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Administrative – Licenses & Permits – Surveyor – Procedure

In re Carpenter (Lawyers Weekly No. 12-16-0713, 13 pp.) (Sanford L. Steelman Jr., J.) Appealed from Avery County Superior Court. (Marvin P. Pope Jr., J.) N.C. App. Unpub. Full-text opinion.

Holding: The Assistant Executive Director of the Board of Examiners for Engineers and Surveyors is a “natural person” who, pursuant to G.S. § 89C-22(a), “may prefer charges of … violations of” the Rules of Professional Conduct for Professional Engineers and Professional Land Surveyors.

We affirm the superior court’s order upholding the revocation of petitioner’s professional engineer and land surveyor licenses.

The Board of Examiners for Engineers and Surveyors was entitled to change the way it files charges. This change in procedure was not a “rule” change within the meaning of the Administrative Procedure Act.

Even though, under G.S. § 1-54(2), certain civil actions must be brought within one year, the disciplinary action at issue is not an “action or proceeding” within the meaning of § 1-54(2).

Since a court may raise the issue of its subject matter jurisdiction sua sponte under N.C. R. Civ. P. 12(h)(3), the parties are not entitled to the opportunity to respond to such a motion. The administrative law judge did not err by failing to allow a response to the Board’s motion to dismiss for lack of subject matter jurisdiction.

Under the Administrative Procedure Act, before an agency action is taken in a contested case, the agency must give the parties an opportunity for a hearing. G.S. § 150B-38(b). Petitioner never requested a hearing on the charges in the 13 months between the Board’s Notice of Contemplated Board Action and its decision and order. Thus, the Board properly proceeded without conducting a hearing.

Petitioner claims that the Board issued its Decision and Order without findings of fact and conclusions of law. However, petitioner relies on G.S. § 150B-42(a), which is not applicable since there was never a hearing 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.



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