                             NO. COA13-1321

                  NORTH CAROLINA COURT OF APPEALS

                       Filed:    7 October 2014

HANS KINDSGRAB,
     Petitioner-Appellant,

    v.                                  Wake County
                                        No. 12 CVS 16903
STATE OF NORTH CAROLINA BOARD OF
BARBER EXAMINERS,
     Respondent-Appellant.


    Appeals by petitioner and respondent from orders entered 3

May 2013 and 11 September 2013 by Judge Howard E. Manning, Jr.,

in Wake County Superior Court.     Heard in the Court of Appeals 23

April 2014.


    Harris & Hilton, P.A., by Nelson G. Harris, for petitioner-
    appellant.

    N.C. Board of Barber Examiners, by W. Bain Jones, Jr., and
    Allen, Pinnix & Nichols, P.A., by M. Jackson Nichols and
    Catherine E. Lee, for respondent-appellant.


    McCULLOUGH, Judge.


    Hans   Kindsgrab   (“petitioner”)    appeals   from   the   Order   On

Petition For Judicial Review filed 11 September 2013.           The State

of North Carolina Board of Barber Examiners (“respondent” or

“the Board”) appeals from the interlocutory order denying its

Motion To Dismiss Petition For Judicial review filed 3 May 2103

and from the Order On Petition For Judicial Review filed 11
                                    -2-
September 2013.       For the following reasons, we affirm in part

and reverse in part.

                             I.     Background

    Petitioner is an owner of Maybe Someday, Inc., which owns

and operates franchises of “The Barbershop – A Hair Salon for

Men” at three locations in the triangle area – Cary, Durham, and

Raleigh.    At all times relevant to this appeal, each location

held a Cosmetic Arts Salon License issued by the North Carolina

State Board of Cosmetic Art Examiners.

    In 2012, an investigation by barber examiner William Graham

revealed that the Cary and Raleigh locations displayed barber

polls and advertised barber services without barber permits and

without licensed barbers on the premises.             As a result, Graham

issued   “Notice[s]    Of   Violation[s]”    to    the   Raleigh    and   Cary

locations     on      31     July     2012        specifying       fraudulent

misrepresentation in violation of N.C. Gen. Stat. § 86A-20 and

N.C. Admin. Code tit. 21, r. 6O.0107.               Following the notices

issued by Graham, on 7 September 2012, the Board sent petitioner

a Notification of Probable Cause to Fine and ordered petitioner

to pay civil penalties, attorney’s fees, and costs.

    By letter to the Board dated 2 October 2012, petitioner

requested an administrative hearing to contest the fraudulent
                                      -3-
misrepresentation     charges.        On     3    October     2012,   the   Board

responded    to   petitioner   by     letter      providing    notice   that   an

administrative hearing had been scheduled for 22 October 2012.

The hearing took place as scheduled.

      Following the 22 October 2012 hearing, the board issued its

Final Decision on 6 November 2012.               Among the conclusions issued

by the board were the following:

            10. Petitioner    must   comply   with   the
            statutes and administrative rules concerning
            barber shops, barbering services and use of
            a barber pole.

            11. The    preponderance  of   the  evidence
            established that it [sic] the Board properly
            cited Petitioner for misrepresenting itself
            as a barber shop or barber salon when it
            failed to have a barber shop permit and a
            licensed barber at each of its franchise
            locations in Cary and Raleigh.

The Board then ordered petitioner to “pay one thousand dollars

($1,000.00) in civil penalties for fraudulent misrepresentations

concerning    attempts    to   barber       and     provide    barber   services

without a shop permit and a licensed barber on the premises at

the Cary and Raleigh locations[, five hundred dollars ($500.00)

per   location,]”   and   to   “pay    one       thousand   six   hundred   fifty

dollars ($1,650.00) in attorney’s fees and costs for services

rendered by the Board Counsel and staff.”
                                           -4-
    On      3    December       2012,     petitioner      filed   a    Petition       For

Judicial Review in Wake County Superior Court seeking review of

the Board’s Final Decision.                    After numerous motions by both

sides    attempting       to     settle    the    record,    on   26    April     2013,

respondent       filed    a     Motion    To   Dismiss    Petition     For    Judicial

Review    on    the     basis    that    petitioner      failed   to   “specifically

state    the    grounds       for    exception[.]”        Respondent’s       motion   to

dismiss came on to be heard with the motions to settle the

record on 3 May 2013.                Following the hearing, the trial court

filed an order denying respondent’s motion to dismiss.

