An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-525
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2014
GWENDOLYN GILLINS FENNELL
WIMES,
Petitioner,
v. Wake County
No. 12 CVS 16201
NORTH CAROLINA BOARD OF
NURSING,
Respondent.
Appeal by plaintiff from order entered 3 February 2014 by
Judge Robert F. Johnson in Wake County Superior Court. Heard in
the Court of Appeals 8 October 2014.
John M. Kirby, for Petitioner-appellant.
Allen, Pinnix & Nichols, P.A., by M. Jackson Nichols, Anna
Baird Choi, and Catherine E. Lee, for Respondent-appellee.
ELMORE, Judge.
On 3 February 2014, Judge Robert F. Johnson affirmed, in
part; reversed, in part; and modified, in part, the North
Carolina Board of Nursing’s (“the Board”) Final Agency Decision
(“FAD”) reinstating Gwendolyn Gillins Fennell Wimes’s
(“plaintiff”) nursing license on a probationary basis. On
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appeal, plaintiff argues the trial court erred by: (1) affirming
the Board’s imposition of probationary conditions, (2) failing
to find that the FAD was arbitrary and capricious, (3) affirming
the Board’s use of official notice despite the absence of
evidence of the noticed facts in the record or notice to
plaintiff prior to the hearing, and (4) affirming the Board’s
erroneous seventh finding of fact. After careful consideration,
we affirm the trial court’s order.
I. Background
On 17 May 2013, the Board decided to reinstate plaintiff’s
nursing license subject to probationary conditions for a period
of six months following a reinstatement hearing. The Board
issued its FAD after the following evidence was presented: In
February 2005, the Board received a complaint from the staff at
Erwin Rehabilitation Center (“the Center”) concerning plaintiff.
Specifically, the Director of Nursing at the Center learned that
a nurse was “not acting right” and appeared to be “sleeping[,]
standing up at the cart[.]” The Director discovered plaintiff,
a nurse at the Center, leaning on a cart holding a syringe in
her hand with her eyes closed. Plaintiff exhibited indicators
of impairment such as slow movement, slurred speech, and delayed
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response time in answering questions. When questioned,
plaintiff admitted having taken Valium before coming to work.
On 25 July 2005, plaintiff met with Donna Mooney, the
Board’s investigator, to speak about the incident. During the
meeting, plaintiff admitted that she had taken Valium in
connection with a back surgery conducted five and a half years
earlier. She also admitted that “her depression had something
to do with that as well.” The pair also discussed certain
deficiencies in plaintiff’s documentation with respect to
medications she had administered to her patients. Mooney also
observed that throughout the meeting, plaintiff’s eyes appeared
droopy and her speech slow.
Plaintiff declined to participate in the Board’s
alternative program for chemical dependency, and she voluntarily
surrendered her license on 25 July 2005. Mooney told plaintiff
that a voluntary surrender is public information, is considered
a formal disciplinary action, and would be reported as an
impaired-on-duty case. Plaintiff signed a consent-to-surrender
form on 25 July 2005. The form explained that she would have to
provide all evidence requested by the Board before any future
petition for reinstatement would be considered.
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During the next few years, plaintiff sent letters to and
called the Board requesting reinstatement of her license. Each
time, she received a response letter from the Board explaining
the reinstatement process, including the “steps necessary for an
individual to take in order to meet requirements for
reinstatement of the license.” Kathleen Privette, the Board’s
Manager for Drug Monitoring Programs, sent plaintiff at least
four letters explaining what documents plaintiff should submit
in order to be considered for reinstatement.
During this time period, plaintiff participated in a drug
screening program as one of the prerequisites for her
reinstatement. Screening began on 14 November 2011, but
plaintiff failed to call on each of the next three days to
determine if she was to test.
On 12 December 2011, plaintiff tested positive for
Benzodiazepine and metabolites of alcohol. Plaintiff claims she
tested positive due to her consumption of prescription Geritol.
However, since she failed to submit a Prescription
Identification Form in accordance with the drug screening
program guidelines, plaintiff was considered to have failed this
screening.
