{ "id": 8438746, "name": "McGLADREY & PULLEN, LLP, Petitioner v. NORTH CAROLINA STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANT EXAMINERS, Respondent", "name_abbreviation": "McGladrey & Pullen, LLP v. North Carolina State Board of Certified Public Accountant Examiners", "decision_date": "2005-07-19", "docket_number": "No. COA04-911", "first_page": "610", "last_page": "622", "citations": [ { "type": "official", "cite": "171 N.C. App. 610" } ], "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": "594 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "837", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895277 ], "year": 2004, "pin_cites": [ { "page": "31-32", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0024-01" ] }, { "cite": "65 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "216 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614002 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/216/0746-01" ] }, { "cite": "366 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "700-01", "parenthetical": "quoting Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968)" }, { "page": "700-01" } ], "opinion_index": 0 }, { "cite": "322 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515293 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "67", "parenthetical": "quoting Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968)" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0061-01" ] }, { "cite": "55 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631616 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0641-01" ] }, { "cite": "135 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "261 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575129 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/261/0645-01" ] }, { "cite": "160 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "23", "parenthetical": "citing Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949); 2 Strong, N.C. Index 2d, Constitutional Law \u00a7 20 (1967)" }, { "page": "67" } ], "opinion_index": 0 }, { "cite": "273 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575113 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "298", "parenthetical": "citing Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949); 2 Strong, N.C. Index 2d, Constitutional Law \u00a7 20 (1967)" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0293-01" ] }, { "cite": "593 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "358 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986024 ], "year": 2004, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0190-01" ] }, { "cite": "436 U.S. 447", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490308 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "464-65" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/us/436/0447-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 93-12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "65 L. Ed. 2d 348", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "433 U.S. 350", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179472 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "363-64" } ], "opinion_index": 0, "case_paths": [ "/us/433/0350-01" ] }, { "cite": "425 U.S. 748", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182253 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "762" }, { "page": "761-63" }, { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/us/425/0748-01" ] }, { "cite": "447 U.S. 557", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6186683 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "563-64", "parenthetical": "citing Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762, 48 L. Ed. 2d 346 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-64, 53 L. Ed. 2d 810 (1977); Friedman v. Rogers, 440 U.S. 1, 11, 59 L. Ed. 2d 100 (1979)" }, { "page": "348", "parenthetical": "citing Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762, 48 L. Ed. 2d 346 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-64, 53 L. Ed. 2d 810 (1977); Friedman v. Rogers, 440 U.S. 1, 11, 59 L. Ed. 2d 100 (1979)" }, { "page": "563-64" }, { "page": "563" }, { "page": "563-64" }, { "page": "563-64" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/us/447/0557-01" ] }, { "cite": "366 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1285678 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/us/366/0036-01" ] }, { "cite": "418 U.S. 323", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173012 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/418/0323-01" ] }, { "cite": "440 