Boston v. NC PRIVATE PROTECTIVE SERV.

385 S.E.2d 148 (1989)

Joseph Henry Lander BOSTON, Petitioner-Appellee, v. N.C. PRIVATE PROTECTIVE SERVICES BOARD, Respondent-Appellant.

No. 892SC66.

Court of Appeals of North Carolina.

November 7, 1989.

*150 Attorney Gen. Thornburg by Asst. Atty. Gen. Teresa L. White, Raleigh, for respondent-appellant.

Jeffrey L. Miller, Greenville, for petitioner-appellee.

EAGLES, Judge.

When reviewing a final administrative decision, the trial judge's conclusion must "rest on whether there was substantial evidence in view of the entire record submitted." Lackey v. N.C. Dept. of Human Resources, 306 N.C. 231, 237-8, 293 S.E.2d 171, 176 (1982). We note parenthetically that Lackey interpreted G.S. 150A-51(5) which has been recodified intact as G.S. 150B-51(5). This standard of judicial review is known as the "whole record" test. Id. at 238, 293 S.E.2d at 176 citing Thompson v. Wake Cty. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977).

"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. 306 N.C. at 237, 293 S.E.2d at 176 quoting Comm. of Ins. v. Fire Ins. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977).

Respondent first assigns as error the trial judge's determination that the Board's "Final Agency Decision is `affected by error of law.'" Respondent argues that G.S. 74C-8(d)(3) provides that "a person must have at least three years experience within the past five years in private investigative work." The respondent further argues that G.S. 74C-3(a)(8) sets out that private investigative work is work done by an individual who is "in the business or accepts employment to furnish, agrees to make, or makes an investigation for the purpose of obtaining information with reference to: ...." The respondent states that a runner locates a person for his own use and not someone else so he is "not in the business of" as contemplated by G.S. 74C-3(a)(8). We disagree.

We note initially that G.S. 85C-1(9) defines a runner as "a person employed by a bail bondsman for the purpose of assisting the bail bondsman in presenting the defendant in court when required, or to assist in apprehension and surrender of defendant to the court or keeping defendant under necessary surveillance...." A runner is employed by the bail bondsman and investigates the whereabouts of a particular defendant for his employer. Accordingly, the nature of a runner's work is investigative and the Board erred in not considering it.

Secondly, the respondent assigns as error the trial court's determination that respondent exceeded its statutory authority by refusing to consider petitioner's experience as a runner. The respondent contends that it did not exceed its statutory power since G.S. 74C-5(2), (5), and (6) empowers it to do the following: "(2) ... determine minimum qualifications, ... and establish minimum education, experience, and training standards for applicants ... (5) approve individual applicants to be licensed... (6) deny ... any license ... to be issued ... to any applicant or licensee who fails to satisfy the requirements of this Chapter...." Thus, the respondent contends that it was within its power to determine whether the petitioner had the experience required by G.S. 74C-8(d)(3). The respondent also contends that it was the proper body to determine if the petitioner was qualified and the reviewing court's duty was not "to inject its opinion in place of that of the agency who because of its [the agency's] particular expertise had been entrusted with decision making power."

We note that "[a]n administrative agency is a creature of the statute creating it and has only those powers expressly granted to *151 it or those powers included by necessary implication from the legislative grant of authority." In re Williams, 58 N.C.App. 273, 279, 293 S.E.2d 680, 685 quoting In re Broad and Gales Creek Community Association, 300 N.C. 267, 280, 266 S.E.2d 645, 654 (1980).

While the Board does have the statutory power to grant or deny licenses, it must still act within the scope of its statutory powers. The statutes direct the Board to consider all evidence of experience that is investigative in nature to determine if the applicant had the necessary experience. The Board did in fact recognize that the petitioner worked as a runner but refused to consider that work in satisfaction of the investigative experience requirement. By refusing to consider the runner experience, the Board erroneously disregarded the mandate of G.S. 74C-3(a)(8) to consider all private investigative work. Accordingly, this assignment is overruled.

Next, the respondent argues that the trial court's determination that the Board must consider petitioner's experience as a runner for credit as private investigative work was not supported by competent evidence. The Board argues that it had considered the experience when it found that petitioner worked as a runner from July 1984 through March 1987 and found it to be inadequate. We note, however, that in its reply brief the Board stated that the petitioner's experience as a runner did not qualify as private investigative experience. It is clear that the trial court was correct when it found that the Board did not consider petitioner's experience.

In his proposal for decision, the ALJ relied on King v. Board, 82 N.C.App. 409, 346 S.E.2d 300 (1986) in interpreting G.S. 74C-3(a)(8). In King, applicants were denied a license by the North Carolina State Board of Sanitation Examiners because applicants were not "engaged in a broad range of environmental health functions indicative of a sanitarian." Id. at 412, 346 S.E.2d at 302. However, the statute required only that the applicant be engaged in "one or more of the many diverse elements comprising the field of environmental health." Id., 346 S.E.2d at 302. Our court held that this was erroneous and affirmed the trial court's order of remand. Here, we agree that G.S. 74C-8(d)(3) merely contemplated some form of private investigative activities and did not necessarily require experience in a broad range of those activities. Since as a runner petitioner often had to determine the whereabouts of defendants, those activities constituted private investigative work.

Finally, the respondent assigns as error the trial court's reversal of its decision and remand of the matter back to the Board. The Board contends that the "Superior Court cannot substitute its judgment for that of the agency unless the action is so clearly unreasonable as to amount to oppressive and manifest abuse." State Highway Commission v. Greensboro City Board of Education, 265 N.C. 35, 48, 143 S.E.2d 87, 97 (1965).

G.S. 150B-51(b)(2) and (4) provide that "a reviewing court may reverse the decision of an agency if the substantial rights of petitioners may have been prejudiced because the agency's findings, inferences, conclusions or decisions are: (2) [i]n excess of statutory authority or jurisdiction of the agency; (4) affected by other error of law."

Since the Board's decision was both in excess of its statutory authority and affected by an error of law, the trial court acted properly when it reversed the decision and remanded this matter for further consideration.

In summary, the trial court correctly ruled that the Board acted improperly and erroneously when it refused to consider the petitioner's experience as a runner. Accordingly, we affirm and remand this matter to the superior court for remand to the respondent Board for reconsideration of petitioner's application consistent with this opinion.

Affirmed.

JOHNSON and GREENE, JJ., concur.