    Respondent’s Petition For Judicial Review came on to be

heard in Wake County Superior Court before the Honorable Howard

E. Manning, Jr., on 4 September 2013.

    In     an    Order     On       Petition   For   Judicial     Review     filed    11

September       2013,    the    trial     court   affirmed    the      Board’s    Final

Decision in part and reversed in part.                    Specifically, the trial

court found the Board’s findings to be supported by substantial

evidence and found the board’s conclusions to be supported by

the findings of fact and the whole record.                   The trial court also

made the following more specific findings:

               4.   The Court affirms in part Paragraph 1
               of the Order portion of the Final Agency
               Decision   which  holds  that  Petitioner’s
               businesses, The Barber Shop – A Hair Salon
                              -5-
         For Men, were providing barber services
         without a barber shop permit and a licensed
         barber on the premises at Respondent’s Cary
         and Raleigh locations.

         5.   The Court affirms in part the Final
         Agency Decision, which holds that Petitioner
         is not allowed to use or display a barber
         pole for the purpose of offering barbering
         services, and Petitioner is ordered to
         remove the barber pole unless licensed by
         Respondent Board.

         6.   The Court affirms in part the Final
         Agency     Decision    which    holds     that
         Petitioner’s businesses, advertising of its
         services    as    a   barber   shop    is    a
         misrepresentation     and    confusing     and
         deceptive to the consuming public, and
         Petitioner is ordered to remove and cease
         such   advertisements   unless   licensed   by
         Respondent Board.

         7.   The Court reverses in part the Final
         Agency Decision in its imposition of fines
         because the Court concludes that Respondent
         Board does not have the statutory authority
         to impose fines on persons or entities not
         licensed by the Board.

         8.   The Court reverses in part the Final
         Agency   Decision   in  its   imposition   of
         attorney   fees   and  costs   for   services
         rendered by the Board Counsel and staff
         because the Court concludes that Respondent
         Board does not have the statutory authority
         to impose such fees and costs on persons or
         entities not licensed by the Board.

Based on these findings, the trial court ordered the imposition

of civil penalties and the award of attorney’s fees and costs
                                     -6-
for   services   be   reversed.       Both      petitioner   and    respondent

appealed.

                               II.   Discussion

      “When reviewing a superior court order concerning an agency

decision, we examine the order for errors of law.                  The process

has been described as a twofold task:              (1) determining whether

the trial court exercised the appropriate scope of review and,

if appropriate, (2) deciding whether the court did so properly.”

Poarch v. N.C. Dep’t of Crime Control & Pub. Safety, _ N.C. App.

_, _, 741 S.E.2d 315, 318 (2012) (quotation marks and citations

omitted).

                        A.     Petitioner’s Appeal

      The sole issue raised on appeal by petitioner is whether

the trial court exceeded the permissible scope of review when it

ordered him to remove the barber pole and cease                    advertising

barber   services     unless   licensed    by    the   Board.       Petitioner

contends the trial court did and that those portions of the

trial court’s order must be reversed.            We agree.

      N.C. Gen. Stat. § 150B-51 governs the scope of judicial

review of an agency decision.        It provides in pertinent part:

            (b) The court reviewing a final decision
            may affirm the decision or remand the case
            for further proceedings. It may also reverse
            or modify the decision if the substantial
                               -7-
         rights of the petitioners may have been
         prejudiced because the findings, inferences,
         conclusions, or decisions are:

            (1)   In   violation     of     constitutional
                  provisions;

            (2)   In excess of the statutory authority
                  or jurisdiction of the agency or
                  administrative law judge;

            (3)   Made upon unlawful procedure;

            (4)   Affected by other error of law;

            (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.

         (c) In reviewing a final decision in a
         contested case, the court shall determine
         whether the petitioner is entitled to the
         relief sought in the petition based upon its
         review   of the final decision and the
         official record.    With regard to asserted
         errors pursuant to subdivisions (1) through
         (4) of subsection (b) of this section, the
         court shall conduct its review of the final
         decision using the de novo standard of
         review. With regard to asserted errors
         pursuant to subdivisions (5) and (6) of
         subsection (b) of this section, the court
         shall conduct its review of the final
         decision using the whole record standard of
         review.