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178859 ], "weight": 6, "year": 1979, "pin_cites": [ { "page": "9", "parenthetical": "quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789 (1974); Konigsberg v. State Bar, 366 U.S. 36, 49, 6 L. Ed. 2d 105 (1961)" }, { "page": "110", "parenthetical": "quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789 (1974); Konigsberg v. State Bar, 366 U.S. 36, 49, 6 L. Ed. 2d 105 (1961)" }, { "page": "11" }, { "page": "13" }, { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/us/440/0001-01" ] }, { "cite": "579 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491728 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0152-01" ] }, { "cite": "569 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "12", "parenthetical": "J. Tyson dissenting" }, { "page": "12" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249906 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "284", "parenthetical": "J. Tyson dissenting" }, { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0269-01" ] }, { "cite": "458 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915685 ], "year": 1995, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0420-01" ] }, { "cite": "507 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "900", "parenthetical": "appellate court review" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200473 ], "year": 1998, "pin_cites": [ { "page": "405", "parenthetical": "appellate court review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0404-01" ] }, { "cite": "406 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "616-17", "parenthetical": "superior court review" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522023 ], "year": 1991, "pin_cites": [ { "page": "532", "parenthetical": "superior court review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0527-01" ] }, { "cite": "608 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2005, "pin_cites": [ { "page": "839", "parenthetical": "citing Rector v. N.C. Sheriffs' Educ. and Training Standards Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616-17 (1991) (superior court review)" }, { "page": "839", "parenthetical": "internal quotations and citations omitted" }, { "page": "839" }, { "page": "839" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471263 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "608", "parenthetical": "citing Rector v. N.C. Sheriffs' Educ. and Training Standards Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616-17 (1991) (superior court review)" }, { "page": "609" }, { "page": "609" }, { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0598-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "894", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "658", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "230 F. Supp. 2d 1147", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9325592 ], "year": 2002, "pin_cites": [ { "page": "1154", "parenthetical": "State failed to show that a rule prohibiting an attorney from using the trade names \"Your Legal Power\" and \"Su Poder Legal,\" directly advanced the State's interest" } ], "opinion_index": 1, "case_paths": [ "/f-supp-2d/230/1147-01" ] }, { "cite": "507 U.S. 761", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6238494 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "770" }, { "page": "555" } ], "opinion_index": 1, "case_paths": [ "/us/507/0761-01" ] }, { "cite": "425 U.S. 748", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182253 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "770" }, { "page": "363" } ], "opinion_index": 1, "case_paths": [ "/us/425/0748-01" ] }, { "cite": "447 U.S. 557", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6186683 ], "weight": 5, "year": 1980, "pin_cites": [ { "page": "563-64", "parenthetical": "internal citations omitted" }, { "page": "349", "parenthetical": "internal citations omitted" }, { "page": "563-64" }, { "page": "349-50" } ], "opinion_index": 1, "case_paths": [ "/us/447/0557-01" ] } ], "analysis": { "cardinality": 990, "char_count": 26792, "ocr_confidence": 0.749, "pagerank": { "raw": 3.6856254361847664e-07, "percentile": 0.8919547046951386 }, "sha256": "69df9446af3df2474a0c04ed3bf001c809dbf6492040cc9d1a97d85d936ecb26", "simhash": "1:1ffbca1e33162e54", "word_count": 4308 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge WYNN dissents." ], "parties": [ "McGLADREY & PULLEN, LLP, Petitioner v. NORTH CAROLINA STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANT EXAMINERS, Respondent" ], "opinions": [ { "text": "TYSON, Judge.