{ "id": 4174829, "name": "ANGELIQUE THOMPSON, Petitioner v. NORTH CAROLINA RESPIRATORY CARE BOARD, Respondent", "name_abbreviation": "Thompson v. North Carolina Respiratory Care Board", "decision_date": "2010-02-02", "docket_number": "No. COA09-599", "first_page": "340", "last_page": "345", "citations": [ { "type": "official", "cite": "202 N.C. App. 340" } ], "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": "657 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640575 ], "year": 2008, "pin_cites": [ { "page": "722", "parenthetical": "quoting In re Rulemaking Petition of Wheeler, 85 N.C. App. 150, 153, 354 S.E.2d 374, 376 (1987)" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0719-01" ] }, { "cite": "726 A.2d 887", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 777279 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/md-app/125/0745-01" ] }, { "cite": "549 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438328 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/145/0434-01" ] }, { "cite": "450 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525100 ], "year": 1994, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0270-01" ] }, { "cite": "460 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "206", "parenthetical": "quoting Landfall Group v. Landfall Club, Inc., 117 N.C. App. 270, 273, 450 S.E.2d 513, 515 (1994)" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 739", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917433 ], "year": 1995, "pin_cites": [ { "page": "744", "parenthetical": "quoting Landfall Group v. Landfall Club, Inc., 117 N.C. App. 270, 273, 450 S.E.2d 513, 515 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0739-01" ] }, { "cite": "354 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "376" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169685 ], "year": 1987, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0150-01" ] }, { "cite": "189 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156255 ], "year": 2008, "pin_cites": [ { "page": "136", "parenthetical": "quoting In re Rulemaking Petition of Wheeler, 85 N.C. App. 150, 153, 354 S.E.2d 374, 376 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0131-01" ] }, { "cite": "572 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "187", "parenthetical": "internal quotations omitted" }, { "page": "279" }, { "page": "191", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249742 ], "year": 2002, "pin_cites": [ { "page": "273", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0270-01" ] } ], "analysis": { "cardinality": 560, "char_count": 11357, "ocr_confidence": 0.759, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3398047530956438 }, "sha256": "2fd7edcbda0d8f3f8f94927ccb083c6e9f6b5827fb900781f6fe21bf1f291d04", "simhash": "1:138dc08874870e38", "word_count": 1784 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and CALABRIA concur." ], "parties": [ "ANGELIQUE THOMPSON, Petitioner v. NORTH CAROLINA RESPIRATORY CARE BOARD, Respondent" ], "opinions": [ { "text": "BEASLEY, Judge.\nNorth Carolina Respiratory Care Board (Board) appeals an order affirming in part and modifying in part, the Board\u2019s Final Agency Decision and Order. For the following reasons, we reverse.\nAngelique Thompson (Thompson) is a licensed respiratory care practitioner in North Carolina who obtained her licence to practice in July 2004. In September 2005, she began working at Eight\u2019s Medical Corporation, a durable medical equipment company that provides home care. Some of Thompson\u2019s duties included setting up patients on various types of respiratory equipment, such as CPAPs, BiPAPS, ventilators, and apnea monitors.\nOn 16 July 2006, Thompson\u2019s license to practice respiratory care expired, but she did not renew it until 10 August 2006. During this time, she continued to work for Eight\u2019s Medical Corporation. In September 2006, upon receiving the application for Thompson\u2019s license renewal, the Board sent Thompson a letter stating that they had \u201creceived a complaint concerning [her] practice of Respiratory Care.\u201d The letter informed Thompson that the Board believed that there was \u201csufficient credible information to begin an investigation\u201d concerning a possible violation for practicing without a license. In January 2007, Thompson attended a meeting with the Board\u2019s Investigation and Informal Settlement Committee.\nThompson signed a Consent Order with the Board acknowledging that she had practiced Respiratory Care without a license and agreed to pay civil penalties and costs related to the disciplinary action. Thereafter, Thompson did not pay the fines or costs and appealed the consent order. Thompson stated that \u201cdue to a mistake in information[,]\u201d she had realized after the meeting that she did not provide any respiratory care during the applicable time period.