Opinion
No. COA04-853
Filed 15 March 2005 This case not for publication
Appeal by petitioner from judgment entered 3 February 2004 by Judge Kenneth F. Crow in Onslow County Superior Court. Heard in the Court of Appeals 3 February 2005.
Erwin, Simpson and Stroud, P.L.L.C., by Joseph E. Stroud, Jr., for petitioner-appellant. Harris Flanagan, L.L.C., by Nelson G. Harris, for respondent-appellee.
Onslow County, No. 03 CVS 2456.
Petitioner (Thaddeus Wiener) appeals from an order affirming the North Carolina Substance Abuse Professional Certification Board's (Board) suspension of petitioner's three certifications as a substance abuse professional. We affirm.
Petitioner is a substance abuse professional, licensed under N.C.G.S. § 90-113.40 (2003), and practicing in North Carolina. He owns and operates a substance abuse counseling company, Chemical Dependency Training, Evaluation and Guidance, Inc. (CDTEG). The company provides substance abuse assessments, drug and alcohol counseling, and urine drug screens. Petitioner has been a licensed substance abuse professional in North Carolina since 1980.
On 29 May 2003 the Board sent petitioner notice of a disciplinary hearing scheduled for 19 June 2003. The notice stated in pertinent part that:
[p]ursuant to the North Carolina General Statutes Section 150B-38 and Title 21, Chapter 68 of the North Carolina Administrative Code, you are hereby notified that the NCSAPCB has received information which, if true, could result in reprimand, suspension, or revocation of your certification as a substance abuse professional, specifically as a Certified Substance Abuse Counselor.
A hearing was held 19 June 2003 before the Board. The issues before the Board were whether petitioner had (1) employed fraud, deceit or misrepresentation in obtaining the renewal of his professional certification, in violation of N.C.G.S. § 90-113.44(1) and 21 N.C. Admin. Code tit. 21, r. 68.0601(1)(b); and (2) engaged in conduct that could result in harm or injury to the public, in violation of N.C.G.S. § 90-133.44(9), and also engaged in conduct that an ordinary, reasonable, and prudent person could foresee would result in harm or injury to the public in violation of 21 N.C. Admin. Code tit. 21, r. 68.0601(5)(d).
The pertinent evidence presented at the hearing concerning misrepresentation and fraud is summarized as follows: On 30 June 1990 petitioner signed an application for re-certification of his substance abuse counselor's license. By his signature petitioner certified that, "I have been free of chemical substance dependency and have not misused alcohol or any other drug for a minimum of two (2) years prior to the application for certification."
However, at the hearing, petitioner testified that he had told an acquaintance that when he signed the application he had only eighteen months sobriety. Petitioner had told his acquaintance, "here's the deal, I'm supposed to have two years, I've only got eighteen (18) months". Additionally, a 12 June 1996 letter from petitioner to his lawyer was introduced wherein petitioner wrote that he "only had 18 months sobriety instead of the required 24 months". Also, petitioner had been admitted to a hospital in Richmond, Virginia for inpatient substance abuse treatment within the two years immediately preceding the re-certification application. He had received nineteen days of inpatient substance abuse treatment, followed by outpatient treatment for the next eighteen months.
Evidence presented at the hearing on the issue of conduct that could foreseeably cause harm or injury to the public included, in relevant part, the following: Petitioner's company employed a Mr. Raymond Hughes (Hughes) as a counselor. After hiring Hughes, petitioner discovered that Hughes had a severe alcohol abuse problem requiring inpatient treatment. Hughes agreed to attend an inpatient treatment facility in Florida. At the same time, a client receiving services from CDTEG was also being referred by petitioner to a different treatment facility in Florida. At Hughes' request, petitioner arranged for Hughes to drive the client to Florida. The Board's findings of fact and conclusions of law included, in relevant part, the following:
. . . .
2. On or about June 30 of 1990, Respondent represented to the Board in his signed statement, as part of the certification renewal process, that he had not abused alcohol or drugs during the previous two years.
3. Respondent admitted orally and in a letter written to his attorney on June 12, 1996, that he was only eighteen (18) months sober at the time he submitted his renewal application which bears his signature and is dated, June 30, 1990.
. . . .
[5.] Respondent orally testified that he knew that Mr. Raymond Hughes, his employee, abused alcohol or other drugs. Respondent testified that he performed an intervention on Mr. Hughes and required him to go to a facility for treatment.
[6.] Respondent admitted by his testimony and by his note to Raymond Hughes, that he had knowledge and assisted and directed Mr. Hughes to drive another of Respondent's clients to a substance abuse treatment facility in Tampa Springs, Florida while Mr. Hughes was driving himself to another treatment facility in Lecanto, Florida.