N.C. Gen. Stat. § 150B-51 (2013).

    Pursuant to N.C. Gen. Stat. §§ 86A-5 & -27, the Board has

the power to assess civil penalties.      See N.C. Gen. Stat. § 86A-
                                         -8-
5(a)(6) (2013).       The Board does not, however, have the power to

issue injunctions.          Thus, in accordance with its powers, the

Board did not enjoin petitioner, but simply found petitioner was

properly    cited    for    fraudulent      misrepresentations      and    ordered

petitioner to pay civil penalties, attorney’s fees, and costs.

    As     detailed      more    fully   above,    petitioner    petitioned     the

trial court to review the Board’s assessment of civil penalties,

attorney’s fees, and costs.              Upon reviewing the case, the trial

court reversed portions of the Board’s Final Decision and held

the Board did not have the statutory authority to impose civil

penalties, attorney’s fees, and costs on non-licensees.                         The

trial court did, however, affirm the Board’s conclusions that

petitioner was subject to the Barber Act, Chapter 86A of the

General     Statues,       and     violated    certain     rules     related     to

advertising       barber   services.       Yet,    in   addition    to   affirming

those     portions    of    the     Board’s    Final     Decision    related     to

advertising, the trial court ordered petitioner to remove the

barber     pole    and     cease    advertising     barber      services   unless

licensed by the Board.

    Defendant now contends the decretal portions of the trial

court’s    order     ordering      the   removal   of    the   barber    pole   and
                                          -9-
cessation of advertising barber services were beyond the scope

of the trial court’s review.

      Although the Barber Act provides an avenue for the Board to

seek an injunction in superior court, see N.C. Gen. Stat. § 86A-

20.1 (2013) (“The Board . . . may apply to the superior court

for an injunction to restrain any person from violating the

provisions of this Chapter or the Board's rules.”), respondent

concedes that it did not pursue that avenue, nor raise the issue

in the underlying contested case.                Nevertheless, citing In re

Alamance County Court Facilities, 329 N.C. 84, 94, 405 S.E.2d

125, 129 (1991) (“Generally speaking, the scope of a court's

inherent     power   is    its   ‘authority     to   do   all    things   that   are

reasonably      necessary        for      the   proper         administration     of

justice.’”) (quoting Beard v. N.C. State Bar, 320 N.C. 126, 129,

357 S.E.2d 694, 696 (1987)), respondent contends that it was

within the inherent power of the court to enjoin petitioner from

displaying the barber pole and advertising barber services.                       We

disagree.

      Given that N.C. Gen. Stat. § 86A-20.1 provides an avenue

for respondent to seek an injunction and respondent did not

pursue that avenue, we hold the trial court, acting on its own

to   issue    relief      outside   the    authority      of    the   Board,    acted
                                     -10-
outside the scope of review provided in N.C. Gen. Stat. § 150B-

51.     The only issues before the trial court for review were

those issues decided by the Board – the assessment of civil

penalties, attorney’s fees, and costs.            As a result, we reverse

those     portions   of    the    trial     court’s    order    that     mandate

petitioner remove the barber pole and cease advertising barber

services.

                          B.     Respondent’s Appeal

      In respondent’s appeal, respondent first argues the trial

court erred in its 3 May 2013 order by denying its Motion To

Dismiss Petition For Judicial Review.            Specifically, respondent

contends dismissal was appropriate because petitioner failed to

make specific exceptions to the Board’s Final Decision.

