HHR
on 27 April 2011 resulted from an analysis of the 2008 white
Chevrolet HHR instead of an analysis performed upon Ms.
Beasley’s vehicle.
In addition, the record contains ample support for a
conclusion that the presence of the PCM-VIN associated with the
2008 white Chevrolet HHR on the report associated with the 27
April 2011 emissions inspection of Ms. Beasley’s vehicle was not
accidental or inadvertent. Mr. LaClaire had inspected the 2008
white Chevrolet HHR with which the PCM-VIN shown on the report
resulting from the 27 April 2011 test of Ms. Beasley’s vehicle
was associated in March 2011, so he knew that vehicle would pass
the required emissions inspection. In addition, Mr. LaClaire -17- admitted to Inspector Carter that he had been frustrated by the
fact that the “check engine” light in Ms. Beasley’s vehicle
remained illuminated and by his concomitant inability to get Ms.
Beasley’s vehicle to pass the required emissions inspection.
Although Ms. Beasley’s vehicle managed to pass an emissions
inspection on 27 April 2011, the “check engine” light in her
vehicle remained on after the inspection had been completed. In
fact, the “check engine” light in Ms. Beasley’s Chevrolet HHR
remained on and Ms. Beasley’s vehicle reported emissions-related
trouble codes at the time that Inspector Carter was
investigating the allegations that had been made against Mr.
LaClaire and Sammy’s Auto Sales. As a result, we have no
difficulty in concluding that the record contains substantial
evidentiary support for the Commissioner’s decision that Mr.
LaClaire violated N.C. Gen. Stat. § 20-183.8C(a)(2) on 27 April
2011 by intentionally performing a “clean scan” on Ms. Beasley’s
2007 burgundy Chevrolet HHR in the course of the 27 April 2011
inspection.
In seeking to persuade us to reach a different result,
Petitioners argue that the record did not support an inference
that Mr. LaClaire intentionally tested the 2008 white Chevrolet
HHR rather than Ms. Beasley’s 2007 burgundy Chevrolet HHR and
that the discrepancies in the VIN and PCM-VIN associated with -18- the 27 April 2011 inspection simply reflected the negligent
testing of the wrong vehicle stemming from the fact that the two
vehicles were located approximately 20 feet apart in adjoining
service bays. In order to reach this result, however, we would
have to make a determination that the testimony of Mr. LaClaire
was credible, a result that we are not permitted to make in
applying the whole record test. Although the record certainly
contains direct evidence in the form of testimony from Mr.
LaClaire tending to support Petitioners’ explanation for the
differences in the VIN and PCM-VIN results associated with the
27 April 2011 inspection, it also contains evidence from which
the Commissioner could have reasonably concluded that Mr.
LaClaire intentionally “clean scanned” Ms. Beasley’s vehicle due
to his frustration arising from his apparent inability to
address the problem that was causing the “check engine” light in
that vehicle to remain on. In other words, although the
Commissioner might reasonably have concluded, based on the
direct evidence contained in Mr. LaClaire’s testimony, that the
discrepancy in the VIN and PCM-VIN numbers associated with the
27 April 2011 inspection resulted from inadvertent rather than
intentional conduct, he was not required to do so given the
existence of the substantial circumstantial evidence in the
record that tended to show that Mr. LaClaire’s claim of -19- negligence was not credible. As a result, given the fact that
the record contains substantial evidentiary support for the
result reached by the Commissioner and the fact that “[t]he
‘whole record’ test does not allow the reviewing court to
replace the [agency’s] judgment as between two reasonably
conflicting views, even though the court could justifiably have
reached a different result had the matter been before it de
novo,” Thompson, 292 N.C. at 410, 233 S.E.2d at 541, we hold
that the trial court erred by reversing the Commissioner’s
decision that Petitioners violated N.C. Gen. Stat. § 20-
183.8C(a)(2) by intentionally performing a “clean scan” of Ms.
Beasley’s vehicle.5
III. Conclusion
As a result, for the reasons set forth above, we conclude
decision to uphold the imposition of sanctions against
Petitioners. As a result, the trial court’s order and amended
order should be, and hereby are, reversed.
REVERSED.
5 As we have already noted, a violation by an emissions inspector mechanic constitutes a violation by the emissions inspection station by whom that mechanic is employed. N.C. Gen. Stat. § 20-183.8B(c). For that reason, a determination that Mr. LaClaire had intentionally “clean scanned” Ms. Beasley’s vehicle necessitated the imposition of sanctions on Sammy’s Auto Sales as well as the imposition of sanctions on Mr. LaClaire. -20- Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).