Opinion
No. COA11–1459.
2012-07-3
In the Matter of Randy Alan CARPENTER, License No. PE 021262 and PLS L–3814, Petitioner–Appellant.
Randy Alan Carpenter, pro se, for petitioner-appellant. Troutman Sanders LLP, by Patricia P. Shields, for respondent-appellee NC Board of Examiners for Engineers and Surveyors.
Appeal by petitioner-appellant from an order entered 11 August 2011 by Judge Marvin P. Pope, Jr. in Avery County Superior Court. Heard in the Court of Appeals 22 March 2012. Randy Alan Carpenter, pro se, for petitioner-appellant. Troutman Sanders LLP, by Patricia P. Shields, for respondent-appellee NC Board of Examiners for Engineers and Surveyors.
STEELMAN, Judge.
The trial court correctly affirmed the decision of the Board of Examiners for Engineers and Surveyors revoking petitioner's licenses.
I. Factual and Procedural Background
Randy Carpenter (“petitioner”) was a professional engineer and land surveyor, formerly licensed by the North Carolina Board of Examiners for Engineers and Surveyors (“Board”). On 12 March 2010, the Board served petitioner with a Notice of Contemplated Action (“Notice”), instructing petitioner to request a hearing on the charges within twenty days, otherwise the Board would take the contemplated action and revoke his licenses. The Notice was issued as a result of a North Carolina State Bar investigation regarding petitioner's participation as an attorney, engineer, and land surveyor in the Penland Village land development venture in Mitchell County.
Petitioner was disbarred as a result of his involvement in the transactions at issue in this case.
Over the next thirteen months, petitioner filed several motions to dismiss the charges with the Board and the Office of Administrative Hearings (“OAH”). All of the motions to dismiss were denied, and OAH also dismissed his petition for a contested case hearing, concluding it lacked subject matter jurisdiction. Although the Board and the Administrative Law Judge (“ALJ”) presiding over the OAH proceedings directed petitioner to request a hearing on the charges before the Board, he never did so. On 8 April 2011, the Board issued a decision and order revoking petitioner's licenses based upon the charges set forth in the Notice.
On 4 May 2011, petitioner filed a petition for judicial review in the superior court of Avery County, excepting to numerous procedural aspects of the Board's decision. On 9 August 2011, the trial court affirmed the Board's decision and order.
Petitioner appeals.
II. Standard of Review
We review an administrative agency's decision under the Administrative Procedure Act, and we may reverse or modify the Board's decision only if it violates one of six statutory grounds. Cowan v. N.C. Private Protective Servs. Bd., 98 N.C.App. 498, 502, 391 S.E.2d 217, 219 (1990); N.C. Gen.Stat. § 150B–51(b) (2011). Our review is also limited to properly presented exceptions. N.C.R.App. P. 10 (2011); see also N.C. Dep't of Corr. v. Hodge, 99 N.C.App. 602, 609, 394 S.E.2d 285, 289 (1990).
“In cases appealed from administrative tribunals, we review questions of law de novo and questions of fact under the whole record test.” Diaz v. Div. of Soc. Servs., 360 N.C. 384, 386, 628 S.E.2d 1, 2–3 (2006); N.C. Gen.Stat. § 150B–51(c).
Under a de novo review, the court “consider[s] the matter anew[ ] and freely substitut[es] its own judgment for the agency's judgment.” Sutton v. N.C. Dep't of Labor, 132 N.C.App. 387, 388–89, 511 S.E.2d 340, 341 (1999). This Court's task is twofold: we must “(1) determine the appropriate standard of review and, when applicable, (2) determine whether the trial court properly applied this standard.” In re Appeal by McCrary, 112 N.C.App. 161, 166, 435 S.E.2d 359, 363 (1993). In issues of statutory interpretation, this Court gives some deference to interpretation by the agency created to administer the statute, based “upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Sav. and Loan League v. Credit Union Comm'n, 302 N.C. 458, 466, 276 S.E.2d 404, 410 (1981) (citations omitted) (internal quotation marks omitted). However, those interpretations are not binding. Id. Finally, disciplinary statutes that are in derogation of the common law are to be strictly construed. Elliott v. N.C. Psychology Bd., 348 N.C. 230, 235, 498 S.E.2d 616, 619 (1998). This requires that we limit their application to the natural and ordinary meanings of their express terms. See id. at 236, 498 S.E.2d at 620.