      N.C. Gen. Stat. § 150B-46 governs the contents of petitions

for judicial review from final agency decisions.                    It provides,

“[t]he petition shall explicitly state what exceptions are taken

to the decision or procedure and what relief the petitioner

seeks.”      N.C. Gen. Stat. § 150B-46 (2013).                 This Court has

recognized    that   “‘[e]xplicit’     is    defined    in   this    context   as

‘characterized by full clear expression: being without vagueness

or ambiguity:    leaving nothing implied.’”            Gray v. Orange County

Health Dept., 119 N.C. App. 62, 70, 457 S.E.2d 892, 898 (1995)
                                       -11-
(quoting Vann v. N.C. State Bar, 79 N.C. App. 173, 173-74, 339

S.E.2d 97, 98 (1986)).        Applying that definition of explicit in

both Gray and Vann, this Court held the trial courts erred in

denying   the     respondents’        motions    to   dismiss   because      the

petitions at issue were not “sufficiently explicit” to allow

effective judicial review where the petitioners did not except

to   particular    findings      of     fact,    conclusions    of    law,    or

procedures.     Gray, 119 N.C. App. at 71, 457 S.E.2d at 899, Vann,

79 N.C. App. at 174, 339 S.E.2d at 98.

     Respondent now argues for a similar result in the present

case because petitioner did not take exception with specific

findings of fact, conclusions of law, or procedures.                 Respondent

claims petitioner made only general assertions of error that

fail to meet the required standards of specificity under N.C.

Gen. Stat. § 150B-46.     We disagree.

     Although petitioner did not except to specific findings or

conclusions by the Board, petitioner clearly stated exceptions

to the Board’s Final Decision.                These exceptions include the

following:

          a.   Petitioner    is   not   a   licensed   or
          registered      barber      (hereinafter     “a
          Licensee”), and the Board’s powers over
          individuals   who   are   not   Licensees   are
          limited   to   making   a   criminal   referral
          alleging a violation of N.C.G.S. § 86A-20,
                      -12-
or seeking injunctive relief from the Court
as provided for under N.C.G.S. § 86A-20.1.
The Board’s imposition of fines and costs on
Petitioner is beyond the power granted by
the General Assembly; the Final Decision is
in excess of the statutory authority or
jurisdiction   of   the    Board,   and,  in
accordance with N.C.G.S. § 150B-51(b)(2),
the Final Decision must be reversed.

b.   Even if N.C.G.S. § 86A-27 applies to
individuals who are not Licensees, N.C.G.S.
§ 86A-27(d) specifically provides that the
Board may only impose fees and costs on “the
licensee”, and Petitioner is not a Licensee.
Under the circumstances, imposition of costs
and attorney’s fees on Petitioner is in
excess   of   the  statutory    authority or
jurisdiction    of  the    Board,    and, in
accordance with N.C.G.S. § 150B-51(b)(2),
the Final Decision must be reversed.

c.     N.C.G.S. § 86A-14 provides:

     The following persons are exempt from the
     provisions of this Chapter while engaged
     in the proper discharge of their duties:

     . . . .

     (5) Persons who are working in licensed
     cosmetic shops or beauty schools and are
     licensed by the State Board of Cosmetic
     Art Examiners.

As the Board recognizes, each of Maybe
Someday’s locations has a Cosmetic Arts
Salon   License    through   Petitioner,   and,
therefore, in accordance with the provisions
of N.C.G.S. § 86A, Petitioner is exempt from
the provisions of the Barber Act. Under the
circumstances, the Final Decision is in
excess   of   the    statutory   authority   or
jurisdiction    of    the   Board,    and,   in
                               -13-
         accordance with N.C.G.S. § 150B-51(b)(2),
         and [sic] it must be reversed.

         d.    A    primary   basis   for   the   Board’s
         contention that Petitioner was “attempting
         to barber by fraudulent misrepresentations”
         is that Maybe Someday’s locations have a
         “barber pole” in the reception area, without
         a barber permit for the shop.       With respect
         to the use of the “barber pole”, the Board
         holds that 21 NCAC 06Q.0101 “states that no
         person shall use or display a barber pole
         for    the   purpose   of   offering   barbering
         services to the consuming public without a
         barber shop permit.”         In fact, 21 NCAC
         06Q.0101 does not state anything of the
         sort.      The cited section of the North
         Carolina Administrative Code simply provides
         “[e]very establishment permitted to practice
         barbering shall display at its main entrance
         a sign which is visible from the street, and
         whose lettering is no small[er] than three
         inches,     stating   ‘barber   shop,’   ‘barber
         salon,’ ‘barber styling’ or similar use of
         the designation, ‘shop, salon or styling’ or
         shall display a ‘barber pole’ . . [. .]”
         Thus, the cited section of the North
         Carolina      Administrative     Code    imposes
         obligations on barbers, it does not prohibit
         any    act    by   individuals   who   are   not
         Licensees.