\nMcGladrey & Pullen, LLP (\u201cpetitioner\u201d) appeals from order adopting and affirming the declaratory ruling issued by The North Carolina State Board of Certified Public Accountant Examiners (the \u201cBoard\u201d). We affirm.\nI. Background\nPetitioner is a North Carolina limited liability partnership and licensed by the Board to practice in North Carolina as a certified public accounting (\u201cCPA\u201d) firm. Petitioner specializes in providing audit and attest services for mid-sized businesses. Petitioner is affiliated with RSM McGladrey, Inc., a national consulting, wealth management, and corporate finance firm, through an \u201cAlternative Business Structure.\u201d\nRSM McGladrey, Inc. is a member of RSM International, Inc., a subsidiary of H&R Block. \u201cRSM\u201d is an acronym for Robson Rhodes, a United Kingdom firm, Salustro Reydel, a firm in France, and petitioner.\nIn Fall 2002, petitioner sought to change its name from \u201cMcGladrey & Pullen, LLP\u201d to \u201cRSM McGladrey & Pullen, LLP, Certified Public Accountants.\u201d Petitioner gave notice of intent to change its name to each jurisdiction in which it was registered.\nOn 1 October 2002, Robert N. Brooks, the Board\u2019s executive director, recommended petitioner\u2019s name change request be rejected on the grounds the initials \u201cRSM\u201d could deceive the public by conveying the impression that any firm using a name that begins with \u201cRSM\u201d is a lawful CPA firm.\nOn 11 March 2003, petitioner submitted its request to the full Board for a declaratory ruling. By letter dated 2 May 2003, the Board informed petitioner that the Board adopted the declaratory ruling on 28 April 2003 denying petitioner\u2019s request and ruling petitioner\u2019s proposed name change to \u201cRSM McGladrey & Pullen, LLP, Certified Public Accountants\u201d violated N.C. Admin. Code. Tit. 21, 8N.0307.\nOn 30 May 2003, petitioner filed a petition in the Wake County Superior Court for judicial review. The petition was heard on 26 February 2004 and on 18 March 2004, the trial court entered an order affirming the Board\u2019s declaratory ruling. Petitioner appeals.\nII. Issues\nPetitioner contends the trial court erred by: (1) violating petitioner\u2019s right to free speech and equal protection under the North Carolina and United States Constitutions; (2) affirming the declaratory ruling of the Board after it acted outside of its statutory authority and jurisdiction in violation of N.C. Gen. Stat. \u00a7 150B-51(b)(2); and (3) being arbitrary and capricious in affirming the Board\u2019s ruling.\nIII. Standard of Review\nUpon our \u201cjudicial review of an administrative agency\u2019s final decision, the substantive nature of each assignment of error dictates the standard of review.\u201d N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) (citations omitted). N.C. Gen. Stat. \u00a7 150B-51(b) (2003) states:\nin reviewing a final decision, the court may affirm the decision of the agency or remand the case to the agency or to the administrative law judge for further proceedings. It may also reverse or modify the agency\u2019s decision, or adopt the administrative law judge\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(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\n(6) Arbitrary, capricious, or an abuse of discretion.\n\u201cThis standard of review applies to judicial review of an agency\u2019s decision, whether at the superior or the appellate court level.\u201d Vanderburg v. N.C. Dep\u2019t of Revenue, 168 N.C. App. 598, 608, 608 S.E.2d 831, 839 (2005) (citing Rector v. N.C. Sheriffs\u2019 Educ. and Training Standards Comm., 103 N.C. App. 527, 532, 406 S.E.2d 613, 616-17 (1991) (superior court review)); see also Crist v. City of Jacksonville, 131 N.C. App. 404, 405, 507 S.E.2d 899, 900 (1998) (appellate court review) (citing Shoney\u2019s v. Bd. of Adjustment for City of Asheville, 119 N.C. App. 420, 421, 458 S.E.2d 510, 511 (1995)).\nThis Court has held that fact-intensive issues\n\u201c \u2018such as sufficiency of the evidence to support [an agency\u2019s] decision are reviewed under the whole-record test.\u2019 \u201d This standard of review requires the reviewing court to analyze all the evidence provided in the record \u201cto determine whether there is substantial evidence to justify the agency\u2019s decision.\u201d Substantial evidence is \u201crelevant evidence a reasonable mind might accept as adequate to support a conclusion.