Opinion
No. COA10-367
Filed 15 February 2011 This case not for publication
Appeal by Petitioner from order entered 5 January 2009 by Judge Laura J. Bridges in Henderson County Superior Court. Heard in the Court of Appeals 29 September 2010.
Leonard A. Boyles, Jr., pro se. Attorney General Roy Cooper, by Thomas R. Miller, Special Deputy Attorney General, and North Carolina Real Estate Commission, by Curtis E. Aldendifer, for Defendant-Appellees.
Henderson County No. 09 CVS 1502.
Petitioner Leonard Boyles, Jr., appeals from an Order and Decision on Judicial Review entered by the trial court affirming the Findings of Fact, Conclusions of Law and Order entered by Respondent North Carolina Real Estate Commission (NCREC), in which the NCREC denied Petitioner's application for a provisional real estate broker's license. After careful consideration of Petitioner's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
On 13 November 2007, Petitioner applied to the NCREC for the issuance of a real estate provisional broker's license. In his application, Petitioner disclosed that he had been previously convicted of criminal offenses. On 19 November 2008, the NCREC informed Petitioner that, after reviewing his application, "including information pertaining to those matters reported in the `Character' section of [his] application," it had decided to afford Petitioner the opportunity to have an "informal conference" with members of the NCREC. Following the informal conference, the NCREC postponed making a decision concerning Petitioner's application "pending the opportunity for Legal staff to obtain additional information." On 11 February 2009, the NCREC informed Petitioner that:
. . . [T]he Commission determined that you have not affirmatively demonstrated that you possess the requisite character for licensure required under the Real Estate License Law. Therefore, the Commission deferred action on your application. . . . You are hereby advised of your right to a hearing before [NCREC] on the question of your character for licensure. . . . You are referred to Chapter 150B of the North Carolina General Statutes for a statement of your rights in this matter. Should you have further questions, please do not hesitate to contact [the NCREC].
Petitioner requested a hearing before the NCREC. A hearing concerning Petitioner's application was held in Raleigh, North Carolina, on 27 May 2009. At the hearing, the State introduced evidence that Petitioner had a number of prior criminal convictions, including two Driving While Impaired convictions in 1988 and 1994, a conviction for financial transaction card fraud in 1997, and several convictions for traffic offenses. Although Petitioner, who appeared pro se, stipulated to the accuracy of the State's evidence concerning his criminal record, he urged the NCREC to consider the "surrounding circumstances" in deciding whether to grant his application for a provisional broker's license.
In his testimony in support of his application, Petitioner described various incidents that he claimed had occurred during the course of his life, including statements made to him by others to the effect that the individuals that he knew as his parents were not his biological parents, that his birth certificate had been altered, and that he had been the subject of a secret long-term psychological experiment. Petitioner asserted that his financial transaction card fraud conviction stemmed from his efforts to resolve questions arising from these incidents by conducting research at the Stanford University library in California. Petitioner did not, however, present any evidence tending to corroborate his assertions concerning the incidents that he described in his testimony or otherwise addressing relevant character-related issues. On cross-examination, Petitioner acknowledged that, upon his return from California, his father pursued criminal charges against him and his sister initiated proceedings challenging his competency. Petitioner also admitted that he had failed to disclose several worthless check convictions and that, at the time he took his father's credit card in order to go to California, he had known that he was breaching his father's trust and was taking something that did not belong to him. On 13 July 2009, the NCREC issued an order denying Petitioner's application for a provisional broker's license. In its order, the NCREC made findings of fact describing Petitioner's criminal history and his failure to disclose his worthless check convictions and determined that the "evidence and testimony offered with regard to Applicant's criminal history demonstrates a lack of regard for the honesty, integrity and trustworthiness necessary to ensure the public trust should Applicant be granted a real estate provisional broker license." As a result, the NCREC concluded that Petitioner had "failed to demonstrate that he possesses the requisite character, integrity, and fitness which licensure as [a] real estate provisional broker demands" and that Petitioner "d[id] not possess the requisite integrity for licensure as a real estate provisional broker."
