Winkler v. N.C. State Bd. of Plumbing
Winkler v. N.C. State Bd. of Plumbing
Opinion
*106 The North Carolina State Board of Examiners of Plumbing, Heating & Fire Sprinkler Contractors (the "Board") appeals from an order awarding Dale Thomas Winkler d/b/a DJ's Heating Service ("Winkler")
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$29,347.47 in attorneys' fees and costs pursuant to
Facts and Procedural History
This is the second appeal to this Court in this case. Facts relevant to this appeal follow, but additional procedural and factual history of the litigation is included in our decision in the prior appeal.
See
Winkler v. State Bd. of Examiners of Plumbing, Heating & Fire Sprinklers Contractors
, --- N.C. App. ----,
In April 2013, the management staff at the Best Western Hotel in Boone, North Carolina, asked Winkler, who held a Heating Group 3 Class II (H-3-II) residential license, to examine the pool heater located at the hotel. Although Winkler was licensed only to work on detached residential HVAC units, he took the job. After examining the pool heater, Winkler determined that it was not working because the gas supply had been turned off. He then located the fuel supply in the pool equipment room, turned it on, and the pool heater again worked.
Days later, on 16 April 2013, two guests died in Room 225 of the hotel, which was above the pool equipment room. Hotel management closed the room until a gas fireplace in the room could be checked for leaks. At the time, the cause of the guests' death had yet to be determined.
Hotel management hired Winkler to examine the fireplace in Room 225 and the ventilation system for the pool heater. Winkler "soaped" the gas lines on both the fireplace and the pool heater and determined there were no gas leaks. Winkler did not, however, check for carbon monoxide, because he did not have the proper equipment. Winkler told hotel management that the ventilation system seemed to be working.
Following Winkler's inspections, hotel staff reopened Room 225 in late May 2013. On 8 June 2013, a third guest died in the room and a fourth was injured.
After the third guest died, autopsies and toxicology reports for the first two guests were completed and indicated that they had died from lethal concentrations of carbon monoxide. Toxicology reports for the third and fourth guests also indicated excessive levels of carbon monoxide in their blood.
*108 The Board undertook its own investigation after issuance of the toxicology reports. Board investigators determined that carbon monoxide from the pool heater ventilation system could enter Room 225 through openings near the fireplace logs and an HVAC unit. The investigators also observed corrosion over a substantial portion of the ventilation pipe holes for the pool heater. In connection with the Board's investigation, Winkler signed an affidavit swearing that he had never performed work for which he was not licensed.
*107 Winkler ultimately admitted to the Board in a disciplinary licensing proceeding that he had installed a replacement HVAC system in the hotel lobby, performing work beyond his license qualification. The Board concluded that Winkler had engaged in misconduct in violation of his license and suspended his license for one year. The Board also required Winkler to enroll in several courses to remedy the deficiencies in his knowledge.
Winkler appealed the Board's decision to the Watauga County Superior Court. Following a hearing, the court affirmed the Board's decision in its entirety. Winkler then appealed to this Court on the ground that the Board lacked jurisdiction to discipline Winkler for his incompetence in working on the pool heater. He did not challenge the discipline for his misconduct related to the HVAC system in the hotel lobby.
On 20 September 2016, this Court held that the Board did not have jurisdiction to discipline Winkler for the pool heater inspection.
Winkler I
, --- N.C. App. at ----,
The Board reheard the matter, and, on 19 December 2016, issued a revised disciplinary order placing Winkler on probation for 12 months and requiring him to complete coursework and other conditions of probation.
On 24 October 2016, Winkler filed a motion for attorneys' fees and costs in Watauga County Superior Court. Winkler's motion sought fees pursuant to
*109 The Board timely appealed and moved to stay the order awarding attorneys' fees pending the resolution of this appeal. The motion to stay was granted on 7 June 2017.
Analysis
The Board argues that the plain language of
1. Standard of Review
We review the trial court's interpretation of
2. Statutory Construction
Section 6-19.1 of the North Carolina General Statutes governs the trial court's ability to award attorneys' fees for a prevailing party in certain civil actions. The relevant portion of the statute provides as follows:
(a) In any civil action, other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board , brought by the State or brought by a party who is contesting State action pursuant to [N.C. Gen. Stat. §] 150B-43 or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney's fees, including attorney's fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:
(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and
(2) The court finds that there are no special circumstances that would make the award of attorney's fees unjust. ...
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The Board argues that the phrase "other than" immediately following the phrase "any civil action" removes adjudications for establishing or fixing a rate and disciplinary actions by licensing boards from the overarching category of "any civil action" provided for by the statute. 1 This interpretation would result in the following reading: " In any civil action- other than an adjudication for the purpose of establishing or fixing a rate , or a disciplinary action by a licensing board - brought by the State ...." The effect of this interpretation is to exclude from the statute both adjudications for the purpose of establishing or fixing a rate and disciplinary actions by licensing boards.