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On 19 and 27 January 2012, plaintiff tested positive for
codeine, hydrocodone, morphine, nordiazepam, oxazepam, and
temazepam. Once again, because plaintiff did not submit the
Prescription Identification Forms in connection with her
prescriptions prior to testing, she failed these screens.
On 9 February 2012, plaintiff failed to report for another
drug screen and was required to begin a four-month-long drug
screening process. Plaintiff subsequently filed a petition for
reinstatement.
Following a full evidentiary hearing, the Board entered its
FAD on 17 May 2013, ordering that plaintiff’s license would be
reinstated, following completion of a Board approved refresher
course, subject to probationary conditions that would remain in
effect for six months. The conditions included:
1. Must comply with the Board’s Probation
Program. Licensee shall fully comply with
the terms and conditions of the Probation
Program established by the Board and
cooperate with representatives of the Board
in its monitoring and investigation of the
licensee’s compliance with the Program.
2. May not serve in a volunteer position
in any healthcare related licensed position
while under probation conditions.
3. Must notify the Board, in writing
within five (5) days of any change in
address or Employment status. This includes
new employment or probation, suspension,
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termination/resignation from employment.
. . .
4. Must inform prospective supervisor of
probation conditions during the interview
process and share a copy of these conditions
prior to beginning employment.
5. Must have quarterly written performance
reports submitted to the Board from all
employers. The quarterly reports must
involve three (3) consecutive months of
employment in the same facility and must
show an average of sixty four (64) hours
worked per month.
6. Must continue to perform duties in a
safe and competent manner, satisfactory to
the Board.
7. Must notify the Board, by telephone
within 24 hours and, in writing, within five
(5) days of any DUI, misdemeanor/felony
charges. Following final disposition of the
charges, notify the Board, by telephone,
within 24 hours, and in writing, within five
(5) days of the outcome.
8. During the period of probation shall
appear in person at interview/meetings as
directed by the Board.
9. All conditions of this probationary
license shall be completed within twelve
(12) months or this license shall become
void unless modified by the Board.
10. Must submit to random drug screens
showing chain of custody.
11. Must remain alcohol/drug free.
12. Must submit within five (5) days
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healthcare provider medication reports to
the Board when prescription medications are
ordered or refilled.
13. Must submit a statement to the Board in
writing within three (3) days when takes an
over the counter antihistamine,
decongestant, or cough syrup.
Plaintiff appealed the FAD to Wake County Superior Court. The
trial court affirmed the FAD, in part; reversed the FAD, in
part; and modified the FAD, in part. Most notably, the court
changed Probationary Condition No. 9 to provide, in relevant
part:
Licensee will be issued a Probationary
License for six (6) months but not longer
than twelve months to successfully comply
with all conditions. If conditions are not
completed after twelve (12) months and
Licensee desires additional time to fulfill
such conditions, Licensee may request to
appear at Licensure Review Panel (LRP) to
request an extension of probationary
conditions in order to complete the
conditions. If Licensee does not request to
appear before LPR, the license will be
suspended in accordance with the Order. The
probationary period may also be modified by
mutual consent of parties.
II. Analysis
A. Probationary Conditions
Plaintiff first argues that the trial court erred in
affirming the probationary conditions imposed by the Board
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because those conditions were in excess of its statutory
authority. See N.C. Gen. Stat. § 90-171.37(1)–(8) (2013).
Specifically, she claims that before the Board could place
restrictions on her nursing license, it was required to make one
of eight findings (or justifications) set out in N.C. Gen. Stat.
§ 90-171.37. See id. In this case, plaintiff claims the FAD
does not contain the required findings. As such, she argues the
Board erroneously imposed conditions on her nursing license. We
disagree.
In examining the Superior Court’s review of an agency’s
decision, this Court must inspect the court’s order and ask: (1)
“whether the trial court exercised the appropriate scope of
review[,]” and, if so, (2) “whether the court did so properly.”