On 12 July 2009, Petitioner sought judicial review of the NCREC's decision. At that time, Petitioner asserted, in pertinent part, that, while the NCREC's findings of fact "are admitted," these facts had been "unfairly narrowed to substantiate an unfair and unjust decision by the NCREC with unconstitutional and otherwise unjust disregard for the evidence specifically and generally on the record." Petitioner attempted to explain certain of his criminal convictions and argued that the NCREC should have continued the hearing for further investigation, that counsel for the State had been "adversarial" instead of "attempt[ing] to discover the truth," and that, despite Petitioner's efforts to "explain[] how the Americans with Disabilities Act should apply" to his situation, the NCREC had "ignor[ed] the ADA."
On 5 January 2010, the trial court entered an order ruling on Petitioner's request for judicial review in which it stated that:
(1) Petitioner's petition is procedurally defective in that it fails to comply with N.C. Gen. Stat. § l50B-46 and its requirement that a petition "explicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks."
(2) The findings of fact contained in the Commission's final decision are fully supported by competent, material and substantial evidence comprising the entire record as a whole. . . . To the extent that Petitioner's petition sets forth exceptions to the findings of fact, they are overruled.
(3) The conclusions of law contained in the Commission's decision logically flow from the findings of fact upon which the decision is based, and are not affected by any error of law prejudicial to the rights of Petitioner. . . . To the extent that Petitioner's petition sets forth exceptions to the conclusions of law, they are overruled.
(4) The Commission's decision did not violate the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 — 12213 (hereinafter "ADA"). . . . [The ADA] limits its protection to "qualified individual[s] with a disability." 42 U.S.C. § 12132. Because Petitioner failed to demonstrate that he possessed the requisite character necessary for licensure as a real estate broker, he does not fall within the class of "qualified individuals with a disability." . . .
(5) Even if the Petitioner . . . [were] entitled to protection under Title II of the ADA, the [record] establishes that the Commission's decision to deny Petitioner's application was not motivated by discrimination due to any disability. The Commission's decision was properly based upon a consideration of Petitioner's conduct as demonstrated by [his] . . . documented and admitted record of criminal convictions and his failure to disclose his conviction for writing a worthless check. . . .
Based upon these determinations, the trial court upheld the NCREC's decision to deny Petitioner's application for a provisional broker's license. Petitioner noted an appeal to this Court from the trial court's order.
II. Legal Analysis A. Standard of Review
The NCREC "is an administrative agency subject to the requirements of Chapter 150[B] of the North Carolina General Statutes." Parrish v. Real Estate Licensing Board, 41 N.C. App. 102, 104, 254 S.E.2d 268, 269 (1979). See also, e.g., Hodgkins v. N.C. Real Estate Comm'n, 130 N.C. App. 626, 504 S.E.2d 789 (1998) (utilizing the provisions of the Administrative Procedure Act (APA) for the purpose of reviewing an appeal from the denial of an application for the issuance of a broker's license), and Watson v. N.C. Real Estate Comm., 87 N.C. App. 637, 362 S.E.2d 294 (1987) (utilizing the provisions of the APA for the purpose of reviewing the revocation of a broker's license), disc. review denied, 321 N.C. 746, 365 S.E.2d 296 (1988). According to N.C. Gen. Stat. § 150B-51(b), a reviewing court may "reverse or modify the agency's decision" only if "the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under [N.C. Gen. Stat. § ] 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
"The first four grounds for reversing or modifying an agency's decision . . . are law-based inquiries. . . . The final two grounds . . . involve `fact-based' inquiries." In re Denial of N.C. Idea's Refund, 196 N.C. App. 426, 433, 675 S.E.2d 88, 94 (2009) (citing N.C. Dept. Of Env't Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004)).
"Appellate review of a superior court order [reviewing a decision] of an agency governed by the Administrative Procedure Act requires the appellate court to examine the trial court's order for errors 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.'" Hodgkins, 130 N.C. App. at 630, 504 S.E.2d at 793 (quoting ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)). Thus:
The proper standard for the superior court's judicial review "depends upon the particular issues presented on appeal." When the petitioner "questions (1) whether the agency's decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the `whole record' test."