Winkler argues, on the other hand, that the phrase "a disciplinary action by a licensing board" is a second classification, in addition to "any civil action," to which the statute applies. This interpretation leads to the following reading: " In any civil action - other than an adjudication for the purpose of establishing or fixing a rate - or a disciplinary action by a licensing board , brought by the State ...." The effect of this interpretation is to include disciplinary actions by licensing boards within the purview of the statute, while excluding only adjudications for the purpose of establishing or fixing a rate.
a. Plain Language of
"The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent."
Dickson v. Rucho
,
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The North Carolina Supreme Court has further explained that "[a] statute must be construed, if possible, so as to give effect to every provision, it being presumed that the Legislature did not intend any of the statute's provisions to be surplusage."
Burgess v. Your House of Raleigh, Inc.
,
Based on the plain language of Section 6-19.1, including not only the words but also the punctuation and ordering of phrases, we reach the conclusion that disciplinary actions by licensing boards are not within the scope of the statute.
"The North Carolina appellate courts have long held that placement of punctuation within a statute is used as a means of 'making clear and plain' the English language therein; therefore, punctuation and placement should be regarded in the process of statutory interpretation."
Falin v. Roberts Co. Field Servs., Inc.
,
We start by examining the language and structure of the first half of
*109 The legislature's use of the word "any" before the phrase "civil action" differentiates the phrase from the two phrases following "other than"-" an adjudication for the purpose of establishing or fixing a rate" and " a disciplinary action by a licensing board"-each introduced with a singular indefinite article, respectively "an" and "a." The singular indefinite articles convey that rate cases and licensing board actions are separate and distinct members of the class of "any civil action," and therefore are excluded from the statute.
The Board argues, and we agree, that the words "other than" exclude from the broader class of "any civil actions" certain specified actions listed immediately after the words "other than." It is undisputed that the
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phrase "an adjudication for the purpose of establishing or fixing a rate" is modified by the exclusionary words of "other than." It follows that the exclusionary words also modify the phrase "a disciplinary action by a licensing board," which similarly begins with a singular indefinite article. This interpretation is consistent with the rule of statutory construction that "[e]very element of a parallel series must be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (e.g., noun, verb, adjective, adverb)."
Falin
,
This interpretation is also consistent with the structure of
Because the phrase "a disciplinary action by a licensing board" is designated with the indefinite article "a," and is separated from the rest
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of the statute by way of commas, we hold that the plain language of the statute conveys the legislature's intent to exclude disciplinary actions by licensing boards from the purview of the
b. Statutory Interpretation of
In addition to the plain language of
Neither Section 6-19.1 nor Chapter 6 of the General Statutes in its entirety defines "any civil action" or "a disciplinary action by a licensing board." This Court, in recognizing a similar lack of definitions in Chapter 6 for the terms "agency" or "State action," has turned to Chapter 150B of the North Carolina
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General Statutes-specifically the North Carolina Administrative Procedure Act ("APA")-because of its reference in Section 6-19.1.
Izydore v. City of Durham
,
The APA sets forth the procedure for a party to appeal for judicial review from a final decision in a "contested case," when the party has exhausted all administrative remedies. N.C. Gen. Stat. § 150B-43 (2017). A contested case is defined as "an administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty. ..." N.C. Gen. Stat. § 150B-2(2) (emphasis added). Licensing is defined as "any administrative action issuing, failing to issue, suspending, or revoking a license or occupational license." N.C. Gen. Stat. § 150B-2(4). Therefore, disciplinary actions by a licensing board necessarily fall within the scope of the APA's definition of a "contested case."
This Court, in
Walker v. N.C. Coastal Resources Comm'n
,
Following
Walker
, the General Assembly amended
fees
fees, including attorney's fees applicable to the administrative review portion of the case, in contested cases under Article 3 of Chapter 150B,
to be taxed as court costs against the appropriate agency ...." 2000 N.C. Sess. Law 2000-190, § 1. The result of this amendment was that, in contested cases under Article 3 of Chapter 150B-cases heard by the Office of Administrative Hearings-a trial court may award attorneys' fees for the administrative review proceeding, contrary to the holding in
Walker
.
By amending Section 6-19.1 after
Walker
to provide specifically for recovery of attorneys' fees incurred in the administrative review portions of Article 3 cases, and omitting any mention of the administrative review portions of Article 3A cases-the Article under which this case presently arises-the legislature revealed its intent not to provide for recovery of attorneys' fees incurred in disciplinary actions by licensing boards.
See, e.g.,
N.C. Dep't of Revenue v. Hudson
,
Accordingly, we conclude that, when read as a whole and based on the legislative history of
Conclusion
For the foregoing reasons, we hold that the trial court erred as a matter of law by awarding Winkler attorneys' fees pursuant to
REVERSED.
Judges ELMORE and BERGER concur.
This argument is joined by the North Carolina Boards of Architecture, Chiropractic Examiners, and General Contractors and the Real Estate Commission in their joint amicus curiae brief.
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