Appeal by petitioner from judgment entered 27 November 2006 by
Judge James L. Baker, Jr. in Buncombe County Superior Court. Heard
in the Court of Appeals 11 October 2007.
Long, Parker, Warren & Jones, P.A., by Robert B. Long, Jr.,
for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryne E. Hathcock, for respondent-appellee.
BRYANT, Judge.
Kenneth Curtis Edwards (petitioner) appeals from a judgment
entered 27 November 2006 dismissing petitioner's petition with
prejudice and affirming the revocation of petitioner's salesman
license by the North Carolina Department of Motor Vehicles
(respondent). For the reasons stated herein, we affirm the
judgment of the trial court.
Facts and Procedural History
In 1996, petitioner opened up a business, Ken Edwards Auto
Sales, selling used cars and trucks in Asheville, North Carolina. In late 2001, petitioner's business began to have financial
difficulties which continued through 5 May 2003, when petitioner
declared bankruptcy, closed his business, voluntarily surrendered
his Motor Vehicle Dealers' License, and began work as a motor
vehicle salesman for his brother.
In early 2003, the Division of Motor Vehicles License and
Theft Bureau commenced an investigation into the petitioner's
dealership. The purpose of the investigation was to determine why
consumers who had purchased vehicles from the dealership were not
receiving their car titles and why finance companies had not been
paid for the sold vehicles. At the culmination of the
investigation regarding Ken Edwards Auto Sales, it was determined
that petitioner had completed lost title applications with
notarized signatures of previous owners of four vehicles sold by
Ken Edwards Auto Sales in order to obtain clear titles for the new
purchasers without actually contacting the previous owners.
In December 2003, petitioner was indicted in Buncombe County
Superior Court with four felony counts of taking a fraudulent
notary verification for acknowledgment, knowing the signatures to
be false, pursuant to N.C. Gen. Stat. § 10A-12(c)
(See footnote 1)
; four felony
counts of obtaining property by false pretenses; and four felony
counts of title fraud. On 4 February 2004, petitioner pleaded
guilty to the four felony counts of taking a fraudulent notary
verification for acknowledgment, and the remaining eight felonycriminal charges were dismissed in their entirety. The trial court
placed petitioner on supervised probation and ordered petitioner to
make restitution in the amount of $47,319.64 to three separate
finance companies.
Subsequent to petitioner's guilty pleas, the Buncombe County
District Attorney's Office notified respondent's agents of the
felony notary convictions. On 14 March 2005, respondent sent
petitioner a Notice of Hearing and Order to Show Cause why
petitioner's Motor Vehicle Salesman License should not be revoked
for his felony conviction involving moral turpitude. After a
hearing held on 13 April 2005, before a Division of Motor Vehicles
hearing officer, a Decision and Order was entered that the Motor
Vehicle Salesman License issued to petitioner be revoked for a
period of five years and a civil penalty of $250.00 be assessed
against petitioner.
Petitioner filed a Petition for Judicial Review with the
Buncombe County Superior Court on 8 June 2005, and the next day the
Court entered an Order staying operation of the Decision and Order
pending the outcome of judicial review sought by petitioner.
Respondent filed its response on 22 July 2005, and the matter came
on for hearing at the 28 August 2006 Civil Session of the Buncombe
County Superior Court before the Honorable James L. Baker, Judge
presiding. The Superior Court entered a judgment on 27 November
2006, affirming the decision to revoke petitioner's Motor Vehicle
Salesman License and ordering the Petition be dismissed with
prejudice. Petitioner appeals.
_________________________
Petitioner raises the issues of whether the trial court erred:
(I) in concluding the petitioner's acts involving improper
notarizations in violation of N.C. Gen. Stat. § 10A-12(c) were
felonies involving moral turpitude; (II) in concluding the decision
of respondent was not in violation of petitioner's constitutional
due process rights, was not in excess of statutory authority, and
was not made upon unlawful procedure; and (III) in entering the
judgment dismissing petitioner's petition with prejudice and
affirming the revocation of petitioner's salesman license.
Standard of Review
Appeals from final administrative decisions of North Carolina
State Agencies are subject to judicial review under Article 4 of
Chapter 150B of the North Carolina General Statutes. N.C. Gen.
Stat. § 150B-43 (2005). “The standard of review for the superior
court of a final agency decision depends upon the particular issues
presented on appeal.”
Dew v. State ex rel. North Carolina DMV, 127
N.C. App. 309, 310, 488 S.E.2d 836, 837 (1997) (citations and
quotations omitted). Pursuant to Article 4 of Chapter 150B,
[A]n agency's final decision may be reversed
or modified only if the reviewing court
determines that the petitioner's substantial
rights may have been prejudiced because the
agency's findings, inferences, conclusions, or
decisions are:
(1) In violation of constitutional
provisions;
(2) In excess of the statutory
authority or jurisdiction of
the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial
evidence admissible . . . in
view of the entire record as
submitted; or
(6) Arbitrary[,] capricious[, or an
abuse of discretion].
N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649,
658-59, 599 S.E.2d 888, 894 (2004);
see also N.C. Gen. Stat. §
150B-51(b) (2005).
The first four grounds for reversing or modifying an agency's
decision are considered “law based inquiries” and receive
de novo
review.
Carroll, 358 N.C. at 659, 599 S.E.2d at 894. “Under the
de novo standard of review, the trial court considers the matter[s]
anew and freely substitutes its own judgment for the agency's.”
Id.
at 660, 599 S.E.2d at 895 (citations and quotations omitted). The
final two grounds for reversing or modifying an agency's decision
are characterized as “fact-based” inquiries and are reviewed under
the whole-record test.