“The ‘whole record’ test requires the reviewing court to examine all competent evidence (the ‘whole record’) in order to determine whether the agency decision is supported by ‘substantial evidence.’ “ Amanini v. N.C. Dep't of Human Res, 114 N.C.App. 668, 674, 443 S.E.2d 114, 118 (1994). “The ‘whole record’ test does not allow the reviewing court to replace the Board'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 v. Wake Cty. Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).
III. Initiation of the Charges
In his first argument, petitioner contends that neither the Board nor its staff has statutory authority to prefer charges involving violation of the Rules of Professional Conduct for Professional Engineers and Professional Land Surveyors. We disagree.
The Board initiated disciplinary action under N.C. Gen.Stat. subsection 89C–21(a)(4), under which it may revoke the license of an engineer or land surveyor who is found guilty of violating the Rules of Professional Conduct. “In the case of violation of the rules of professional conduct, the Board shall proceed in accordance with G.S. 89C–22.” N.C. Gen.Stat. § 89C–20. “Any person may prefer charges of ... violations of ... the rules of professional conduct [which] shall be in writing and shall be sworn to by the person or persons making them and shall be filed with the Board.” N .C. Gen.Stat. § 89C22 (a). Subsection 89C–3(5) defines “person” as “[a]ny natural person, firm, partnership, corporation, or other legal entity.” The charges in this case were signed and sworn to by David Evans, a natural person acting in his capacity as Assistant Executive Director of the Board. In addition, the Board is a legal entity, created pursuant to section 89C–4.
The charges were properly initiated, and this argument is without merit.
IV. Filing of the Charges
In his second argument, petitioner contends that the Board improperly filed the charges against him. We disagree.
In January 2009, the Board changed its internal procedure for opening cases based on information gleaned from investigative activities. Prior to January 2009, the Board's staff made a recommendation that the Board authorize the opening of a case if information revealed a potential violation of its rules. If the Board agreed, the staff would initiate a preliminary review according to the procedures set forth in 21 N.C.A.C § 56.1301(c) (2010). After January 2009, a Board staff member initiated a case by signing a written complaint setting forth the basis of the charges. This change did not improperly extend the class of persons that may prefer charges. First, the change in procedure was not a “rule” change. The Administrative Procedure Act defines “rule” for the purposes of the statute and specifically provides that the term includes neither “[n]onbinding interpretative statements within the delegated authority of an agency that merely define, interpret, or explain the meaning of a statute or rule” nor “[s]tatements that set forth criteria or guidelines to be used by the staff of an agency in performing ... investigations.” N.C. Gen.Stat. § 150B–2(8a). Second, for the reasons described above, the charges were properly initiated.
Petitioner also contends that Evans did not properly sign the Board's complaint, since he did not have personal knowledge as to the validity of the investigation and failed to support the complaint with corroborative evidence. However, as petitioner did not raise this argument in his petition for judicial review with the trial court, it cannot be raised on appeal. Hodge, 99 N.C.App. at 609, 394 S.E.2d at 289.
This argument is without merit.
V. Statute of Limitations
In his third argument, petitioner contends that the Board's initiation of proceedings against him was barred by the applicable statute of limitations. We disagree.
Petitioner relies on N.C. Gen.Stat. § 1–54(2), under which certain civil actions must be brought within one year. However, the disciplinary action at issue in this case is not an “action or proceeding” as used in the statute. See Ocean Hill Joint Venture v. N.C. Dep't of Env't, Health, and Natural Res., 333 N.C. 318, 321, 426 S.E.2d 274, 276 (1993) (“[T]he grant of limited judicial authority to an administrative agency does not transform the agency into a court for purposes of the statute of limitations.”).
This argument is without merit.
VI. Motion Hearing and Statutory Procedure
In his fourth argument, petitioner contends that the Board failed to follow statutory procedure in conducting the hearing on his motion to dismiss. We disagree.
Petitioner presents four arguments in support of this contention. However, petitioner's arguments are premised on the application of provisions of the Administrative Procedure Act and the Administrative Code to a hearing on a motion to dismiss. A careful reading of the authorities upon which petitioner relies reveals that “hearing” refers only to a hearing on the charges, and not a hearing on a motion to dismiss. Subsection 150B–42(b) directs an agency to “prepare an official record of a hearing” but separately lists “[n]otices, pleadings, motions, and intermediate rulings” and “[a]ny decision, opinion, order, or report by the officer presiding at the hearing and by the agency” as items to be included in the record. N.C. Gen.Stat. § 150B–42(b). Thus, the legislature and the Board intended all mentions of “hearing” within chapter 150B and the Administrative Code, respectively, to reference the final hearing on the charges and not hearings on motions and intermediate rulings.
