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An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 July 2012
PAULA SPENCER, LPN,
No. 11 CVS 5364
NORTH CAROLINA BOARD OF NURSING,
2011 by Judge Gary E. Trawick in Wake County Superior Court.
Heard in the Court of Appeals 8 March 2012.
Patrice Walker for the petitioner-appellant.
J.W. Bryant, Law Firm, P.L.L.C. by John Walter Bryant &
Amber Ivie Hayles for the respondent-appellee.
The superior court did not err in affirming Board’s Final
Petitioner’s license as a nurse.
I. Factual and Procedural History
Paula Spencer (petitioner) is a Licensed Practical Nurse.
The North Carolina Board of Nursing (Board) was established by
-2statute to oversee the practice of nursing.
N.C. Gen. Stat.
§ 90-171.21 (2011).
petitioner stating that she had been convicted of two driving
while impaired (DWI) charges in a year and that this indicated
nursing or that you may have violated the Nursing Practice Act.”
parties stipulated to petitioner’s two DWI convictions within a
one year period. On 25 February 2011, Board entered a Final
Decision and Order. This order made the following findings of
5. Ms. Spencer was convicted of the first
DWI on March 3, 2009, in Randolph County.
She was convicted of the second DWI on
February 8, 2010, in Guilford County. Ms.
Spencer received two (2) DWI’s within one
(1) year. As part of the court sanction, Ms.
Spencer was placed on supervised probation
for two (2) years.
6. Ms. Spencer was an in-patient and
received treatment for substance abuse from
the Watershed Treatment Facility in Delray
Beach, Florida from October 8, 2009 through
November 24, 2009. Following discharge, she
continued her treatment with Recovery and
Renewal Intensive Outpatient Program in High
Point, North Carolina from November 27, 2009
through January 18, 2010. Ms. Spencer was
diagnosed with chemical dependency.
probation program for a minimum of one year.
On 4 April 2011, petitioner filed a Petition for Judicial
Review in the Superior Court of Wake County. On 13 September
Decision and Order of Board.
II. Standard of Review
In reviewing an appeal from a trial
court’s order affirming an agency’s final
decision, this Court 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). The proper
standard of review for the trial court to
apply “in reviewing an agency decision
depends upon the nature of the alleged
error.” Id. Where an appellant alleges the
agency’s decision was affected by errors of
law, “de novo” review is required; however,
where an appellant questions whether the
substantial evidence or was arbitrary and
capricious, the trial court must employ the
“whole record” test. Walker v. N.C. Dept. of
Human Resources, 100 N.C. App. 498, 502, 397
S.E.2d 350, 354 (1990), disc. review denied,
328 N.C. 98, 402 S.E.2d 430 (1991); see also
N.C. Gen. Stat. §§ 150B-51(b)(4)-(6) (1999).
-4Dixie Lumber Co. of Cherryville v. N.C. Dep’t of Env’t, Health &
attacked Board’s jurisdiction, attacked the sufficiency of the
evidence presented to Board, attacked finding of fact 8 and
conclusions of law 1, 5, 6, 7, and 8.
Board’s finding of fact 8 reads as follows:
The Board takes official notice that with
it’s [sic] mandate to protect the public,
the Board cannot fulfill the mandate if a
known substance abuser is not appropriately
participation in the Alternative Program;
and therefore, the Board cannot assure she
is safe and competent to practice nursing
without monitoring her nursing practice.
validity of Board’s conclusions in the first sentence of finding
8 and the second portion of the second sentence. It did not
challenge the finding contained in the first part of the second
challenged in the petition are in reality conclusions of law and
treat them as such. See, e.g., Sheffer v. Rardin, ___ N.C. App.
___, ___, 704 S.E.2d 32, 35 (2010).
standard of review for the superior court for all issues in this
matter was de novo. This was the standard of review that was
applied by the superior court in this case.
alleged errors contained in Board’s Final Decision, these are
not properly before this Court. Our review is limited to the
final judgment of the superior court. N.C. Gen. Stat. § 150B-52
(2011). See also Craven Reg’l Med. Auth. v. N.C. Dep’t of Health
and Human Servs., 176 N.C. App. 46, 59, 625 S.E.2d 837, 845
(2006). Petitioner’s arguments seeking direct review of Board’s
Arguments I, II, VI, VII, and VIII contained in petitioner’s
III. Petitioner’s Substance Abuse
superior court erred in its findings 17 and 181 because they were
Certain portions of the superior court’s order are designated
as “findings of fact.” These “findings” consist of legal
conclusions and repetition of findings contained in Board’s
Final Decision and Order. As noted above, the proper standard of
review for the superior court was de novo. We treat these
explaining the reasoning of the court, but not as true “findings
jurisdiction over nurses only when they allow substance abuse to
impact their nursing practice.” We disagree.