Id. at 631, 504 S.E.2d at 793 (quoting Act-Up, 345 N.C. at 706, 483 S.E.2d at 392). "Judicial review of whether an agency decision was based on an error of law requires a de novo review." Dew v. State ex rel. N.C. Dept. of Motor Vehicles, 127 N.C. App. 309, 310, 488 S.E.2d 836, 837 (1997). We will now review Petitioner's challenges to the trial court's order in light of the applicable standard of review.
B. Analysis of Petitioner's Arguments 1. "Fail[ure] to Exercise Reasonable Jurisprudence"
First, Petitioner asserts that the "burden of proof in this matter should be by the greater preponderance of the evidence and not whether there exists any evidence to support the decision of the North Carolina Real Estate Board `when taken as a whole.'" As we have already indicated, the standard by which the superior court must assess the sufficiency of the evidence to support an administrative agency's findings of fact is clearly enunciated in N.C. Gen. Stat. § 150B-51(b)(5), which permits a reviewing court to reverse or modify an agency decision that is "[u]nsupported by substantial evidence." "Substantial evidence" is statutorily defined as "relevant evidence a reasonable mind might accept as adequate to support a conclusion." N.C. Gen. Stat. § 150B-2(8b). Petitioner has cited no authority in support of his contention that a different standard of review should be utilized in reviewing the NCREC's decision in this case, and we know of none. Thus, this portion of Petitioner's challenge to the trial court's order lacks merit.
2. Failure to Consider Petitioner's Evidence
In addition, Petitioner contends that the trial court's decision demonstrates that it ignored his testimony before the NCREC and failed to consider "the consistency of [his] testimony and oral argument." According to Petitioner, the Chairman of the NCREC "clearly revealed his unwillingness to consider why [Petitioner] chose to commit financial card fraud in seeking proof of an outrageous conspiracy to cause emotional and mental anguish through actions of the University of North Carolina" and that the NCREC "could [only have] reached [its] decision in twenty minutes" by "ignoring" that evidence. Petitioner does not, however, cite any evidence tending to show that his testimony was "ignored" aside from the fact that the NCREC declined to rule in his favor. As a result, Petitioner's argument amounts to a quarrel with the weight which the NCREC elected to give his evidence and a request that we reweigh the record evidence on appeal.
"At this juncture, we reiterate that it is the function of the administrative agency to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence. We cannot substitute our judgment for that of the agency when the evidence is conflicting." In re McElwee, 304 N.C. 68, 87, 283 S.E.2d 115, 126-27 (1981) (citing Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 406, 269 S.E.2d 547, 565 (1980)). By arguing that the NCREC failed to credit and base its decision on his explanatory testimony, Petitioner is essentially asking us to substitute our judgment concerning the weight and sufficiency of the evidence for that of the NCREC, a step we are not allowed to take under the applicable standard of review. Thus, Petitioner is not entitled to any relief on the basis of this contention.
3. Petitioner's Compliance with Administrative Procedure Act
In its order, the trial court ruled that Petitioner's request for judicial review was "procedurally defective in that it fails to comply with N.C. Gen. Stat. § l50B-46 and its requirement that a petition `explicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks.'" In challenging this determination on appeal, Petitioner simply contends that:
It is not entirely clear from an examination of the trial court's order whether it refused to disturb the NCREC's order on the basis of the deficiencies it determined to exist in Petitioner's petition or whether it declined to grant Petitioner's request for relief based on the other grounds stated in its order. As a result of this lack of clarity and the fact that the trial court denied, rather than dismissed, Petitioner's petition, we have briefly discussed all of the challenges to the trial court's order that have been advanced in Petitioner's brief.
Seems clear that the standard for a pro se petitioner has been met in that the facts if true deserve consideration. Certainly it has been ruled that nonsense pleadings do not deserve consideration but in addition to the Petition For Review there is substantial supporting evidence.