Amanini v. N. Carolina Dep't of Human Res., N.C. Special Care
Ctr., 114 N.C. App. 668, 675, 443 S.E.2d 114, 118–19 (1994). In
reviewing an agency’s decision, the duty of the Superior Court
and this Court “is not to make findings of fact, but rather to
apply the appropriate standard of review to the findings and
conclusions of the underlying tribunal.” Brunson v. Tatum, 196
N.C. App. 480, 484, 675 S.E.2d 97, 100 (2009) (citation and
quotation marks omitted). On appeal, questions of law receive
de novo review, while questions of fact are reviewed under the
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whole record test. Early v. Cnty. of Durham, Dep’t of Soc.
Servs., 193 N.C. App. 334, 341, 667 S.E.2d 512, 519 (2008).
Assuming arguendo that N.C. Gen. Stat. § 90-171.37 governs,
as plaintiff contends, the trial court did not err by affirming
the Board’s decision because the Board made the required
findings.
This Court has recognized a lack of case law pertaining to
N.C. Gen. Stat. § 90-171.37. See Cafiero v. N. Carolina Bd. of
Nursing, 102 N.C. App. 610, 619, 403 S.E.2d 582, 587 (1991)
(“Petitioner cites no case construing § 90-171.37, and we are
aware of none.”). Therefore, in interpreting the statute, the
plain language of the statute and the intent of the legislature
controls. See In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371
(1978).
The precise language of N.C. Gen. Stat. § 90-171.37 does
not expressly require specific findings of fact, but rather
broadly specifies eight grounds on which the Board may refuse to
issue a license or impose probationary conditions upon a
licensee:
[T]he Board shall have the power and
authority to . . . invoke other such
disciplinary measures, censure, or probative
terms against a licensee as it deems fit and
proper; in any instance or instances in
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which the Board is satisfied that the
applicant or licensee:
(1) Has given false information or has
withheld material information from the
Board in procuring or attempting to
procure a license to practice nursing.
(2) Has been convicted of or pleaded guilty
or nolo contendere to any crime which
indicates that the nurse is unfit or
incompetent to practice nursing or that
the nurse has deceived or defrauded the
public.
(3) Has a mental or physical disability or
uses any drug to a degree that
interferes with his or her fitness to
practice nursing.
(4) Engages in conduct that endangers the
public health.
(5) Is unfit or incompetent to practice
nursing by reason of deliberate or
negligent acts or omissions regardless
of whether actual injury to the patient
is established.
(6) Engages in conduct that deceives,
defrauds, or harms the public in the
course of professional activities or
services.
(7) Has violated any provision of this
Article.
(8) Has willfully violated any rules
enacted by the Board.
N.C. Gen. Stat. § 90-171.37 (emphasis added).
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While the Board in this case neither utilized the precise
language of the statute in its FAD nor labeled its statements
“findings of fact,” it did reference a concern for public
safety, as well as the enumerated grounds of drug use and public
health as the justification for imposing probationary conditions
in the following findings:
4. It was reported that on January 14, 2005,
[plaintiff] was observed “sleeping standing
up at the cart” and was described as “not
acting right.” The Director of Nursing
specifically described her as standing in
front of the medication cart with a syringe
in her hand, elbows propped on the cart with
her eyes closed. She was described as being
slow to respond verbally and physically, her
words were slurred, very slow and
deliberate, all behaviors that could be
construed to demonstrate impairment.
. . .
25. At the time of surrender of her license,
[plaintiff] was alleged to be impaired on
duty. She admitted to consuming a Valium, a
drug that could impair her ability to
practice nursing prior to work. [Plaintiff]
admitted that she still has a valid
prescription for this medication. It is
reasonable, prudent and consistent with
ensuring that [plaintiff] is a safe
practitioner to require she submit to random
urine drug screens upon re-entry into the
practice of nursing.
26. Without these safeguards in place, the
Board cannot fulfill its mandate to ensure
that [plaintiff] is safe and competent to
practice.
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Taken together, these findings demonstrate that plaintiff
used a drug to a degree that interfered with her fitness to
practice nursing, and engaged in conduct that endangered the
public health, such that probationary conditions were
appropriate pursuant to N.C. Gen. Stat. § 90-171.37. See id.