\u201d A reviewing court \u201cmay not substitute its judgment for the agency\u2019s,\u201d even if a different conclusion may result under a whole record review.\nVanderburg, 168 N.C. App. at 609, 608 S.E.2d at 839 (internal quotations and citations omitted).\nIn In re Appeal of the Maharishi Spiritual Ctr. of Am., our Supreme Court revered the Court of Appeals for reasons stated in the dissenting opinion and explained the Court\u2019s proper role under the whole record test when reviewing an administrative agency\u2019s ruling or judgment.\nThe whole record test is not \u201ca tool of judicial intrusion.\u201d This test does not allow a reviewing court to substitute its own judgment in place of the Commission\u2019s judgment even when there are two reasonably conflicting views. The whole record test merely allows a reviewing court to determine whether the decision of the Commission is supported by substantial evidence.\n\u201c \u2018Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d \u201cThe credibility of the witnesses and resolution of conflicting testimony is a matter for the administrative agency to determine.\u201d This Court cannot overturn the Commission\u2019s decision if supported by substantial evidence.\n152 N.C. App. 269, 284, 569 S.E.2d 3, 12 (2002) (J. Tyson dissenting) (internal quotations and citations omitted), per curiam rev\u2019d, 357 N.C. 152, 579 S.E.2d 249 (2003).\nIV. Free Speech\nPetitioner argues the trial court erred in affirming the Board\u2019s declaratory ruling because it violated petitioner\u2019s constitutional freedom of speech.\n\u201c \u2018Untruthful speech, commercial or otherwise, has never been protected for its own sake.\u2019 \u201d Friedman v. Rogers, 440 U.S. 1, 9, 59 L. Ed. 2d 100, 110 (1979) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789 (1974); Konigsberg v. State Bar, 366 U.S. 36, 49, 6 L. Ed. 2d 105 (1961)). In Central Hudson Gas v. Public Service Comm\u2019n, the United States Supreme Court defined commercial speech as an \u201cexpression related solely to the economic interests of the speaker and its audience.\u201d 447 U.S. 557, 563-64, 65 L. Ed. 2d 341, 348 (1980) (citing Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762, 48 L. Ed. 2d 346 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-64, 53 L. Ed. 2d 810 (1977); Friedman v. Rogers, 440 U.S. 1, 11, 59 L. Ed. 2d 100 (1979)).\nThe United States Supreme Court also held \u201cthe First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation.\u201d Central Hudson Gas, 447 U.S. at 563-64, 65 L. Ed. 2d at 348 (citing Virginia Pharmacy Bd, 425 U.S. at 761-63, 48 L. Ed. 2d at 346). The Supreme Court explained:\nThe First Amendment\u2019s concern for commercial speech is based on the informational function of advertising. Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity. If the communication is neither misleading nor related to unlawful activity, the government\u2019s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech.\nId. at 564-65, 65 L. Ed. 2d 348-49 (internal citations omitted) (emphasis supplied).\nThe respondent Board is a State agency created by N.C. Gen. Stat. \u00a7 93-12 to regulate CPA firms. One of the Board\u2019s duties is to regulate the manner in which CPA firms hold themselves out to the public. N.C. Admin. Code tit. 21, 8N.0307(a) (2004) entitled, \u201cDeceptive Names Prohibited,\u201d allows the Board to prohibit a CPA firm from using any name that would have \u201cthe capacity or tendency to deceive.\u201d\nThe parties agree the regulation at issue restricts petitioner\u2019s commercial speech. The parties disagree on whether adding \u201cRSM\u201d and \u201cCertified Public Accountants\u201d to petitioner\u2019s trade name is misleading, tends to be deceptive, and whether the regulation as applied, violates petitioner\u2019s First Amendment rights.\nEvidence before the Board included: (1) a U.S. federal claims court case wherein a managing director of RSM McGladrey, Inc. testified and was referred to as an expert in auditing; and (2) several filings with the Securities and Exchange Commission showing the public misperception and referring to \u201cRSM McGladrey\u201d as a public accounting firm and confusing ownership and services rendered by the firm.\nThe Board may \u201cban forms of communication more likely to deceive the public than to inform it.