CONCLUSIONS OF LAW
1. The Respondent employed fraud, deceit or misrepresentation in obtaining the renewal of his certification on or about July of 1990, in violation of G.S. § 90-113.44(1) and Rule 21 NCAC [68].0601(1)(b) of the North Carolina Administrative Code. 2. By assisting and directing Mr. Raymond Hughes, an employee whom Respondent knew was abusing alcohol or other drugs, to drive another client and himself to a facility for substance abuse treatment on or about January of 1996, Respondent engaged in conduct that an ordinary, reasonable, and prudent person could foresee would result in harm or injury to the public in violation of G.S. § 90-113.44(9) and Rule 21 NCAC [68].0601(5)(d) of the North Carolina Administrative Code.
Based on these findings and conclusions the Board suspended petitioner's three substance abuse professional certifications — as a substance abuse counselor, certified clinical supervisor, and clinical addictions specialist — for a specific term. Petitioner appealed the Board's decision to superior court. On 3 February 2004 the trial court issued an order affirming the Board's findings of fact and conclusions of law. From this court order, petitioner appeals.
STANDARD OF REVIEW
The North Carolina Substance Abuse Professional Certification Board is an "occupational licensing agency" as defined by N.C.G.S. § 150B-2(4b) (2003). Hearings conducted by the Board are governed by Article 3A of the North Carolina Administrative Procedure Act. N.C.G.S. § 150B-38(a)(1) (2003). "To obtain judicial review of a final agency decision . . . the person seeking review must file a petition . . . in the superior court of the county where the person resides." N.C.G.S. § 150B-45 (2003). "The review by a superior court . . . shall be conducted by the court without a jury." N.C.G.S. § 150B-50 (2003).
The scope of review is set forth in pertinent part by N.C.G.S. § 150B-51(b) (5) and (6) (2003):
(b) [I]n reviewing a final decision, the court may affirm the decision of the agency. . . . It may also reverse or modify the agency's decision . . . if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:. . . . (5) Unsupported by substantial evidence admissible under G.S. 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 proper scope of review can be determined only from an examination of the issues presented for review by the appealing party." State ex rel. Utils. Comm'n v. Bird Oil Co., 302 N.C. 14, 21, 273 S.E.2d 232, 236 (1981). Where petitioner assigns error to the sufficiency of the evidence to support an agency decision, the proper standard of review is the "whole record test." Associated Mechanical Contractors, Inc. v. Payne, 342 N.C. 825, 832, 467 S.E.2d 398, 401 (1996). "Whole record" test review requires that the reviewing court be "bound by the findings of the [Board] if they are supported by competent, material, and substantial evidence in view of the entire record as submitted." Bashford v. N.C. Licensing Bd. for General Contractors, 107 N.C. App. 462, 465, 420 S.E.2d 466, 468 (1992) (citation and internal quotation marks omitted). "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Lackey v. Dep't of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176, (1982) (quoting 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)).
"[W]hen a petitioner's assignment of error correctly raises a question of law, the appropriate standard of review for the initial reviewing court to utilize is de novo review." Amanini v. N.C. Dep't of Human Res., 114 N.C. App. 668, 677, 443 S.E.2d 114, 119 (1994) (citation omitted). "` De novo' review requires a court to consider a question anew, as if not considered or decided by the agency." Id. at 674, 443 S.E.2d at 118.
On appeal, this court's review requires: "(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." Id. at 675, 443 S.E.2d at 118-19 (citations omitted).
Petitioner first argues that evidence presented at the hearing was insufficient to support either the Board's findings of fact No. 2 (that "Respondent represented to the Board in his signed statement, as part of the certification renewal process, that he had not abused alcohol or drugs during the previous two years[.]"), or Finding No. 3 (that "Respondent admitted orally and in a letter written to his attorney . . . that he was only eighteen (18) months sober at the time he submitted his renewal application[.]"). On this basis petitioner contends the trial court erred by finding that the Board's findings of fact were supported by substantial evidence.
Preliminarily, we conclude that the trial court applied the proper standard of review as to the sufficiency of the evidence — the "whole record" test. We next consider whether the trial court applied the standard of review correctly. This requires us to determine whether there was substantial evidence, in view of the entire record, to support the Board's findings. See G.S. § 150B-51(5). We conclude the evidence was more than adequate to support the Board's findings. Petitioner testified at the hearing that he knew he did not meet the Board's requirements regarding alcohol use at the time he signed the application for re-certification. In fact, petitioner had been admitted for inpatient substance abuse treatment just eighteen months before he signed the application. Petitioner also wrote to his lawyer that he knew he lacked the requisite period of sobriety for his re-certification. We hold there was substantial evidence supporting the Board's findings of fact.