         . . . .

         Under the circumstances, the Final Decision,
         in   accordance   with  the   provisions   of
         N.C.G.S. § 150B-51(b)(2), and/or N.C.G.S. §
         150B-51(b)(4),   and/or  N.C.G.S.   §   150B-
         51(b)(6), must be reversed.

    Considering    these   exceptions   in   the   context   of   the

petition, we find the Petition For Judicial Review “sufficiently
                                            -14-
explicit” to allow effective judicial review.                      Thus, we hold the

trial   court     did    not    err    in    denying      respondent’s       motion   to

dismiss.

    In     the     second      issue     raised      by   respondent     on    appeal,

respondent    argues      the     trial      court   erred    in    concluding      that

“Respondent      Board    does     not      have   the    statutory    authority      to

impose such fines on persons or entities not licensed by the

Board.”    Upon review of the statutes, regulations, and relevant

law, we agree.

    Among the powers and duties assigned to the Board is the

power “to assess civil penalties pursuant to [N.C. Gen. Stat. §]

86A-27.”     N.C. Gen. Stat. § 86A-5(a)(6).                N.C. Gen. Stat. § 86A-

27(a) in turn          provides,      in pertinent part, “[t]he Board may

assess a civil penalty not in excess of five hundred dollars

($500.00) per offense for the violation of any section of this

Chapter or the violation of any rules adopted by the Board.”

N.C. Gen. Stat. § 86A-27 (2013).

    A plain reading of N.C. Gen. Stat. § 86A-27(a) reveals no

indication that the imposition of civil penalties is limited

solely to licensees.            In fact, as respondent points out, where

portions of the statute are intended to apply exclusively to

licensees,       the    statute    unambiguously          provides     for    it;     for
                                          -15-
example,    N.C.      Gen.     Stat.    §       86A-27(d),     which       governs       the

assessment of attorney’s fees and costs in Board proceedings,

provides    that      “[t]he   Board     may     in   a   disciplinary       proceeding

charge   costs,       including       reasonable      attorneys'          fees,    to    the

licensee against whom the proceedings were brought.”                          N.C. Gen.

Stat. § 86A-27(d) (emphasis added).                   Where there is no limiting

language    in   N.C.    Gen.     Stat.     §    86A-27(a),     we    will        not   read

limiting language into the statute.

    Moreover, N.C. Gen. Stat. § 86A-27(c) provides that “[t]he

Board    shall     establish      a     schedule       of    civil     penalties        for

violations of this Chapter and rules adopted by the Board.”                             The

Board has done so beginning with N.C. Admin. Code tit. 21, r.

6O.0101.    As argued by respondent, the rules promulgated by the

Board pursuant to the Administrative Procedure Act, Chapter 150B

of the General Statutes, indicate that fines may be imposed on

non-licensees.         See N.C. Admin. Code tit. 21, r. 6O.0102 (June

2014) (setting forth a schedule of civil penalties for operating

a barber shop without first filing an application for a barber

shop license or without a valid permit).

    Particularly relevant to this case, the schedule of civil

penalties   provides      that    “[t]he        presumptive     civil       penalty      for

barbering        or      attempting             to    barber         by      fraudulent
                                       -16-
misrepresentations . . . :            1st offense $500.00.”       N.C. Admin.

Code tit. 21, r. 6O.0107 (June 2014).               A subsequent regulation

explains that

             [e]xcept as provided in Chapter 86A of the
             General Statutes, the Board:

               (1)     will          find              fraudulent
                       misrepresentation in        the following
                       examples:

                  (a)     An individual or entity operates
                          or attempts to operate a barber
                          shop without a permit;

                  (b)     An individual or entity advertises
                          barbering   services  unless   the
                          establishment     and    personnel
                          employed therein are licensed or
                          permitted;

                  (c)     An individual or entity uses or
                          displays a barber pole for the
                          purpose    of    offering    barber
                          services to the consuming public
                          without a barber shop permit[.]

             . . . .

N.C. Admin. Code tit. 21, r. 6Q.0101 (June 2014).                 Thus, it is

clear from the Board rules that civil penalties may be assessed

for violations by an “individual or entity”, not just against

those licensed by the Board.