Since petitioner's exceptions are to procedural issues pertaining to a motion to dismiss, this argument is without merit.
VII. The ALJ's Decision
In his fifth argument, petitioner contends that the ALJ failed to conduct a motion hearing and issue a decision according to statutory procedure. We disagree.
Petitioner commenced the proceeding before the OAH by filing a petition for a contested case hearing to review the Board's decision denying his motion to dismiss for lack of personal jurisdiction. Petitioner then moved to dismiss the Board's case against him with the ALJ, alleging lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. However, petitioner never requested a hearing on these motions, as required by the Administrative Code. 26 N.C.A.C. § 3.0115(b). The ALJ did not err in deciding on petitioner's motions based on the written record, without a hearing. Additionally, since petitioner, not the Board, commenced the OAH contested case hearing, the provisions of article 3A of chapter 150B do not apply. N.C. Gen.Stat. § 150B–40 (e).
This argument is without merit.
Petitioner further contends that the ALJ erred by not allowing a response to the Board's motion to dismiss petitioner's petition for lack of subject matter jurisdiction. In the final decision dismissing the contested case petition, the ALJ referenced N.C.R. Civ. P. 12(h)(3), which provides that “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” As such, the parties are not entitled to the opportunity to respond to such a motion, since the court may raise it sua sponte.N.C.R. Civ. P. 12(h)(3) (2011). In addition, “[w]hen considering a motion to dismiss for lack of subject matter jurisdiction, a trial court is not limited to the pleadings, but may review or accept any evidence, such as affidavits, or it may hold an evidentiary hearing.” Burton v. Phoenix Fabricators & Erectors, Inc., 194 N.C.App. 779, 782, 670 S.E.2d 581, 583 (2009) (emphasis added) (citation omitted) (internal quotation marks omitted).
This argument is also without merit.
VIII. The Board's Final Decision
Petitioner's last argument is that the Board's final decision revoking his licenses was erroneous. He argues that the Board failed to follow proper procedure and failed to include findings of fact and conclusions of law in its final decision as required by statute. We disagree.
The Board's decision and order revoking petitioner's licenses was based on evidence of his violations of the Rules of Professional Conduct in connection with the Penland project. Violation of the Rules of Professional Conduct is grounds for disciplinary action, N.C. Gen.Stat. § 89C–21(a)(4), and the Board's procedure for such disciplinary action is governed by the Administrative Procedure Act, N.C. Gen.Stat. § 89C–22(b). The Act provides that “[p]rior to any agency action in a contested case, the agency shall give the parties in the case an opportunity for a hearing without undue delay.” N.C. Gen.Stat. § 150B–38(b) (emphasis added); see also21 N.C.A.C. § 56.1401 (“Whenever the Board, by its official action, acts in such a way as to affect the rights, duties, or privileges of a specific identified party, that party, upon request, will be given an administrative hearing.” (emphasis added)). Petitioner never requested a hearing on the charges in the thirteen months between the Board's Notice of Contemplated Board Action and its decision and order. Thus, the Board properly proceeded without conducting a hearing, and this argument is without merit.
Petitioner further claims that the Board issued its Decision and Order without findings of fact and conclusions of law. However, petitioner again relies on subsection 150B–42(a), which is not applicable in the instant case since there was never a hearing on the merits. Subsection 150B–42(a) directs the Board to “make a written final decision or order” which “shall include findings of fact and conclusions of law.” N.C. Gen. Stat § 150B–42 (a). However, this decision or order is made only after “review of the official record.” Id. Subsection 150B–42(b) defines the official record of a hearing, which must include documents that would only be produced pursuant to en evidentiary hearing, including questions, objections and rulings thereon, and evidence presented. N.C. Gen.Stat. § 150B–42(b). The statutory language referencing evidence and hearings leads to the conclusion that the legislature intended section 150B–42 to only apply when a hearing was held on the merits.
Even to the extent that findings of fact and conclusions of law are required, the Board did include the findings and conclusions that were the basis of its Order. It is not necessary for the findings and conclusions to be formally laid out, so long as “a reviewing court [can] determine from the record whether the judgment—and the legal conclusions which underlie it—represent a correct application of the law.” Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980).
This argument is without merit.
AFFIRMED. Judges ELMORE and STROUD concur.
Report per rule 30(e).