An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                      -2-
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
                                         -3-
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.
                                             -4-
    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.
                                  -5-
    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,
                      -6-
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
                                     -7-
            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
                                        -8-
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
                                       -9-
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
                              -10-
         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).
                                     -11-
    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.
                                            -12-



       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.
                                     -13-
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
                                              -14-
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.
                                                      -15-
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
                                               -16-
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
                                   -17-
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
                                 -18-
         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.”
                                          -19-
      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).