Petitioner's brief contains no legal argument or citation to any authority that is in any way responsive to the trial court's determination that his petition for judicial review failed to comply with N.C. Gen. Stat. § 150B-46. To the extent that Petitioner's argument amounts to a claim that filings made by pro se litigants such as himself should be judged by a separate standard, it is without merit. On the contrary,
[t]hough we are not unsympathetic to the difficulties faced by a pro se litigant, we have recognized that fairness to opposing parties requires holding pro se litigants to minimal standards of compliance with the Rules of Civil Procedure.
Harrison v. Harrison, 180 N.C. App. 452, 455, 637 S.E.2d 284, 287 (2006) (citing House Healers Restorations, Inc. v. Ball, 112 N.C. App. 783, 787, 437 S.E.2d 383, 386 (1993)). As a result, Petitioner is not entitled to any relief on appeal based on his challenge to the trial court's determination that his petition for judicial review was procedurally defective.
4. Conduct of Counsel for the State
Next, Petitioner claims that the counsel representing the State at the hearing held before the NCREC "failed to perform [her] statutory duty by ignoring facts in order to achieve an outcome contrary to truth and fairness from the [NCREC.]" As we understand it, this argument amounts to a contention that the State's counsel should have acquiesced in Petitioner's description of his life experiences and shared his view of their significance, thereby causing her to be less "zealous" in her opposition to his request for the issuance of a provisional broker's license. Once again, Petitioner has not established that counsel for the State failed to perform any legally required duty during the proceedings before the NCREC or cited any legal authority in support of his challenge to the conduct of counsel for the State. As a result, this argument lacks merit.
5. Conduct of the Special Deputy Attorney General
In addition, Petitioner argues that the Special Deputy Attorney General assigned to handle his appeal from the trial court's order did not properly "perform his statutory duties" because he failed to adequately investigate Petitioner's claims predicated on his personal history. Except for a generalized claim that he is entitled to a full investigation of his allegations, Petitioner has not directed our attention to any specific "statutory duty" that the Special Deputy Attorney General failed to perform. Thus, Petitioner is not entitled to any relief from the trial court's order on the basis of this argument.
6. Notice of Hearing
Moreover, Petitioner asserts that the notice of the hearing provided by the NCREC was "defective by failing to provide for proceeding as an indigent or in a venue other than in Raleigh, N.C." Once again, Petitioner has failed to advance any legal argument or cite any authority in support of his position. Instead, he has advanced a conclusory assertion that the NCREC's failure to hold the hearing closer to his home violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution. Allegations of "`[c]onstitutional error will not be considered for the first time on appeal.'" State v. Wilkerson, 363 N.C. 382, 420, 683 S.E.2d 174, 198 (2009) (quoting State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005)), cert. denied, ___ U.S. ___, 176 L. Ed. 2d 734, 130 S. Ct. 2104 (2010). As a result of the fact that the record does not establish that Petitioner advanced this argument before the NCREC or the trial court and the fact that Petitioner has not cited any legal authority in support of his position, we conclude that this portion of Petitioner's argument lacks merit.
7. Assessment of the Costs
In its order, the trial court required Petitioner to pay the costs of this action, a decision that Petitioner challenges as "unwarranted." In attacking this component of the trial court's order, Petitioner merely states that he "presented a good faith argument and there is no reason to charge a disabled man the costs of the [NCREC.]" Once again, "[Petitioner] has cited no authority in support of his argument[.]. . . . Pursuant to Rule 28(b)[(6)] of the North Carolina Rules of Appellate Procedure, an assignment of error is deemed abandoned if the [Petitioner] fails to cite reasonable authority in its support." State v. Alston, 341 N.C. 198, 224, 461 S.E.2d 687, 700 (1995) (citing State v. Bonney, 329 N.C. 61, 82, 405 S.E.2d 145, 157 (1991)), cert denied, 516 U.S. 1148, 134 L. Ed. 2d 100, 116 S. Ct. 1021 (1996). As a result, once again, we conclude that Petitioner is not entitled to relief on the basis of this argument.