Because the Board’s findings of fact satisfy the
requirements of N.C. Gen. Stat. § 90-171.37, the trial court did
not err by affirming the Board’s FAD with respect to this issue.
B. Arbitrary and Capricious
Next, plaintiff argues that the probationary conditions
imposed by the Board are arbitrary and capricious as a matter of
law. Specifically, plaintiff asserts there were no grounds for
the imposition of conditions because she was never disciplined
for misconduct and that the conditions imposed were overly
burdensome. We disagree.
In determining whether the Board’s action was arbitrary and
capricious, this Court must apply “the whole record test.” See
Early, supra. “When utilizing the whole record test, . . . the
reviewing court must examine all competent evidence (the whole
record) in order to determine whether the agency decision is
supported by substantial evidence.” Mann Media, Inc. v.
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Randolph Cnty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17
(2002) (quotation marks omitted). Substantial evidence is any
relevant evidence which is reasonably adequate to support a
conclusion. Lackey v. N.C. Dep’t of Human Res., 306 N.C. 231,
238, 293 S.E.2d 171, 176 (1982). “The ‘whole record’ test does
not allow the reviewing court to replace the Board’s judgment as
between two reasonably conflicting views, even though the court
could justifiably have reached a different result had the matter
been before it de novo.” Thompson v. Wake Cnty. Bd. of Educ.,
292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).
In determining whether an agency’s action was arbitrary and
capricious, we have previously held the test is whether the
action was “patently in bad faith, or whimsical in the sense
that they indicate a lack of fair and careful consideration or
fail to indicate any course of reasoning and the exercise of
judgment[.]” Lewis v. N. Carolina Dep’t of Human Res., 92 N.C.
App. 737, 740, 375 S.E.2d 713, 714 (1989) (citations and
quotation marks omitted).
In this case, to ensure she was fit to practice, the Board
conditioned plaintiff’s relicensing on the taking of a refresher
course and the maintenance of a probationary license with
conditions placed on it for a term of six months. The Board
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imposed these conditions based on evidence that in 2005
plaintiff took Valium prior to her shift, acknowledged overusing
the substance in connection with her depression, and lacked
complete documentation of medication dispensed during her shift.
Furthermore, the FAD contained findings that, while seeking
reinstatement of her license, plaintiff did not comply with the
Board’s requirements when she failed to appear for drug testing,
failed to submit requisite Prescription Identification Forms in
a timely manner, and tested positive for banned substances.
Evidence of plaintiff’s conduct in 2005 and her subsequent drug
screening failures amount to “substantial evidence” supporting
the imposition of probationary conditions on her license.
In light of plaintiff’s conduct, the probationary measures
are not “patently in bad faith,” lacking a rational connection
to the Board’s concerns, or unduly burdensome because they
directly further the Board’s objective of ensuring plaintiff can
safely and competently practice as a nurse over a reasonable
period of time. Id. Additionally, the trial court adjusted the
probationary period to plaintiff’s benefit, extending the window
of time for completing the conditions to twelve months. As
such, the Board’s FAD imposing probationary conditions upon
plaintiff’s license was not arbitrary and capricious.
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Accordingly, we hold that the trial court did not err by
affirming, in part, and modifying, in part the FAD on this
issue.
C. Official Notice
Next, plaintiff argues the Board improperly took “official
notice” that “Valium is a Scheduled [sic] IV Controlled
Substance . . . that may impair an individual’s ability to
render safe and competent care.” While plaintiff does not
dispute the Board’s authority to take official notice, she
contends that no evidence of the supposed effect of Valium was
presented to the Board, and therefore, such notice was
unsupported by the evidence. Plaintiff also claims she was
denied the “earliest practicable” notice when the Board decided
to mention the effects of Valium in its order. We disagree.
i. No Evidence in the Record
Plaintiff argues the noticed facts concerning Valium are
unsupported by evidence in the record. Even if this is true, it
does not bar the Board from taking official notice of the fact
that Valium may impair a nurse’s ability to render safe,
competent care to patients.
