Administrative – Attorney’s Fees – G.S. § 6-19.1 – Statutory Construction

Even though the respondent-board lacked the authority to discipline petitioner for his inspection of a swimming pool heater, G.S. § 6-19.1 does not authorize an award of attorney’s fees resulting from a disciplinary action by a licensing board.

We reverse the superior court’s award of $29,347 in attorney’s fees to petitioner.

G.S. § 6-19.1(a) provides in part, “In any civil action, other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board, brought by the State . . . unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney’s fees. . . .”

The respondent-board’s interpretation of the statute results in the following reading: “In any civil action – other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board – brought by the State . . . .”

Petitioner’s interpretation of the statute results in this reading: “In any civil action – other than an adjudication for the purpose of establishing or fixing a rate – or a disciplinary action by a licensing board, brought by the State . . . .”

We agree with respondent’s interpretation. The legislature’s use of the word “any” before the phrase “civil action” differentiates the phrase from the two phrases following “other than” – “an adjudication for the purpose of establishing or fixing a rate” and “a disciplinary action by a licensing board” – each introduced with a singular indefinite article, respectively “an” and “a.” The singular indefinite articles convey that rate cases and licensing board actions are separate and distinct members of the class of “any civil action,” and therefore are excluded from the statute.

Had the legislature sought to include disciplinary actions by licensing boards within the scope of the statute, it would not have used a single indefinite article and a singular form of the term “action.”

This interpretation is also consistent with the structure of § 6-19.1. By using the last comma to separate the phrase “disciplinary action by a licensing board” from the phrase “brought by the State . . . ,” the legislature extended the statutory exclusion to disciplinary actions.

Because the phrase “a disciplinary action by a licensing board” is designated with the indefinite article “a,” and is separated from the rest of the statute by way of commas, we hold that the plain language of the statute conveys the legislature’s intent to exclude disciplinary actions by licensing boards from the purview of the § 6-19.1.

The statutory interpretation and legislative history of the statute also support excluding disciplinary actions by licensing boards from its scope.

Reversed.

Winkler v. North Carolina State Board of Plumbing, Heating & Fire Sprinkler Contractors (Lawyers Weekly No. 011-262-18, 15 pp.) (Lucy Inman, J.) Appealed from Watauga County Superior Court (Edwin Wilson, J.) Jeffrey Gray for petitioner; Angela Farag Craddock, John Fountain and Reed Fountain for respondent; M. Jackson Nichols, Anna Baird Choi and Janet Thoren for amici curiae. N.C. App.