Faulkner v. North Carolina State Hearing Aid Dealers & Fitters Board , 38 N.C. App. 222 ( 1978 )

247 S.E.2d 668 (1978) 38 N.C. App. 222

In the Matter of Charles E. FAULKNER
v.
NORTH CAROLINA STATE HEARING AID DEALERS AND FITTERS BOARD.

No. 7710SC946.

Court of Appeals of North Carolina.

October 3, 1978.

Atty. Gen., Rufus L. Edmisten, by Associate Atty. Gen., Lucien Capone, III, Raleigh, for appellant, North Carolina State Hearing Aid Dealers and Fitters Bd.

Yates & Talford by Robert M. Talford, Charlotte, for appellee, Charles E. Faulkner.

HEDRICK, Judge.

By assignment of error number one, the Board questions the correctness of the holding of the superior court that the Board's findings of fact failed to support its conclusion that Faulkner "was grossly incompetent within the purview of G.S. 93D-13(a)(2)." The question thus presented is whether Faulkner committed "gross incompetence" by failing to make promised refunds to three clients.

G.S. § 93D-13(a) provides in pertinent part as follows:

The Board may in its discretion administer the punishment of private reprimand, suspension of license or apprentice license for a fixed period or revocation of license or apprentice license as the case may warrant in their judgment for any violation of the rules and regulations of the Board or for any of the following causes:

. . . . .

(2) Gross incompetence

In the construction of a statute it is the function of the court to discover the intent of the Legislature and to give to the words of the statute the meaning which the Legislature intended. Lafayette Transportation Service, Inc. v. The County of Robeson, 283 N.C. 494, 196 S.E.2d 770 (1973). Where the words of a statute have not acquired a technical or special meaning, they are to be construed according to their common and ordinary meaning. Parnell-Martin Supply Co., Inc. v. High Point Motor Lodge, Inc., 277 N.C. 312, 177 S.E.2d 392 (1970). There is nothing in the record to indicate that the Legislature intended that the words "gross incompetence" should be given anything other than their common and ordinary meaning. Webster's Third New International Dictionary (unabr. 1968) defines "incompetence" as a "lack of physical, intellectual, or moral ability" and "gross" as "out-and-out, complete, utter, unmitigated."

Applying the above principles, we think that the term "gross incompetence" was intended by the Legislature to mean a failure on the part of the individual hearing aid dealer to possess the minimum degree of technical expertise or ability required to adequately fit and service hearing aids. Faulkner's failure to make the promised refunds, while reprehensible, fails to demonstrate any lack of competence on his part in selling and fitting hearing aids. The Board's first assignment of error is overruled.

The Board, by its second assignment of error, argues that the superior court failed to make findings set out in writing giving his reasons for reversing the agency's decision as required by G.S. § 150A-51, which provides in pertinent part: "If the Court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification." (emphasis added).

Under G.S. § 150A-51 the reviewing judge may reverse the agency's decision "if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions" are defective for one or more of the six reasons enumerated in the statute. See Daye, North Carolina's New Administrative Procedure Act: An Interpretative Analysis, 53 N.C.L.Rev. 833 (1975). If the court reverses the agency's ruling, it must set out in writing the reasons for the reversal.

Although the trial judge mislabeled its reasons for reversing the agency's decision as a "finding of fact" and although this "finding" is terse, we think it is a sufficient statement of the court's reasons and satisfies the requirements of G.S. § 150A-51. When the judge of the superior court sits as an appellate court to review the decision of an administrative agency pursuant to G.S. § 150A-51, the judge is not required to make findings of fact. Indeed, the findings of fact made by the administrative agency, if supported by competent, material and substantial evidence when viewed on the record as a whole, are conclusive upon the reviewing court. In re Berman, 245 N.C. 612, 97 S.E.2d 232 (1957); In re Hawkins, 17 N.C.App. 378, 194 S.E.2d 540, appeal dismissed, 283 N.C. 393, 196 S.E.2d 275, cert. denied, 414 U.S. 1001, 94 S. Ct. 355, 38 L. Ed. 2d 237 (1973). The authority of the judge when reviewing the actions of administrative agencies is limited to affirming, modifying, reversing or remanding the decision of the agency. Markham v. Swails, 29 N.C.App. 205, 223 S.E.2d 920, appeal dismissed, 290 N.C. 309, 225 S.E.2d 829, cert. denied, 429 U.S. 940, 97 S. Ct. 356, 50 L. Ed. 2d 310 (1976).

Judge Godwin, in reversing the agency's conclusion, simply stated that the facts found by the agency failed "to support its Conclusion of Law that the Petitioner was grossly incompetent within the purview of G.S. 93D-13(a)(2)." The superior court's conclusion constituted a succinct and adequate statement of its reasons for reversing the agency's decision.

Affirmed.

MORRIS and WEBB, JJ., concur.