Pursuant to N.C. Gen. Stat. § 150B-41(d) (2013),
“[o]fficial notice may be taken [by an agency] of all facts of
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which judicial notice may be taken and of other facts within the
specialized knowledge of the agency. . . . An agency may use
its experience, technical competence, and specialized knowledge
in the evaluation of evidence presented to it.” The Board’s
specialized knowledge “includes knowledge of the standard of
care for nurses[,]” and thus, “[t]here is no reason it should
not be allowed to apply this standard if no evidence of it is
introduced.” Leahy v. N. Carolina Bd. of Nursing, 346 N.C. 775,
781, 488 S.E.2d 245, 248 (1997).
In the case at bar, the Board’s knowledge of the relevant
standard of care coupled with the availability of sufficient
resources to permit it to quickly determine the possible
impairing effect of Valium on an individual allowed the Board to
take official notice without evidence in the record relating to
Valium. See N.C. Gen. Stat. 8C-1, Rule 201 (2013).
ii. Earliest Practicable Notice
Next, plaintiff argues that the Board erred by failing to
provide notice of the noticed fact before the time of the
hearing. We disagree.
N.C. Gen. Stat. § 150B-41(d) simply requires the Board to
inform the parties of the noticed fact “at the earliest
practicable time.” N.C. Gen. Stat. § 150B-41(d). While we can
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find no case law defining this term within the context of an
administrative hearing, the plain language of the statute does
not require prior notice before a hearing. The statute merely
requires notice as early as is practicable, depending on the
circumstances of each case. Id.
Here, there is no evidence in the record that either party
requested that the Board take official notice that Valium may
impair a nurse’s ability to provide appropriate and safe care to
a patient. As such, the earliest practicable time the Board
could have taken official notice was when it evaluated the
evidence presented during the hearing. As such, plaintiff could
not have received notice before the hearing. Thus, the Board
complied with its statutory obligation to provide the earliest
practicable notice. As such, the trial court did not err by
affirming the FAD with respect to this issue.
D. Seventh Finding of Fact
Finally, plaintiff argues the FAD’s seventh finding of fact
is unsupported by substantial competent evidence. The finding
of fact provided:
Once questions were raised about
[plaintiff’s] behavior, a limited
accountability audit was conducted on her
sign-outs of Valium, Percocet and Oxycodone.
Discrepancies were noted in her sign-outs of
Percocet. [Plaintiff] during the hearing
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admitted that she was shown the Medication
Administration Records (MAR) during the
investigation in the facility, and that she
did make a medication error involving the
Percocet.
Specifically, plaintiff argues there was no testimony
before the Board regarding the audit or discrepancies within her
paperwork. We disagree.
“[W]here the findings of fact of an administrative agency
are supported by substantial competent evidence in view of the
entire record, they are binding on the reviewing court[.]” N.
Carolina Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649,
663, 599 S.E.2d 888, 897 (2004).
During the reinstatement hearing, Mooney testified:
I also showed [plaintiff] copies of her
documentation, which had some discrepancies
related to the documentation of her
medications during her shift, and she
finally, after looking at the documentation,
admitted that there was some documentation
lacking . . . [and] that she was taught that
if the medication wasn’t documented, then it
was not done; it had not been given.
Plaintiff also stated that, “[i]f I made a medication error, and
[the Board] said that I made a medication error, I didn’t sign
the MAR, then I’m willing to take the medication error . . .
course, because they did not write me and tell me anything other
than the fact that I made a medication error.”
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Taken together, such testimony provides substantial
competent evidence that an audit occurred and there were
discrepancies within plaintiff’s documentation. Accordingly,
the trial court did not err by affirming the FAD with respect to
this issue.
III. Conclusion
In sum, we conclude that the Board’s FAD was not arbitrary
and capricious. The Board imposed lawful probationary
conditions against plaintiff’s license and properly took
official notice that Valium can impair a nurse’s ability to
provide safe and competent care. Moreover, the Board’s seventh
finding of fact was supported by substantial and competent
evidence. Accordingly, the trial court did not err by
affirming, in part, modifying, in part, and reversing, in part,
the FAD.
Affirmed.
Judges BRYANT and ERVIN concur.
Report per Rule 30(e).