\u201d Central Hudson Gas, 447 U.S. at 563, 65 L. Ed. 2d at 349 (citing Friedman, 440 U.S. at 13, 59 L. Ed. 2d at 113; Olralik v. Ohio State, Bar Assn., 436 U.S. 447, 464-65, 56 L. Ed. 2d 444, 461 (1978)). The Board exercised its discretion under its statutory authority to determine what firm names are acceptable. N.C. Admin. Code. tit. 21, 8N.0307(a). We may not substitute our judgment for the agency\u2019s and must only look to see if there is substantial evidence to support their conclusion. Watkins v. N. C. State Bd. of Dental Exam\u2019rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004). The Board considered and found relevant and substantial evidence tending to show petitioner\u2019s proposed name could be confusing and deceptive and determined petitioner\u2019s proffered firm name is deceptive to the general public. Central Hudson Gas, 447 U.S. at 563-64, 65 L. Ed. 2d at 349.\nPetitioner fails to show the Board\u2019s findings of fact are not supported by substantial evidence and those findings do not support the court\u2019s conclusions of law. The trial court\u2019s holding that the Board did not violate petitioner\u2019s freedom of speech under the United States or North Carolina Constitutions is affirmed.\nV. Equal Protection\nPetitioner alleges the names \u201cRSM McGladrey Inc.\u201d and \u201cRSM McGladrey & Pullen L.L.P. Certified Public Accountants\u201d are not deceptive or misleading. Petitioner asserts the Board failed to apply its standard of review equally.\n\u201cInequalities and classifications, however, do not, per se, render a legislative enactment unconstitutional.\u201d Cheek v. City of Charlotte, 273 N.C. 293, 298, 160 S.E.2d 18, 23 (1968) (citing Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949); 2 Strong, N.C. Index 2d, Constitutional Law \u00a7 20 (1967)). Our Supreme Court has held \u201c[classifications are not offensive to the Constitution \u2018when the classification is based on a reasonable distinction and the law is made to apply uniformly to all the members of the class affected.\u2019 \u201d Poor Richard\u2019s, Inc. v. Stone, 322 N.C. 61, 67, 366 S.E.2d 697, 700-01 (1988) (quoting Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968)). The Court also held \u201c[c]lassification[s] [are] permitted when (1) it is based on differences between the business to be regulated and other businesses and (2) when these differences are rationally related to the purpose of the legislation.\u201d Id. at 67, 366 S.E.2d at 701 (citing State v. Harris, 216 N.C. 746, 65 S.E.2d 854 (1940)).\nPetitioner argues it received unequal review and treatment from the Board and cites the Board\u2019s approval of Grant Thornton as a trade name in 2002. The Board\u2019s rulings in Grant Thornton\u2019s case and petitioner\u2019s case are easily distinguishable.\nGrant Thornton is a long established CPA firm in North Carolina and was using its approved trade name prior to 1999. Grant Thornton continued its operation as a CPA firm with the \u201cGrant Thornton\u201d name. \u201cRSM McGladrey & Pullen, LLP Certified Public Accountants\u201d is not a long established CPA firm in North Carolina. RSM is not an individual CPA nor is it a licensed CPA firm in any state or United States territory. Petitioner\u2019s proposed name change occurred after the grand-fathering provision established in 1999 to allow continued use of existing trade names expired.\nThe Board\u2019s regulation allowing grand-fathering of trade names is based on criteria that petitioner does not meet. N.C. Admin. Code tit. 21, 8N.0307(c) (2004) states any CPA firm that has continuously used an assumed name approved by the Board prior to 1 April 1999 may continue to use the assumed name subject to certain restrictions. Furthermore, petitioner concedes that RSM International, Inc.\u2019s status is different from the \u201cBig Four\u201d accounting firms. RSM International, Inc. is a non-CPA association and not a national or international CPA firm.\nPetitioner fails to show the evidence before the Board and the record before the trial court lacked substantial evidence to support the Board\u2019s findings of fact, or that those findings support the Board\u2019s conclusions of law. Vcmderburg, 168 N.C. App. at 609, 608 S.E.2d at 839. Petitioner fails to proffer evidence of a similarly situated firm that received unlawful preferential treatment or treatment inconsistent with the Board\u2019s decision in petitioner\u2019s case. Poor Richard\u2019s, Inc., 322 N.C. at 67, 366 S.E.2d at 700-01. We affirm the trial court\u2019s holding that the Board did not violate petitioner\u2019s constitutional right of equal protection.