\nThe Board referred the matter to the Office of Administrative Hearings and an Administrative Law Judge (ALJ) conducted a hearing in January 2008. The ALJ made the following conclusions of law, in pertinent part:\nSince the Reprimand and the $250.00 in civil penalties and $100.00 in costs were based on [Thompson\u2019s] mistaken agreement to the Consent Order, the Consent Order is not a sufficient basis for upholding those sanctions.\n[Thompson\u2019s actions] on July 17, 2006 . .. did constitute the practice of respiratory care, as defined in the Board\u2019s Rules, because it constituted \u201cpatient instruction in respiratory care, functional training in self-care and home respiratory care management, and the promotion and maintenance of respiratory care fitness, health, and quality of life. . . .\nOther than the apnea monitor service which [Thompson] provided on July 17, 2006, the Board has not met its burden to show by a preponderance of the evidence that [Thompson] provided respiratory care to patients while her license was lapsed from July 17, 2006 to August 10, 2006. The evidence in this case shows that the apnea monitor incident on July 17, 2006 was an isolated incident, not committed with knowledge by [Thompson] that it did or could constitute the practice of respiratory care. The evidence does not demonstrate a pattern of conduct on the part of [Thompson] warranting discipline.\nThe administrative law judge made a Proposal for Decision, concluding that:\nthe [Board] reverse its previous decision to order [Thompson] to pay $250.00 in civil penalties and $100.00 in costs, remove any record or indication of this action from [Thompson\u2019s] record with the Board, including but not limited to the public web page reference to same, and also take all necessary measures to remove any record or indication of this action with any other entity, including but not limited to the Healthcare Integrity and Protection Data Bank and the National Databank maintained by the National Board for Respiratory Care.\nThe Board issued a Final Agency Decision, adopting the ALJ\u2019s Proposal for Decision. Subsequently, Thompson filed a Petition for Judicial Review of the Board\u2019s Final Agency Decision. Thompson only requested review of the Board\u2019s conclusions of law numbers 4 and 5, which addressed Thompson\u2019s delivery, set up, and instruction on the use of an apnea monitor. Conclusions of law 4 and 5 determined that Thompson had practiced respiratory care, but that the \u201cevidence [did] not demonstrate . . . conduct on the part of [Thompson] warranting discipline.\u201d The Board responded to Thompson\u2019s Petition for Judicial Review by requesting that the trial court dismiss Thompson\u2019s claims on the grounds that Thompson failed to show that she was a person aggrieved under N.C. Gen. Stat. \u00a7 150B-43 and argued, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, that she failed to state a claim.\nFollowing a hearing in December 2008, the trial court issued an Order allowing Thompson\u2019s Petition for Judicial Review and affirming the Board\u2019s Final Agency Decision. However, the trial court made two modifications of the Board\u2019s conclusions of law. First, the trial court concluded that the delivery of the apnea monitor and associated instructions that Thompson gave on 17 July 2006 did not constitute the practice of respiratory care. Secondly, the trial court concluded that because the Board had not met its burden, showing that Thompson provided respiratory care to patients while her license lapsed, Thompson\u2019s conduct did not warrant discipline. From this Order, the Board appeals.\n\u201cWhen the petitioner contends the agency decision was affected by error of law . . . de novo review is the proper standard[.]\u201d Skinner v. N.C. Dep\u2019t of Corr., 154 N.C. App. 270, 273, 572 S.E.2d 184, 187 (2002) (internal quotations omitted). \u201c De novo\u2019 review requires a court to consider a question anew, as if not considered or decided by the agency.\u201d Id. at 279, 572 S.E.2d at 191 (internal quotations omitted).\nThe Board argues that the trial court erred by determining that Thompson had standing to file a Petition for Judicial Review. The Board contends that Thompson is not a person aggrieved because she was not required to pay any civil penalty or costs to the Board,' was not reprimanded by the Board, and her \u201cperson, property, or employment\u201d was not substantially affected. We agree.\nUnder N.C. Gen. Stat. \u00a7 150B-43 (2009), \u201c[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article[.]\u201d In order to have standing under this statute, \u201c \u2018(1) the petitioner must be an aggrieved party, (2) there must be a final agency decision; (3) the decision must result from a contested case; (4) the petitioner must have exhausted all administrative remedies; and (5) there must be no other adequate procedure for judicial party.