{
  "id": 11237159,
  "name": "PATRICK BARRETT, Ph.D., Petitioner v. NORTH CAROLINA PSYCHOLOGY BOARD, Respondent",
  "name_abbreviation": "Barrett v. North Carolina Psychology Board",
  "decision_date": "1999-01-19",
  "docket_number": "No. COA98-155",
  "first_page": "126",
  "last_page": "129",
  "citations": [
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      "cite": "132 N.C. App. 126"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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          "parenthetical": "appellate review is de novo if construction of statute is involved"
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      "year": 1981,
      "pin_cites": [
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          "parenthetical": "appellate review is de novo if construction of statute is involved"
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      "cite": "N.C. Gen. Stat. \u00a7 90-170.13",
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      "reporter": "N.C. Gen. Stat.",
      "opinion_index": 0
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    {
      "cite": "N.C. Gen. Stat. \u00a7 90-270.13",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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      "pin_cites": [
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          "page": "(e)"
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  "last_updated": "2023-07-14T21:08:15.604309+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges WALKER and SMITH concur."
    ],
    "parties": [
      "PATRICK BARRETT, Ph.D., Petitioner v. NORTH CAROLINA PSYCHOLOGY BOARD, Respondent"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThe North Carolina Psychology Board (Board) appeals from the Order of the superior court vacating and reversing the Board\u2019s denial of Patrick Barrett\u2019s (Barrett) application for licensure as a psychologist.\nOn 18 September 1995, Barrett applied to the Board for licensure as a psychologist pursuant to N.C. Gen. Stat. \u00a7 90-270.13. On 21 December 1995, the Board, in a letter to Barrett, informed him that it found \u201cno evidence which you have presented which establishes you as a senior psychologist\u201d and denied the application. Pursuant to a written request by Barrett for a formal hearing before the Board, a hearing was conducted on 18 April 1996. On 26 September 1996, the Board entered its Final Decision denying the application on the grounds that Barrett had \u201cfailed to meet his burden of persuasion with respect to the requirements of . . . G.S. \u00a7 90-270.13.\u201d On 29 October 1996, Barrett filed a Petition for Judicial Review (Petition), which was amended on 2 May 1997, alleging in pertinent part that the Board \u201cfailed and refused to provide [Barrett] an application for reciprocity as a Senior Psychologist and failed to adopt rules defining that term for three years after the legislature mandated that the Board adopt such rules.\u201d The Petition was heard in the superior court on 11 November 1997 and Donald W. Stephens, Superior Court Judge, filed his Order on 18 November 1997. That Order, in vacating and reversing the Board, provided in pertinent part:\n4. The evidence of Record establishes that despite the statutory mandate of N.C. Gen. Stat. \u00a7 90-270.13(e), the Board had not adopted any rules defining Senior Psychologist . . . that were effective prior to . . . January 1, 1996 ....\n5. The evidence of Record establishes that in December, 1995, the Board denied [Barrett\u2019s] application for Senior Psychologist under N.C. Gen. Stat. \u00a7 90-270.13. ...\n6. The evidence of Record establishes and Counsel for [the Board] conceded that [Barrett] met each of the statutory qualifications for Senior Psychologist in N.C. Gen. Stat. \u00a7 90-170.13, except for . . . the definition of Senior Psychologist and that . . . such requirement had [not] been established by Board rule until January 1, 1996.\n7. The failure of the Board to promptly and timely enact rules with regard to the . . . definition of Senior Psychologist renders such requirement[] inapplicable to this application.\nThe dispositive issue presented is whether the failure of the Board to follow its legislative mandate to promulgate a rule defining \u201csenior psychologist\u201d renders the requirement that the applicant be a \u201csenior psychologist\u201d inapplicable.\nSection 90-270.13(a) provides in pertinent part that the Board shall grant permanent licensure to any person who, at the time of application, \u201cis licensed or certified as a psychologist by a similar board in another jurisdiction,\u201d (2) \u201cwhose license or certification is in good standing,\u201d (3) \u201cwho is a graduate of an institution of higher education,\u201d (4) \u201cwho passes an examination prescribed by the Board,\u201d and (5) \u201cwho meets the definition of a senior psychologist as that term is defined by the rules of the Board.\u201d N.C.G.S. \u00a7 90-270.13(a) (1997). The statute further provides that the Board \u201cshall adopt rules implementing and defining these provisions, and, with respect to the senior psychologist, shall adopt rules including, but not limited to, such factors as educational background, professional experience, length and status of licensure, ethical conduct, and examination required.\u201d N.C.G.S. \u00a7 90-270.13(e) (1997). The requirements that the applicant be a \u201csenior psychologist\u201d and that the Board enact rules defining that term were enacted by the legislature in 1993 and became effective 1 October 1993. See 1993 N.C. Sess. Laws ch. 375, \u00a7 1.\nThere is no dispute in this case that the Board had not, at the time of Barrett\u2019s application (almost three years after it was directed to do so by the legislature), adopted any rules defining \u201csenior psychologist.\u201d Because the Board was given broad discretion in defining that term, its failure to define the term is tantamount to a decision by the Board that any applicant meeting the other prerequisites of section 90-270.13(a) qualifies as a \u201csenior psychologist.\u201d In any event, Barrett cannot be held to a undefined requirement when a definition is mandated by the legislature. As stated by Judge Stephens, the trial judge in this case, the failure of the Board to define \u201csenior psychologist\u201d by rule \u201crenders such requirement[] inapplicable.\u201d\nBecause the Board erred in its construction of section 90-270.13, we agree with the trial court that the Final Decision of the Board must be reversed. See Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 580-81, 281 S.E.2d 24, 29 (1981) (appellate review is de novo if construction of statute is involved).\nAffirmed.\nJudges WALKER and SMITH concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Allen and Pinnix, PA., by Noel L. Allen andM. Jackson Nichols, for petitioner-appellee.",
      "Attorney General Michael F. Easley, by Assistant Attorneys General Robert M. Curran and Anne J. Brown, for the State."
    ],
    "corrections": "",
    "head_matter": "PATRICK BARRETT, Ph.D., Petitioner v. NORTH CAROLINA PSYCHOLOGY BOARD, Respondent\nNo. COA98-155\n(Filed 19 January 1999)\nPsychologists and Psychiatrists\u2014 psychologists \u2014 licensing\u2014 reciprocity \u2014 senior psychologist\nThe North Carolina Psychology Board erred by refusing petitioner\u2019s application for reciprocity based on its construction of N.C.G.S. \u00a7 90-270.13. That statute has provision for granting licen-sure to people licensed by a similar board in another jurisdiction, requires that the applicant be a \u201csenior psychologist,\u201d and requires the North Carolina Board to enact rules defining that term. The Board had not adopted any rules defining \u201csenior psychologist\u201d almost three years after it was directed to do so by the Legislature; failure to define the term is tantamount to a decision by the Board that any applicant meeting the other prerequisites of the statute qualifies as a \u201csenior psychologist.\u201d In any event, petitioner cannot be held to an undefined requirement when a definition is mandated by the Legislature.\nAppeal by respondent from Order on Petition for Judicial Review dated 14 November 1997 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 6 October 1998.\nAllen and Pinnix, PA., by Noel L. Allen andM. Jackson Nichols, for petitioner-appellee.\nAttorney General Michael F. Easley, by Assistant Attorneys General Robert M. Curran and Anne J. Brown, for the State."
  },
  "file_name": "0126-01",
  "first_page_order": 160,
  "last_page_order": 163
}