{ "id": 8527698, "name": "JOHN G. BASHFORD, Petitioner v. NORTH CAROLINA LICENSING BOARD FOR GENERAL CONTRACTORS, Respondent", "name_abbreviation": "Bashford v. North Carolina Licensing Board for General Contractors", "decision_date": "1992-09-15", "docket_number": "No. 9110SC656", "first_page": "462", "last_page": "467", "citations": [ { "type": "official", "cite": "107 N.C. App. 462" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "369 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "603", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514118 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0580-01" ] }, { "cite": "347 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735680, 4736315, 4735915, 4739582 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0281-04", "/nc/318/0281-03", "/nc/318/0281-02", "/nc/318/0281-01" ] }, { "cite": "344 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "133-34", "parenthetical": "emphasis original" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522224 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0213-01" ] }, { "cite": "244 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "389", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "year": 1978, "pin_cites": [ { "page": "240", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "294 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570630, 8570799, 8570673, 8570711, 8570745 ], "year": 1982, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0392-01", "/nc/306/0392-05", "/nc/306/0392-02", "/nc/306/0392-03", "/nc/306/0392-04" ] }, { "cite": "289 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "871", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522384 ], "year": 1982, "pin_cites": [ { "page": "527", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0525-01" ] }, { "cite": "276 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "409-10" } ], "opinion_index": 0 }, { "cite": "302 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567436 ], "year": 1981, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0458-01" ] }, { "cite": "354 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "469" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739716 ], "year": 1987, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0378-01" ] } ], "analysis": { "cardinality": 667, "char_count": 12940, "ocr_confidence": 0.76, "pagerank": { "raw": 2.467486047393343e-07, "percentile": 0.8061780821970702 }, "sha256": "cae8ba6b69e4f6b094f3d8cd836c441df759b5882ea7f74be876867ac99045b1", "simhash": "1:c7c1857f7c31ecc5", "word_count": 2079 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wynn and Walker concur." ], "parties": [ "JOHN G. BASHFORD, Petitioner v. NORTH CAROLINA LICENSING BOARD FOR GENERAL CONTRACTORS, Respondent" ], "opinions": [ { "text": "LEWIS, Judge.\nPetitioner-Bashford is a general contractor who contracted with the Parkers to build a house in Raleigh utilizing a set of plans prepared by an independent design firm. Petitioner had never performed the type of masonry work required by the plans. According to the North Carolina State Building Code (Code), masonry must be supported by either steel, concrete, or masonry. Petitioner took the plans, which specified steel, to North Carolina Steel (NCS) to have the appropriate steel angle fashioned to support the nonstructural masonry veneer on the gable over the garage. The angle NCS proffered was thicker than the Code mandated, but it permitted only one lag screw per stud rather than the Code\u2019s required two per stud. Unable to insert two lag screws per stud, the framing contractor used an alternative method called \u201cper-line blocking\u201d to install the angle. This method entailed laying steel on the roof and blocking \u201cdown the rafters on the roof and fastening] the lag bolts into the blocking, as opposed to the studs.\u201d\nOn 8 July 1987, a Raleigh City Building Inspector inspected the frame work and the steel angle installation. Petitioner testified that the steel angle was inspected prior to being covered by the brick veneer and that it passed inspection. A certificate of occupancy was issued and the Parkers moved into the house under a rental agreement at the end of August 1987. The Parkers refused to close upon the house until petitioner completed the work on their punch list. After the submission of several punch lists, a closing date was set for 7 October 1987. Upon failure to complete certain finish work, the Parkers filed suit against petitioner and again refused to close on the house.\nThe Parkers submitted multiple complaints to the Raleigh City Building Inspector\u2019s office. When that office\u2019s efforts failed to yield relief, the Parkers filed a complaint against the Raleigh Inspector\u2019s Office with the state. As a result, a code consultant for the North Carolina Department of Insurance inspected the Parkers\u2019 residence on 8 September 1988 and determined that \u201cthe steel angle and the masonry above are probably supported on the wood roof structure\u201d which is in violation of the Code. By consent order filed 14 November 1988, the Parkers agreed to purchase the house for the contract price of $162,000.00 plus interest from 29 August 1987. The Parkers and Bashford agreed to \u201cwaive, release and quitclaim any and all claims that may presently exist between them concerning the house and real property in question and their relationship concerning said property.\u201d Closing took place on 28 November 1988.