\nVI. Statutory Authority of the Board\nPetitioner alleges the trial court erred by finding the Board acted within its statutory authority. The Board is established and promulgated by N.C. Gen. Stat. \u00a7 93-12. This State agency is charged, in part, with certifying and licensing CPAs and adopting or issuing guidelines for their conduct. The Board adopted guidelines for the names CPA firms could use in holding themselves out to the public:\n(a) Deceptive Names Prohibited. A CPA or CPA firm shall not trade upon the CPA title through use of any name that would have the capacity or tendency to deceive ....\n(b) Style of Practice. It is considered misleading if a CPA firm practices under a name or style which would tend to imply the existence of a partnership or registered limited liability partnership or a professional corporation or professional limited liability company of more than one CPA shareholder or CPA member or an association when in fact there is no partnership nor is there more than one CPA shareholder or CPA member of a CPA firm. For example, no CPA firm having just one CPA owner may have as a part of its name the words \u201cassociates\u201d or \u201ccompany\u201d or their abbreviations. It is also considered misleading if a CPA renders non-attest professional services through a non-CPA firm using a name that implies any non-licensees are CPAs.\n(c) Any CPA firm that has continuously used an assumed name approved by the Board prior to April 1, 1999, may continue to use the assumed name, so long as the CPA firm is only owned by the individual practitioner, partners, or shareholders who obtained Board approval for the assumed name. A CPA firm (or a successor firm by sale, merger, or operation of law) may continue to use the surname of a retired or deceased partner or shareholder in the CPA firm\u2019s name so long as that use is not deceptive.\nN.C. Admin. Code tit. 21, 8N.0307(a)-(c) (2004).\nPetitioner appeals the trial court\u2019s decision affirming the Board\u2019s finding the proposed firm name \u201cRSM\u201d was misleading to the public. The Board possesses the authority to regulate CPA firms and CPA firm names. N.C. Gen. Stat. \u00a7 93-12 (2003); N.C. Admin. Code tit. 21, 8N.0307. The Board promulgates rules and guidelines to regulate whether an offered firm name is deceptive to the general public. Id,.] see also N.C. Admin. Code tit. 21, 8N.0307. The Board determines if firm names are acceptable or deceptive. Id.; N.C. Admin. Code tit. 21, 8N.0307. Substantial evidence in the record supports the Board\u2019s findings that petitioner\u2019s proposed name could be deceptive to the public. Vanderburg, 168 N.C. App. at 609, 608 S.E.2d at 839; see also Central Hudson Gas., 447 U.S. at 563-64, 65 L. Ed. 2d at 349 (The government may ban commercial speech that is \u201clikely to deceive.\u201d).\nPetitioner fails to show the trial court\u2019s conclusion that its proposed trade name could be deceptive is not supported by substantial evidence. The trial court\u2019s holding that the Board acted within its statutory jurisdiction and authority is affirmed.\nVIL Arbitrary and Capricious\nDefendant asserts the trial court acted in an arbitrary and capricious manner in affirming the Board\u2019s ruling.\nWhere an allegation is made that a final agency decision is not supported by competent evidence or is arbitrary and capricious, the trial court must review the decision under the whole record test. The whole record test requires the trial court to examine all of the evidence before the agency in order to determine whether the decision has a rational basis in the evidence. If the trial court concludes there is substantial competent evidence in the record to support the findings, the agency decision must stand. The trial court may not weigh the evidence presented to the agency or substitute its own judgment for that of the agency.\nClark Stone Co. v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 164 N.C. App. 24, 31-32, 594 S.E.2d 832, 837 (2004) (internal citations omitted).\nWe previously held substantial evidence supports the findings of fact and conclusions of law of the Board\u2019s ruling and the trial court\u2019s order. After reviewing the whole record and finding substantial evidence, we hold the trial court did not act in an arbitrary and capricious manner in affirming the Board\u2019s ruling. This assignment of error is overruled.\nVIII. Conclusion\nPetitioner fails to show the findings of fact and conclusions of law of the trial court are not supported by substantial evidence. Neither this Court nor the trial court may substitute our own judgment for that of the Board where the record shows substantial evidence supports their decision.