8. Application of the Americans with Disabilities Act
Finally, Petitioner asserts that the "Americans With Disability applies in this case" because "the record shows [him] to be disabled" and "the ADA controls the actions of state and quasi-state agencies." Although Petitioner's ADA-based argument is not entirely clear, it seems to rest on contentions that (1) Petitioner has a psychological disability due, in part, to traumatic events in his life; (2) some of Petitioner's criminal convictions were "directly related to a mental illness"; and (3), in order to "follow the spirit and guidelines of the ADA," the NCREC should have considered "the nature of his disability . . . as a mitigation to the conclusion [that] he lacks sufficient character and morality for a provisional broker's license."
As we have already noted, the trial court rejected Petitioner's ADA-based claim on the grounds that "Petitioner failed to demonstrate that he possessed the requisite character necessary for licensure as a real estate broker" and does not, for that reason, "fall within the class of `qualified individuals with a disability' entitled to protection under" the ADA. In addition, the trial court concluded that, "[e]ven if the Petitioner [were] . . . entitled to protection under . . . the ADA, the evidence . . . establishes that the Commission's decision to deny Petitioner's application. . . . was properly based upon a consideration of . . . Petitioner's documented and admitted record of criminal convictions and his failure to disclose his conviction for writing a worthless check in his application." In challenging the trial court's order, Petitioner acknowledges that the protections of the ADA are only available to "qualified" individuals with a disability and that the NCREC could have properly considered his criminal record in evaluating his moral fitness. Instead, Petitioner argues that his psychological condition and life experiences "mitigate" both his criminal record and his failure to report certain criminal convictions in his application for a provisional broker's license. Petitioner's position appears to be, in essence, that, had the NCREC understood that his criminal record resulted from his psychological condition and that his psychological condition stemmed from his stressful life experiences, it would not have concluded that he "failed to demonstrate that he possesses the requisite character, integrity, and fitness" required for licensure as a real estate provisional broker. We do not find this argument persuasive.
N.C. Gen. Stat. § 93A-4(b) (2009) provides that:
An applicant for licensure under this Chapter shall satisfy the Commission that he or she possesses the competency, honesty, truthfulness, integrity, and general moral character necessary to protect the public interest and promote public confidence in the real estate brokerage business. The Commission may investigate the moral character of each applicant for licensure and require an applicant to provide the Commission with a criminal record report.
N.C. Gen. Stat. § 93A-94(b) places the burden on the applicant to "satisfy the Commission" concerning his or her moral character. For that reason, this Court has previously held that the NCREC may properly consider an applicant's criminal record in determining whether he or she possesses the necessary integrity:
Our Supreme Court held that "evidence of criminal convictions has long been properly admitted and considered in hearings . . . to determine an applicant's moral character." We hold this evidence is properly considered by the North Carolina Real Estate Commission in reviewing applications. . . . In this case, there is evidence of petitioner's intentional violation of the law. A person's tendency to abide by the law of the society in which he lives is a fair measure of that person's trustworthiness and honesty. Such proof of petitioner's failure to be a law-abiding citizen is therefore relevant to determin[ing] whether or not he possesses the character and integrity sufficient to be entrusted to "hold the position of public trust and confidence which licensure as a real estate broker demands."
Hodgkins, 130 N.C. App. at 632-33, 504 S.E.2d at 794 (quoting from NCREC's notice to the appellant in that case). The threshold inquiry that the NCREC must undertake is whether an applicant has demonstrated the required moral character and integrity; for that reason, the NCREC need not reach the issue of whether an applicant suffers from a disability unless it first determines that the applicant has sufficient moral character. Petitioner cites no legal authority indicating that the NCREC must consider an applicant's psychological illness in deciding whether he or she possesses the necessary integrity, and we know of none. Simply put, we conclude that the NCREC correctly determined that Petitioner should be held to the same moral standards as other applicants regardless of his mental or emotional condition. Therefore, we conclude that Petitioner's ADA-based argument is without merit.
III. Conclusion
As a result, for the reasons set forth above, the trial court did not err by affirming the NCREC's decision. Thus, the trial court's decision should be, and hereby is, affirmed.
AFFIRMED.
Judges BRYANT and STEELMAN concur. Report per Rule 30(e).