{ "id": 12175859, "name": "HANS KINDSGRAB, Petitioner-Appellant v. STATE OF NORTH CAROLINA BOARD OF BARBER EXAMINERS, Respondent-Appellant", "name_abbreviation": "Kindsgrab v. State of North Carolina Board of Barber Examiners", "decision_date": "2014-10-07", "docket_number": "No. COA13-1321", "first_page": "564", "last_page": "575", "citations": [ { "type": "official", "cite": "236 N.C. App. 564" } ], "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": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "35" }, { "page": "35" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "381-82" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "164 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "166" }, { "page": "168" } ], "opinion_index": 0 }, { "cite": "274 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560749 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0486-01" ] }, { "cite": "339 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "98" }, { "page": "98" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519831 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "173-74" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0173-01" ] }, { "cite": "457 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "898", "parenthetical": "quoting Vann v. N.C. State Bar, 79 N.C. App. 173, 173-74, 339 S.E.2d 97, 98 (1986)" }, { "page": "899" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 62", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913588 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "70", "parenthetical": "quoting Vann v. N.C. State Bar, 79 N.C. App. 173, 173-74, 339 S.E.2d 97, 98 (1986)" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0062-01" ] }, { "cite": "357 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "320 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731807 ], "year": 1987, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0126-01" ] }, { "cite": "405 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "129", "parenthetical": "\"Generally speaking, the scope of a court's inherent power is its 'authority to do all things that are reasonably necessary for the proper administration of justice.'\"" } ], "opinion_index": 0 }, { "cite": "329 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553368 ], "year": 1991, "pin_cites": [ { "page": "94", "parenthetical": "\"Generally speaking, the scope of a court's inherent power is its 'authority to do all things that are reasonably necessary for the proper administration of justice.'\"" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0084-01" ] }, { "cite": "741 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "318", "parenthetical": "quotation marks and citations omitted" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 885, "char_count": 26121, "ocr_confidence": 0.723, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24719105245132053 }, "sha256": "0973d379651c04fa031f30460881c7db85b2ec7087b2ff92cfc8490ba116ed6c", "simhash": "1:fbcbdd2a777ca9f2", "word_count": 4200 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "HANS KINDSGRAB, Petitioner-Appellant v. STATE OF NORTH CAROLINA BOARD OF BARBER EXAMINERS, Respondent-Appellant" ], "opinions": [ { "text": "McCullough, Judge.\nHans Kindsgrab (\u201cpetitioner\u201d) appeals from the Order On Petition For Judicial Review filed 11 September 2013. The State of North Carolina Board of Barber Examiners (\u201crespondent\u201d or \u201cthe Board\u201d) appeals from the interlocutory order denying its Motion To Dismiss Petition For Judicial review filed 3 May 2103 and from the Order On Petition For Judicial Review filed 11 September 2013. For the following reasons, we affirm in part and reverse in part.\nI. Background\nPetitioner is an owner of Maybe Someday, Inc., which owns and operates franchises of \u201cThe Barbershop - A Hair Salon for Men\u201d at three locations in the triangle area - Cary, Durham, and Raleigh. At all times relevant to this appeal, each location held a Cosmetic Arts Salon License issued by the North Carolina State Board of Cosmetic Art Examiners.\nIn 2012, an investigation by barber examiner William Graham revealed that the Cary and Raleigh locations displayed barber polls and advertised barber services without barber permits and without licensed barbers on the premises. As a result, Graham issued \u201cNotice[s] Of Violation[s]\u201d to the Raleigh and Cary locations on 31 July 2012 specifying fraudulent misrepresentation in violation of N.C. Gen. Stat. \u00a7 86A-20 and N.C. Admin. Code tit. 21, r. 60.0107. Following the notices issued by Graham, on 7 September 2012, the Board sent petitioner a Notification of Probable Cause to Fine and ordered petitioner to pay civil penalties, attorney\u2019s fees, and costs.\nBy letter to the Board dated 2 October 2012, petitioner requested an administrative hearing to contest the fraudulent misrepresentation charges. On 3 October 2012, the Board responded to petitioner by letter providing notice that an administrative hearing had been scheduled for 22 October 2012. The hearing took place as scheduled.\nFollowing the 22 October 2012 hearing, the board issued its Final Decision on 6 November 2012. Among the conclusions issued by the board were the following:\n10. Petitioner must comply with the statutes and administrative rules concerning barber shops, barbering services and use of a barber pole.\n11. The preponderance of the evidence established that it [sic] the Board properly cited Petitioner for misrepresenting itself as a barber shop or barber salon when it failed to have a barber shop permit and a licensed barber at each of its franchise locations in Cary and Raleigh.\nThe Board then ordered petitioner to \u201cpay one thousand dollars ($1,000.00) in civil penalties for fraudulent misrepresentations concerning attempts to barber and provide barber services without a shop permit and a licensed barber on the premises at the Cary and Raleigh locations[, five hundred dollars ($500.00) per location,]\u201d and to \u201cpay one thousand six hundred fifty dollars ($1,650.00) in attorney\u2019s fees and costs for services rendered by the Board Counsel and staff.