THADDEUS D. WIENER,
Petitioner,
v
.
Onslow County
No. 03 CVS 2456
NORTH CAROLINA SUBSTANCE
ABUSE PROFESSIONAL
CERTIFICATION BOARD,
Respondent.
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.
LEVINSON, Judge.
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 alcoholcounseling, 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 dependencyand 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 andprotect 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 orrevoked. 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).
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