\nOn 5 May 1989, the North Carolina Licensing Board for General Contractors (Board) issued a Notice of Hearing which alleged that petitioner was grossly negligent, incompetent or had committed misconduct in the practice of general contracting pursuant to N.C.G.S. \u00a7 8741(a), by constructing a residence for the Parkers which did not properly support the brick veneer on the gable over the garage. The evidence presented at the hearing tended to show that the steel angle support did not meet Code. Several witnesses testified that there was no evidence of structural failure in the area of the support. A Code consultant gave his opinion that despite the lack of visible damage, the support was unsafe. A structural engineer for the North Carolina Department of Transportation testified that the brick veneer was adequately supported. The final decision, issued 7 July 1989, found petitioner to be grossly negligent for violating the Code with regard to the steel angle masonry support. The Board suspended petitioner\u2019s general contractor\u2019s license for six months to begin upon completion of contracts in hand. The imposition of this sanction was itself suspended and petitioner was placed on probation for one year on the condition that he fix the defects in the Parkers\u2019 house.\nPetitioner appealed the final agency decision to the Wake County Superior Court pursuant to N.C.G.S. \u00a7 150B-45. The trial court found that the provisions of the settlement of the Parkers\u2019 suit against petitioner precluded the Board from conditioning a suspension of sanctions upon completion of remedial work upon the Parkers\u2019 residence. By judgment signed 14 February 1990, the trial court affirmed the Board\u2019s finding petitioner grossly negligent, but reversed and remanded on the issue of sanctions. The trial court remanded the case to the Board for the \u201cimposition of appropriate sanctions not to exceed a six-months active suspension of petitioner\u2019s license.\u201d Both parties appealed to this Court; the appeal and cross appeal were dismissed. Upon remand, the Board issued a final decision, 10 December 1990, in which it suspended petitioner\u2019s license for six months and placed him on probation for six months following the suspension. By consent order the trial court affirmed the final agency decision. By appeal and cross appeal both parties seek review in this Court.\nPetitioner appeals the suspension of his general contractor\u2019s license arguing that he was not grossly negligent. The Board appeals the trial court\u2019s judgment signed 14 February 1990. The Board argued that the settlement of the suit between the Parkers and petitioner did not preclude the Board\u2019s ability to condition the suspension of an active sanction on the completion of remedial work on the Parkers\u2019 residence. Because we find for petitioner on the issue of gross negligence, it necessarily follows that the question of sanctions are no longer an issue to be decided in this case. Therefore, the only issue to be discussed will be that of whether there is sufficient evidence to find petitioner grossly negligent in the practice of general contracting.\nFirst,, we address the appropriate standard of review. Petitioner argues for a de novo review, while the Board argues for a \u201cwhole record\u201d review. The Board is an agency subject to the Administrative Procedures Act, Chapter 150B. According to N.C.G.S. \u00a7 150B-51(b) the review of a final agency decision is a \u201cwhole record test.\u201d In re Appeal of K-Mart Corp., 319 N.C. 378, 380, 354 S.E.2d 468, 469 (1987). The reviewing court is \u201cbound by the findings of the [agency] if they are supported by competent, material, and substantial evidence in view of the entire record as submitted.\u201d Id. (citation omitted). However:\n[w]hen the issue on appeal is whether a state agency erred in interpreting a statutory term, an appellate court may freely substitute its judgment for that of the agency and employ de novo review. (Citations omitted). Although the interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference by appellate courts, those interpretations are not binding.\nSavings and Loan League v. Credit Union Comm., 302 N.C. 458, 465, 276 S.E.2d 404, 409-10 (1981).\nEssentially, the propriety of the Board\u2019s action turns upon the meaning accorded the term \u201cgross negligence\u201d in the governing statute N.C.G.S. \u00a7 87-ll(a). The statute provides\nThe Board shall have the power to revoke the certificate of license of any general contractor licensed hereunder who is found guilty of any fraud or deceit in obtaining a license, or gross negligence, incompetency or misconduct in the practice of his profession, or willful violation of any provisions of this Article. . . .\nN.C.G.S. \u00a7 87-ll(a) (emphasis added). We note that \u201cgross negligence\u201d is not defined within N.C.G.S. \u00a7 87-11. Though violations of the building code have been held to constitute \u201cnegligence per se, \u201d Sullivan v. Smith, 56 N.C. App. 525, 527, 289 S.E.2d 870, 871, disc. rev. denied, 306 N.C. 392, 294 S.E.2d 220 (1982) (citations omitted), case law does not address the circumstances necessary to elevate mere negligence, within the administrative decisionmak-ing process, to that of gross negligence. Further, the Board, which is required to \u201cadopt and publish guidelines, . . ., governing the suspension and revocation of licenses\u201d has not presented evidence to show that it has defined gross negligence. N.C.G.S. \u00a7 87-ll(b).