\nThe State, through the Board, may regulate deceptive commercial speech. Regulation of deceptive commercial speech does not violate petitioner\u2019s freedom of speech. Central Hudson Gas, 447 U.S. at 563, 65 L. Ed. 2d at 349. Substantial evidence in the whole record supports the Board\u2019s unchallenged findings of fact, which in turn supports the Board\u2019s conclusions of law that petitioner\u2019s proposed name had \u201cthe capacity or tendency to deceive.\u201d N.C. Admin. Code tit. 21, 8N.0307.\nPetitioner fails to present any evidence that the Board treated another company similarly situated to petitioner differently or provided preferential treatment in violation of its equal protection rights.\nThe burden of proof is not on the administrative agency or the Board to justify its decision, but rather it rests upon the petitioner to show the Boards\u2019s \u201cfindings and conclusions are unsupported by competent, material, and substantial evidence.\u201d In re Appeal of Maharishi Spiritual Ctr. of Am., 152 N.C. App. at 284, 569 S.E.2d at 12. Petitioner cannot shift its burden on appeal to the Board utilizing extraneous comments made during the hearing by a Board member as a basis to reverse the Board\u2019s unchallenged findings of fact under our standard of review.\nThe trial court\u2019s findings of fact and conclusions of law are supported by substantial evidence in the whole record and are not arbitrary or capricious. Petitioner failed to show any abuse of discretion. The trial court\u2019s order is affirmed.\nAffirmed.\nJudge ELMORE concurs.\nJudge WYNN dissents.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge\ndissenting.\nIn this case, the North Carolina State Board of Certified Public Accountant Examiners (\u201cCPA Board\u201d) prohibits McGladrey & Pullen, LLP (\u201cMcGladrey & Pullen\u201d) from changing its name to \u201cRSM McGladrey & Pullen, LLP, Certified Public Accountants.\u201d In denying this name change, the CPA Board cited N.C. Admin. Code tit. 21, r. 8N.0307(a) (Mar. 2003) which provides,\nA CPA or CPA firm shall not trade upon the CPA title through use of any name that would have the capacity or tendency to deceive.\nMcGladrey & Pullen argues that the CPA Board has failed to meet its burden to show that the proposed name will mislead or deceive the public and, therefore, violates its right to free speech. I agree that the CPA Board has failed to show how the name will be misleading or deceiving. Accordingly, I respectfully dissent.\nThe United States Supreme Court has long held that \u201ccommercial speech\u201d is protected by the First Amendment of the United States Constitution. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 770, 48 L. Ed. 2d 346, 363 (1976). The government may ban forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm\u2019n of N.Y., 447 U.S. 557, 563-64, 65 L. Ed. 2d 341, 349 (1980) (internal citations omitted).\nIn Cent. Hudson Gas & Elec. Corp., the United States Supreme Court set out three prongs the State must meet to validly restrict commercial speech: (1) \u201cThe State must assert a substantial interest to be achieved by restrictions on commercial speech[;]\u201d (2) \u201cthe restriction must directly advance the state interest involved[;]\u201d and (3) \u201cif the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.\u201d Id., 65 L. Ed. 2d at 349-50.\nMcGladrey & Pullen acknowledges that the CPA Board has a \u201csubstantial interest in protecting the public from misleading and deceptive names and advertising by CPAs[,]\u201d meeting the first prong of the Cent. Hudson Gas & Elec. Corp. test. But McGladrey & Pullen argues that the CPA Board failed to meet the second prong, because the proposed name is not deceptive or misleading and the CPA Board\u2019s asserted harms are merely speculative. I agree.\nThe second prong of the Cent. Hudson Gas & Elec. Corp. test \u201cis not satisfied by mere speculation or conjecture[.]\u201d Edenfield v. Fane, 507 U.S. 761, 770, 123 L. Ed. 2d 543, 555 (1993). In the CPA Board\u2019s declaratory ruling denying the name change, it stated \u201cthe use of \u2018RSM\u2019 in the name of the firm would have the capacity or tendency to deceive the public by giving the impression that any firm using a name that begins with \u2018RSM,\u2019 regardless of the nature of the firm, is a lawful CPA firm.