Id. at 659, 599 S.E.2d at 894. Under the
whole-record test, the reviewing court must “examine all the record
evidence--that which detracts from the agency's findings and
conclusions as well as that which tends to support them--to
determine whether there is substantial evidence to justify the
agency's decision.”
Watkins v. N.C. State Bd. of Dental Exam'rs,
358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004) (citation omitted).
Substantial evidence is “relevant evidence a reasonable mind mightaccept as adequate to support a conclusion.”
Id. (citation and
quotations omitted).
I
Petitioner first argues the Superior court erred in concluding
petitioner's acts involving improper notarizations in violation of
N.C. Gen. Stat. § 10A-12(c) were felonies involving moral
turpitude. We disagree.
At the time of petitioner's convictions, N.C. Gen. Stat. §
10A-12(c) provided that, “[a]ny notary who takes an acknowledgment
or performs a verification or proof knowing it is false or
fraudulent is guilty of a Class I felony.” N.C. Gen. Stat. § 10A-
12(c) (2003). It is well established that crimes involving moral
turpitude are characterized by “'acts of baseness, vileness, or
depravity in the private and social duties that a man owes to his
fellowman or to society in general.'”
Dew, 127 N.C. App. at 311,
488 S.E.2d at 837 (quoting
Jones v. Brinkley, 174 N.C. 23, 25, 93
S.E. 372, 373 (1917)). It is similarly well established that
offenses involving fraud and theft may involve moral turpitude.
Ledford v. Emerson, 143 N.C. 527, 531, 55 S.E. 969, 970 (1906)
(“Fraud is an offense involving moral turpitude[.]”);
State v.
Shelly, 176 N.C. App. 575, 584, 627 S.E.2d 287, 295 (2006) (holding
“felonious larceny and credit card fraud, [are] crimes which have
long been recognized to implicate dishonesty, deceit and moral
turpitude.”).
Here, petitioner, subsequent to his guilty pleas, was
convicted of four counts of felonious false or fraudulentverification by a notary pursuant to N.C.G.S. § 10A-12(c).
Petitioner's offenses caused three separate finance companies to
lose $47,319.64, which defendant was ordered to pay in restitution.
Given the fraudulent nature of petitioner's acts, the Superior
Court did not err in holding petitioner's felonies involved moral
turpitude. This assignment of error is overruled.
II
Petitioner next argues the trial court erred in concluding the
decision of respondent was not in violation of petitioner's
constitutional due process rights, was not in excess of statutory
authority, and was not made upon unlawful procedure. Petitioner
contends that because the Notice of Hearing only informed
petitioner to show cause why his Motor Vehicle Salesman License
should not be revoked for the convictions under N.C.G.S. § 10A-
12(c) as being “felonies involving moral turpitude[,]” respondent
committed reversible error by finding that petitioner's license
could be revoked because petitioner “secured funds by notarizing
fraudulent signatures on title documents”. We disagree.
However, even if petitioner's contention is correct,
petitioner was not prejudiced by this error as respondent was
within its rights to revoke petitioner's Motor Vehicle Salesman
License. Respondent “may deny, suspend, or revoke a license issued
under [the Motor Vehicle Dealers and Manufacturers Licensing Law]
for
any one or more of the following grounds:
. . . (9) . . . being convicted of a felony involving moral
turpitude under the laws of this State, another state, or
the United States.”
N.C. Gen. Stat. § 20-294 (2005) (emphasis added). Respondent
revoked petitioner's Motor Vehicle Salesman License pursuant to a
Decision and Order in which it was found that sufficient evidence
existed to sustain that petitioner violated N.C.G.S. § 20-294(9)
based upon petitioner's guilty pleas to “four felony counts of
notary fraud” and that petitioner “secured funds by notarizing
fraudulent signatures on title documents.”
As discussed in Issue I,
supra, petitioner's convictions of
four counts of felonious false or fraudulent verification by a
notary pursuant to N.C.G.S. § 10A-12(c) involved moral turpitude.
Petitioner was given notice to show cause as to why his Motor
Vehicle Salesman License should not be revoked pursuant to this
charge. Respondent's revocation of petitioner's Motor Vehicle
Salesman License is independently supported by the finding that,
pursuant to his guilty pleas, petitioner's convictions involved
moral turpitude. Thus, petitioner could not have been prejudiced
by the additional finding that he “secured funds by notarizing
fraudulent signatures on title documents.” This assignment of
error is overruled.
III
Petitioner lastly argues the trial court erred in entering the
judgment dismissing petitioner's petition with prejudice and
affirming the revocation of petitioner's salesman license becauserespondent's decision to revoke petitioner's Motor Vehicle Salesman
License was arbitrary and capricious. We disagree.
The North Carolina Legislature adopted our Motor Vehicle
Dealers and Manufacturers Licensing Law in part “to prevent frauds,
impositions and other abuses upon its citizens and to protect and
preserve the investments and properties of the citizens of this
State.” N.C. Gen. Stat. § 20-285 (2005). Respondent has been
given the authority to revoke licenses issued under this Law, and
petitioner's admitted acts of committing four offenses of felonious
false or fraudulent verification by a notary constitute sufficient
grounds to revoke his Motor Vehicle Salesman License. Defendant's
remorse for his actions and subsequent payment of restitution
pursuant to his probationary sentence do not negate that he
committed criminal offenses involving moral turpitude. Looking at
the whole record of evidence before the Court, there is substantial
evidence to justify respondent's decision to revoke petitioner's
Motor Vehicle Salesman License and we cannot say respondent's
decision was arbitrary or capricious. This assignment of error is
overruled.
Affirmed.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
Footnote: 1