\nThe Board argues that the courts should defer to it and permit it to define gross negligence. According to the Board \u201cwhat constitutes gross negligence in this context is essentially a fact-finding process calling for application of the Board\u2019s expertise.\u201d Petitioner argues that we should utilize statutory interpretation to define the term gross negligence in N.C.G.S. \u00a7 87-11. Petitioner urges this Court to engraft upon the statute at issue the common law definition of gross negligence, as developed in tort law.\nWe find petitioner\u2019s argument persuasive. Statutes should be interpreted according to the \u201ccommon law as it was understood at the time of the enactment of the statute.\u201d In re Banks, 295 N.C. 236, 240, 244 S.E.2d 386, 389 (1978) (citation omitted). In Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, disc. rev. denied, 318 N.C. 281, 347 S.E.2d 462 (1986) another panel of this Court affirmed the following jury instruction as a correct statement of the law:\nOrdinary negligence is the lack of reasonable care. Gross negligence is an extreme departure from the ordinary standard of conduct. It is very great danger. It is negligence materially greater than ordinary negligence. The difference is one of degree. ^\nGross negligence is negligence of an aggravated character and a gross failure to . exercise reasonable care.\nThe term implies a thoughtless disregard of consequences without exerting any effort to avoid it.\nGross negligence means a greater absence of reasonable care than is implied by the term, ordinary negligence.\nId. at 219, 344 S.E.2d at 133-34 (emphasis original). The Board puts forth the definition of gross negligence found in Bullins v. Schmidt, 322 N.C. 580, 369 S.E.2d 601 (1988): \u201cwanton conduct done with conscious or reckless disregard for the rights and safety of others.\u201d Id. at 583, 369 S.E.2d at 603 (citations omitted).\nThe Board argues that petitioner was grossly negligent because his installation of the steel angle support, despite its violation of the Code, demonstrated a disregard for the safety of others. We disagree. From the above, it appears that more than a violation of the building code is required to reach the somewhat elevated level of gross negligence. The Board\u2019s findings of fact and our review of the record reveal only a violation of the Code. There is no evidence of a wanton disregard for the safety of others or a thoughtless disregard for the consequences of his actions nor any indication of danger to persons or property. Without such evidence of gross negligence, the Board\u2019s decision is reversed.\nThe portion of the trial court order which affirmed the Board\u2019s finding petitioner grossly negligent is reversed. The portion of the trial court order which remanded the case for imposition of alternative sanctions is vacated.\nReversed in part and vacated in part.\nJudges Wynn and Walker concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Shipman & Lea, by Gary K. Shipman, for petitioner.", "Bailey & Dixon, by Carson Carmichael, III and Rodney B. Davis, for respondent-appellee.", "Bailey & Dixon, by Carson Carmichael, III and Ann L. Johnston, for respondent-cross appellant." ], "corrections": "", "head_matter": "JOHN G. BASHFORD, Petitioner v. NORTH CAROLINA LICENSING BOARD FOR GENERAL CONTRACTORS, Respondent\nNo. 9110SC656\n(Filed 15 September 1992)\n1. Administrative Law \u00a7 67 (NCI4th)\u2014 review of final agency decision \u2014interpretation of statutory term \u2014de novo review proper\nThe Court of Appeals could employ a de novo rather than a \u201cwhole record\u201d review of a final decision by respondent board suspending petitioner\u2019s general contractor\u2019s license for gross negligence, since the issue on appeal was whether respondent board erred in interpreting the term \u201cgross negligence.\u201d\nAm Jur 2d, Administrative Law \u00a7\u00a7 656, 697.\n2. Contractors \u00a7 10 (NCI4th)\u2014 general contractor \u2014revocation of license for violation of building code \u2014no gross negligence\n\u201cGross negligence\u201d on the part of a general contractor for which respondent may revoke his license requires more than a violation of the building code; rather, gross negligence is wanton conduct done with conscious or reckless disregard for the rights and safety of others. In this case where petitioner installed a steel angle support in violation of the building code, there was no evidence of any wanton disregard for the safety of others or a thoughtless disregard for the consequences of his action nor any indication of danger to persons or property, and the trial court therefore erred in finding petitioner grossly negligent.\nAm Jur 2d, Building and Construction Contracts \u00a7 130.\nAppeal by both parties from a consent order entered 3 April 1991 by Judge Narley L. Cashwell in WAKE County Superior Court and appeal by respondent from an order entered 14 February 1990 by Judge I. Beverly Lake, Jr. in WAKE County Superior Court. Heard in the Court of Appeals on 12 May 1992.\nShipman & Lea, by Gary K. Shipman, for petitioner.\nBailey & Dixon, by Carson Carmichael, III and Rodney B. Davis, for respondent-appellee.\nBailey & Dixon, by Carson Carmichael, III and Ann L. Johnston, for respondent-cross appellant." }, "file_name": "0462-01", "first_page_order": 490, "last_page_order": 495 }