An unpublished opinion of the North Carolina Court of Appeals does not constitute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

that       the    trial    court     erred   by     reversing    the     Commissioner’s

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).