\u201d But this is not a concrete reason for the restriction; instead, it is merely conjecture. Indeed, the record shows that a CPA board member stated, \u201cI think it\u2019s important to note that whether it\u2019s deceitful or not, we didn\u2019t \u2014 we don\u2019t believe that. It\u2019s just that it gets caught in the language of our rules more than anything else.\u201d This cannot satisfy the second prong of the Cent. Hudson Gas & Elec. Corp. test, as there was merely a speculative reason that the CPA Board denied the proposed name change. See, e.g., Michel v. Bare, 230 F. Supp. 2d 1147, 1154 (D. Nev. 2002) (State failed to show that a rule prohibiting an attorney from using the trade names \u201cYour Legal Power\u201d and \u201cSu Poder Legal,\u201d directly advanced the State\u2019s interest).\nMoreover, the CPA Board\u2019s emphasis on the addition of three letters, \u201cRSM\u201d, ignored the addition of the words \u201cCertified Public Accountants\u201d to the end of the proposed name change. Indeed, the proposed name of \u201cRSM McGladrey & Pullen, LLP, Certified Public Accountants\u201d when compared to \u201cRSM McGladrey, Inc.\u201d would be less misleading than the current name of \u201cMcGladrey & Pullen, LLP.\u201d As McGladrey & Pullen points out, the word \u201cMcGladrey\u201d has been used in both names for five years without prohibition, and there is no evidence that the public has been deceived by those names.\nIn sum, I would hold that the CPA Board\u2019s denial of McGladrey & Pullen\u2019s proposed name change impermissibly restricted McGladrey & Pullen\u2019s right to free speech under the First Amendment of the United States Constitution. Cent. Hudson Gas & Elec. Corp., 447 U.S. at 563-64, 65 L. Ed. 2d at 349-50. Accordingly, I respectfully dissent from the majority opinion and would reverse the trial court\u2019s order.", "type": "dissent", "author": "WYNN, Judge" } ], "attorneys": [ "Parker Poe Adams & Bernstein, LLP, by William L. Rikard, Jr., R. Bruce Thompson, III, and Deborah L. Edney, for petitioner-appellant.", "Allen and Pinnix, P.A., by Noel L. Allen and M. Jackson Nichols, for respondent-appellee." ], "corrections": "", "head_matter": "McGLADREY & PULLEN, LLP, Petitioner v. NORTH CAROLINA STATE BOARD OF CERTIFIED PUBLIC ACCOUNTANT EXAMINERS, Respondent\nNo. COA04-911\n(Filed 19 July 2005)\n1. Accountants and Accounting\u2014 name of CPA firm \u2014 right of free speech\nPetitioner\u2019s right to free speech was not violated by the Board of Certified Public Accountant Examiners\u2019 denial of its request to change its name to \u201cRSM McGladrey & Pullen, LLP, Certified Public Accountants.\u201d The Board considered and found relevant and substantial evidence tending to show that petitioner\u2019s proposed name could be confusing and deceptive and that petitioner\u2019s proffered firm name is deceptive to the general public.\n2. Accountants and Accounting\u2014 CPA firm name change\u2014 equal protection\nThe trial court correctly held that the Board of Certified Public Accountant Examiners did not violate petitioner\u2019s constitutional right of equal protection by refusing its name change. Petitioner failed to offer evidence of a similarly situated firm that received unlawful preferential treatment or treatment inconsistent with the Board\u2019s decision in petitioner\u2019s case.\n3. Accountants and Accounting\u2014 name of CPA firm \u2014 change denied \u2014 statutory authority\nThe trial court correctly held that the Board of Certified Public Accountant Examiners acted within its statutory authority in denying petitioner\u2019s name change. The Board possesses the statutory authority to regulate CPA firm names, and there was substantial evidence supporting the Board\u2019s findings that petitioner\u2019s proposed name could be deceptive to the public.\n4. Accountants and Accounting\u2014 name of CPA firm \u2014 change denied \u2014 not arbitrary and capricious\nThe trial court was not arbitrary and capricious in affirming the Board of Certified Public Accountant Examiners\u2019 ruling denying petitioner\u2019s proposed name change.\nJudge Wynn dissenting.\nAppeal by petitioner from order entered 18 March 2004 by Judge Orlando F. Hudson, Jr., in Wake County Superior Court. Heard in the Court of Appeals 12 April 2005.\nParker Poe Adams & Bernstein, LLP, by William L. Rikard, Jr., R. Bruce Thompson, III, and Deborah L. Edney, for petitioner-appellant.\nAllen and Pinnix, P.A., by Noel L. Allen and M. Jackson Nichols, for respondent-appellee." }, "file_name": "0610-01", "first_page_order": 640, "last_page_order": 652 }