\u2019 \u201d Steward v. Green, 189 N.C. App. 131, 136, 657 S.E.2d 719, 722 (2008) (quoting In re Rulemaking Petition of Wheeler, 85 N.C. App. 150, 153, 354 S.E.2d 374, 376 (1987)) (emphasis added). A \u201c \u2018[p]erson aggrieved\u2019 means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision.\u201d N.C. Gen. Stat. \u00a7 150B-2(6) (2009). Our Court has defined standing as a \u201c \u2018distinct and palpable injury likely to be redressed by granting the requested relief.\u2019 \u201d Love v. Tyson, 119 N.C. App. 739, 744, 460 S.E.2d 204, 206 (1995) (quoting Landfall Group v. Landfall Club, Inc., 117 N.C. App. 270, 273, 450 S.E.2d 513, 515 (1994)).\nThompson argues that under Smith v. Smith, 145 N.C. App. 434, 549 S.E.2d 912 (2001), the determination by the Board that Thompson practiced respiratory care without a license would substantially affect her person, property, or employment. In Smith, a domestic violence protective order against the defendant expired prior to the time of his appeal. Our Court held that because the defendant \u201cmay suffer collateral legal consequences as a result of the entry of the order[,]\u201d that his appeal had \u201ccontinued legal significance and [was] not moot.\u201d Id. at 436-37, 549 S.E.2d at 914. Our Court also held that:\n[i]n addition to the collateral legal consequences, there are numerous non-legal collateral consequences to entry of a domestic violence protective order that render expired orders appeal-able. For example, a Maryland appellate court in addressing an appeal of an expired domestic violence protective order, noted that \u201ca person applying for a job, a professional license, a government position, admission to an academic institution, or the like, may be asked about whether he or she has been the subject of a [domestic violence protective order].\u201d Piper v. Layman, 726 A.2d 887, 891 (Md. Ct. Spec. App. 1999). The Piper court, therefore, held appeals from expired domestic violence protective orders are not moot because of the \u201cstigma that is likely to attach to a person judicially determined to have committed [domestic] abuse.\u201d Id.\nId.\nIn the present case, however, Thompson\u2019s interest in her person, property, or employment have not been affected substantially by the action of the Board. She was not required to pay any monetary penalties as the Board\u2019s Final Agency Decision reversed its previous decision, which had ordered Thompson to pay civil penalties and costs. There is also no indication that Thompson\u2019s present employment was substantially affected by the Board\u2019s decision. The Final Agency Decision not only specified that \u201cany record or indication of the previous decision\u201d with the Board would be removed, but that any record or indication of the previous decision with \u201cany other entity\u201d would be removed as well. In contrast to the Smith case, there would be no record of the Board\u2019s decision to substantially affect Thompson\u2019s future employment. The \u201cnon-legal collateral consequences\u201d and \u201cstigma\u201d referred to in Smith does not apply to our present case.\nBecause Thompson is not an \u201caggrieved party\u201d under N.C. Gen. Stat. \u00a7 150B-43, she did not have standing to petition the Superior Court for judicial review under the statute. Therefore, the Superior Court erred by granting Thompson\u2019s Petition for Judicial Review and did not have subject matter jurisdiction to make its determinations. Accordingly, we do not reach the Board\u2019s remaining arguments.\nFor the foregoing reasons, we reverse the Superior Court\u2019s order, granting Thompson\u2019s Petition for Judicial Review.\nReversed.\nJudges WYNN and CALABRIA concur.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene, Tobias S. Hampson, and Edward Eldred, for PetitionerAppellee.", "Poyner Spruill LLP, by William R. Shenton and Jessica M. Lewis, for Respondent-Appellant." ], "corrections": "", "head_matter": "ANGELIQUE THOMPSON, Petitioner v. NORTH CAROLINA RESPIRATORY CARE BOARD, Respondent\nNo. COA09-599\n(Filed 2 February 2010)\nAdministrative Law\u2014 petition for judicial review of final agency decision \u2014 subject matter jurisdiction \u2014 aggrieved party \u2014 standing\nThe superior court erred by granting petitioner\u2019s petition for judicial review because the court did not have subject matter jurisdiction to make its determinations. Petitioner did not have standing since she was not an \u201caggrieved party\u201d under N.C.G.S. \u00a7 150B-43.\nAppeal by Respondent from judgment entered 17 December 2008 by Judge Allen Baddour in Wake County Superior Court. Heard in the Court of Appeals 17 November 2009.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene, Tobias S. Hampson, and Edward Eldred, for PetitionerAppellee.\nPoyner Spruill LLP, by William R. Shenton and Jessica M. Lewis, for Respondent-Appellant." }, "file_name": "0340-01", "first_page_order": 368, "last_page_order": 373 }