       In   response    to   respondent’s      argument,   petitioner     argues

that   if   the   Board      has   statutory   authority    to   impose   civil

penalties on non-licensees, that authority is unconstitutional
                                     -17-
because it constitutes a grant of judicial power to the Board

that is not “reasonably necessary” to accomplish the Board’s

purpose.

    North      Carolina’s     Constitution         provides    that      “[t]he

legislative, executive, and supreme judicial powers of the State

government    shall   be   forever   separate      and   distinct    from   each

other.”      N.C.   Const.   art.    I,   §   6.    As   our   Supreme      Court

explained in State, ex rel Lanier, Comm’r of Ins. v. Vines, 274

N.C. 486, 164 S.E.2d 161 (1968),

            The legislative authority is the authority
            to make or enact laws; that is, the
            authority to establish rules and regulations
            governing the conduct of the people, their
            rights,   duties   and   procedures,   and   to
            prescribe   the   consequences    of    certain
            activities.         Usually,    it     operates
            prospectively.   The   power   to   conduct   a
            hearing, to determine what the conduct of an
            individual has been and, in the light of
            that determination, to impose upon him a
            penalty, within limits previously fixed by
            law, so as to fit the penalty to the past
            conduct so determined and other relevant
            circumstances, is judicial in nature, not
            legislative.

Id. at 495, 164 S.E.2d at 166.            Our Constitution, however, also

provides that “[t]he General Assembly may vest in administrative

agencies established pursuant to law such judicial powers as may

be reasonably necessary as an incident to the accomplishment of

the purposes for which the agencies were created.”                  N.C. Const.
                                        -18-
art.   IV,    §   3.     “Whether      a     judicial   power   is    ‘reasonably

necessary as an incident to the accomplishment of the purposes

for which’ an administrative office or agency was created must

be determined in each instance in the light of the purpose for

which the agency was established and in the light of the nature

and extent of the judicial power undertaken to be conferred.”

Lanier, 274 N.C. at 497, 164 S.E.2d at 168.

       What   began     as   a    narrow     interpretation     of    “reasonably

necessary” in Lanier has since become more liberal, permitting

administrative agencies guided by proper standards to exercise

discretion in assessing civil penalties.                See In re Appeal from

Civil Penalty Assessed for Violations of Sedimentation Pollution

Control Act, 324 N.C. 373, 381-82, 379 S.E.2d 30, 35 (1989).

Applying the less mechanical approach in In re Civil Penalty,

our Supreme Court upheld a civil penalty imposed by the North

Carolina      Department         of   Natural     Resources     and    Community

Development       for   violations      of     the   Sedimentation      Pollution

Control Act as reasonably necessary.              Id.

       As petitioner states, “[t]he purposes of the Board are to

license barbers and to prevent anyone who is not licensed as a

barber from practicing barbering.”               See N.C. Gen. Stat. § 86A-1
                                        -19-
(2013).      As with most agencies, these purposes serve to protect

the public.

      Now on appeal, petitioner contends the Board has all the

tools necessary to accomplish its purposes by referring non-

licensees     engaged    in    the   practice     of   barbering    for   criminal

prosecution pursuant to N.C. Gen. Stat. § 86A-20 and seeking to

enjoin non-licensees from practicing barbering pursuant to N.C.

Gen. Stat. § 86A-20.1.           While we recognize that N.C. Gen. Stat.

§§   86A-20    &    -20.1     provide   means    to    accomplish   the    Board’s

purposes, they are not the exclusive means.                 As the Court noted

in In re Civil Penalty, other avenues to prohibit violations,

such as injunctions, take time during which irreparable damage

may occur.         “The power to levy a civil penalty is therefore a

useful tool, since even the threat of a fine is a deterrent.”

324 N.C. at 381, 379 S.E.2d at 35.

      Similarly, in this case we hold that the imposition of

civil penalties on non-licensees is reasonably necessary for the

Board   to    serve   its     purpose   of     preventing   non-licensees     from

engaging in the practice of barbering.

                                 III. Conclusion

      For the reasons discussed above, we affirm the trial court

in part and reverse in part.
                         -20-
Affirmed in part; reversed in part.

Judges CALABRIA and ELMORE concur.