Since there was substantial evidence supporting the Board's findings, the Board's findings are conclusive on appeal. See Bashford, 107 N.C. App. at 465, 420 S.E.2d at 468. Accordingly, the superior court did not err by sustaining the findings made by the Board. This assignment of error is overruled.
Petitioner argues next that the Board could not as a matter of law conclude that it was foreseeable that petitioner could have caused harm or injury to the public by having Hughes drive the client to Florida. Petitioner argues, further, that the individual client of CDTEG does not fall within the definition of the word "public" as used in N.C.G.S. § 90-113.44(9) (2003). On this basis, petitioner contends that any endangerment of the individual client could not, as a matter of law, constitute a violation of G.S. § 90-113.44(9). Questions concerning the Board's conclusions of law are questions of law requiring de novo review. See Amanini, 114 N.C. App. at 677, 443 S.E.2d at 119. Questions of statutory construction are also questions of law requiring de novo review. See Associated Mechanical Contractors, 342 N.C. at 831, 467 S.E.2d at 401.
Under the North Carolina Substance Abuse Professionals Certification Act, one of the enumerated grounds for disciplinary action is "[e]ngaging in conduct that could result in harm or injury to the public." G.S. § 90-113.44(9). Likewise, in regulation 68.0601 of title 21, subchapter 68 of the North Carolina Administrative Code, entitled "Grounds for Professional Discipline," one such ground is "[e]ngaging in conduct that an ordinary, reasonable, and prudent person could foresee would result in harm or injury to the public." 21 N.C. Admin. Code tit. 21, r. 68.0601(5)(d) (2004).
In the instant case, we conclude the trial court applied the proper standard of de novo review to both questions of law, and that the trial court correctly applied de novo review correctly.
First, we easily reject petitioner's contention that, because he had never personally observed Hughes attempt to drive after drinking, the record evidence and the findings of the Board cannot support the conclusion that potential harm or injury to the client was foreseeable. On the contrary, the record evidence and the Board's findings support the conclusion of law in this regard. Petitioner's next argument, that the word "public" in G.S. § 90-113.44(9) refers only to the public in general and not to individual members of the public, is without merit. Petitioner cites no controlling authority for this proposition. Petitioner's position would mean that substance abuse professionals were held to a lower standard of care for individuals, including individual clients, than for the public at large. This would be an absurd result and undermine the Declaration of Purpose of the North Carolina Substance Abuse Professionals Certification Act (N.C.G.S. § 90-113.30 (2003)), as well as regulation 68.0507(a) of title 21, subchapter 68 of the North Carolina Administrative Code, entitled "Client Welfare" under the ethical principles of conduct for substance abuse professionals. 21 N.C. Admin. Code tit. 21, r. 68.0507(a) (2004).
The North Carolina Substance Abuse Professional Certification Board was created "to safeguard the public health, safety, and welfare, to protect the public from being harmed by unqualified persons, to assure the highest degree of professional care and conduct on the part of certified substance abuse professionals[.]" G.S. § 90-113.30. The public thus protected from harm includes individuals seeking treatment services. Consequently, the statute prohibiting substance abuse professionals from endangering the public, G.S. § 90-113.44(9), applies both to individuals and to the general public. Moreover, regulation 68.0507(a) of title 21, subchapter 68 of the North Carolina Administrative Code, states "[t]he substance abuse professional shall respect the integrity and protect the welfare of the person or group with whom he or she is working." N.C. Admin. Code tit. 21, r. 68.0507(a) (2004). This clearly defines the obligations of substance abuse professionals to include a duty to individuals as well as to groups. Consequently, we conclude the trial court applied de novo review correctly. This assignment of error is overruled.
Finally, petitioner argues that he did not receive adequate notice that all three of his substance abuse professional licenses were in jeopardy. We disagree.
The notice of hearing served on petitioner stated that "the [Board] has received information which, if true, could result in reprimand, suspension, or revocation of your certification as a substance abuse professional, specifically as a Certified Substance Abuse Counselor." In the context of the North Carolina Substance Abuse Professionals Certification Act, "substance abuse professional" is defined as "[a] certified substance abuse counselor, . . . certified clinical supervisor, certified clinical addictions specialist[.]" N.C.G.S. § 90-113.31(8) (2003). Furthermore, the certified substance abuse counselor license is a prerequisite for the advanced professional certifications of certified clinical supervisor and certified addictions specialist. N.C.G.S. § 90-113.40(b) and (c) (2003). Having applied for the advanced professional certifications, petitioner knew, or should have known, that these certifications could not be maintained if his basic substance abuse counselor license was suspended or revoked. Therefore, we hold that petitioner was provided with adequate notice that all three of his substance abuse professional certifications were in jeopardy. This assignment of error is overruled.
The order of the trial court is
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).