Findings 17 and 18 of the superior court’s order read as
17. The NCBN cannot fulfill its mandate to
protect the public if a known, and as in
this case, an admitted substance abuser is
not appropriately monitored.
participate in the Alternative Program where
she would have been monitored, the NCBN
cannot best assure the Petitioner has not
relapsed and that she is safe and competent
to practice nursing.
These findings are clearly based upon finding of fact 8
contained in Board’s Final Decision and Order, as set forth
above. As previously noted, petitioner failed to contest the
factual portions of finding of fact 8 of Board’s order in her
challenge to Board’s authority to discipline nurses who have a
superior court considered those to be established facts, as does
this Court for purposes of our analysis.
substance abuse problem, there was no evidence or findings that
this problem affected her performance of her work duties, and
that Board was without authority to discipline her by placing
her on probation.
The superior court held that
N.C.G.S. § 90-171.37 authorizes the NCBN to
discipline a nurse who has been convicted of
or pleaded guilty to any crime which
indicates that the nurse is unfit or
incompetent to practice nursing, engages in
conduct that endangers the public health,
and/or has violated an [sic] rules enacted
by the Board. See N.C.G.S. § 90-171.37(2),
(4), (7), and (8).
N.C. Gen. Stat. § 90-171.23(b)(3) authorizes Board to “[a]dopt,
amend or repeal rules and regulations as may be necessary to
carry out the provisions of this Article.” N.C. Gen. Stat. § 90171.23(b)(3)
Article 21 of the North Carolina Administrative Code. “Behaviors
and activities which may result in disciplinary action by the
Board” include drug or alcohol abuse or “commission of any crime
which bears on a licensee’s fitness to practice nursing as set
out in G.S. 90-171.48(a)(2).” 21 N.C.A.C. 36.0217(c) (2010).
N.C. Gen. Stat. § 90-171.48(a)(2) contains a long list of
-8violation of G.S. 20-138.1 through G.S. 20-138.5.” N.C. Gen.
Stat. § 90-171.48(a)(2) (2011).
Under 21 N.C.A.C. 36.0217(c), the drug or alcohol abuse is
not restricted to abuse that occurs in the actual course of
impaired driving, under the regulations, are deemed to bear on
petitioner’s fitness to practice nursing.
Petitioner’s argument is without merit.
IV. Clear and Convincing Evidence
We first note that the critical factual findings of Board
in findings of fact 5 and 6 were unchallenged in the petition
for judicial review, and are binding on appeal. The superior
court concluded as follows:
Facts in an Administrative Proceeding shall
evidence. The substantial evidence should be
both clear and convincing and should be such
that would lead a reasonable mind to a
conclusion that a violation of the Nursing
Practice Act or pertinent administrative
regulations have occurred.
-9The superior court went on to hold that the Board correctly
determined that petitioner had violated a number of statutory
and regulatory provisions and was properly disciplined by Board.
Petitioner’s argument is based upon a parsing of the words
contained in the superior court’s conclusion number 4, set forth
above. She contends that “clear and convincing” evidence is a
higher standard than evidence that “would lead a reasonable mind
to a conclusion.” These clauses are joined by the conjunction
“and.” We hold that the second clause in the sentence did not
required in this case.
This argument is without merit.
V. Sufficiency of Superior Court’s Conclusions
In her fifth argument, petitioner contends that conclusions
of law 5, 6, and 7 of the superior court do not support its
affirmation of the decision of Board. We disagree.
These three conclusions held that petitioner violated N.C.
Gen. Stat. § 90-171.37(7) and (8) and 21 N.C.A.C. 36.0217(c)(1).
In addition to revoking and suspending licenses, Board has the
authority to “invoke other such disciplinary measures, censure,
-10satisfied that the applicant or licensee: . . . [h]as willfully
violated any rules enacted by the Board.” N.C. Gen. Stat. § 90171.37 (2011). The conclusions of law holding that petitioner
violated provisions of N.C. Gen. Stat. § 90-171.37 support its
affirmation of Board’s decision.
This argument is without merit.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).