\u201d\nOn 3 December 2012, petitioner filed a Petition For Judicial Review in Wake County Superior Court seeking review of the Board\u2019s Final Decision. After numerous motions by both sides attempting to settle the record, on 26 April 2013, respondent filed a Motion To Dismiss Petition For Judicial Review on the basis that petitioner failed to \u201cspecifically state the grounds for exception[.]\u201d Respondent\u2019s motion to dismiss came on to be heard with the motions to settle the record on 3 May 2013. Following the hearing, the trial court filed an order denying respondent\u2019s motion to dismiss.\nRespondent\u2019s Petition For Judicial Review came on to be heard in Wake County Superior Court before the Honorable Howard E. Manning, Jr., on 4 September 2013.\nIn an Order On Petition For Judicial Review filed 11 September 2013, the trial court affirmed the Board\u2019s Final Decision in part and reversed in part. Specifically, the trial court found the Board\u2019s findings to be supported by substantial evidence and found the board\u2019s conclusions to be supported by the findings of fact and the whole record. The trial court also made the following more specific findings:\n4. The Court affirms in part Paragraph 1 of the Order portion of the Final Agency Decision which holds that Petitioner\u2019s businesses, The Barber Shop - A Hair Salon-For Men, were providing barber services without a barber shop permit and a licensed barber on the premises at Respondent\u2019s Cary and Raleigh locations.\n5. The Court affirms in part the Final Agency Decision, which holds that Petitioner is not allowed to use or display a barber pole for the purpose of offering barbering services, and Petitioner is ordered to remove the barber pole unless licensed by Respondent Board.\n6. The Court affirms in part the Final Agency Decision which holds that Petitioner\u2019s businesses, advertising of its services as a barber shop is a misrepresentation and confusing and deceptive to the consuming public, and Petitioner is ordered to remove and cease such advertisements unless licensed by Respondent Board.\n7. The Court reverses in part the Final Agency Decision in its imposition of fines because the Court concludes that Respondent Board does not have the statutory authority to impose fines on persons or entities not licensed by the Board.\n8. The Court reverses in part the Final Agency Decision in its imposition of attorney fees and costs for services rendered by the Board Counsel and staff because the Court concludes that Respondent Board does not have the statutory authority to impose such fees and costs on persons or entities not licensed by the Board.\nBased on these findings, the trial court ordered the imposition of civil penalties and the award of attorney\u2019s fees and costs for services be reversed. Both petitioner and respondent appealed.\nII. Discussion\n\u201cWhen reviewing a superior court order concerning an agency decision, we examine the order for errors of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Poarch v. N.C. Dep\u2019t of Crime Control & Pub. Safety, _ N.C. App. _, _, 741 S.E.2d 315, 318 (2012) (quotation marks and citations omitted).\nA. Petitioner\u2019s Appeal\nThe sole issue raised on appeal by petitioner is whether the trial court exceeded the permissible scope of review when it ordered him to remove the barber pole and cease advertising barber services unless licensed by the Board. Petitioner contends the trial court did and that those portions of the trial court\u2019s order must be reversed. We agree.\nN.C. Gen. Stat. \u00a7 150B-51 governs the scope of judicial review of an agency decision. It provides in pertinent part:\n(b) The court reviewing a final decision may affirm the decision or remand the case for further proceedings. It may also reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the 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 or administrative law judge;\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(c) In reviewing a final decision in a contested case, the court shall determine whether the petitioner is entitled to the relief sought in the petition based upon its review of the final decision and the official record. With regard to asserted errors pursuant to subdivisions (1) through (4) of subsection (b) of this section, the court shall conduct its review of the final decision using the de novo standard of review. With regard to asserted errors pursuant to subdivisions (5) and (6) of subsection (b) of this section, the court shall conduct its review of the final decision using the whole record standard of review.\nN.C. Gen. Stat. \u00a7 150B-51 (2013).\nPursuant to N.C. Gen. Stat. \u00a7\u00a7 86A-5 & -27, the Board has the power to assess civil penalties. See N.C. Gen. Stat. \u00a7 86A-5(a)(6) (2013). The Board does not, however, have the power to issue injunctions. Thus, in accordance with its powers, the Board did not enjoin petitioner, but simply found petitioner was properly cited for fraudulent misrepresentations and ordered petitioner to pay civil penalties, attorney\u2019s fees, and costs.\nAs detailed more fully above, petitioner petitioned the trial court to review the Board\u2019s assessment of civil penalties, attorney\u2019s fees, and costs. Upon reviewing the case, the trial court reversed portions of the Board\u2019s Final Decision and held the Board did not have the statutory authority to impose civil penalties, attorney\u2019s fees, and costs on non-licensees. The trial court did, however, affirm the Board\u2019s conclusions that petitioner was subject to the Barber Act, Chapter 86A of the General Statues, and violated certain rules related to advertising barber services. Yet, in addition to affirming those portions of the Board\u2019s Final Decision related to advertising, the trial court ordered petitioner to remove the barber pole and cease advertising barber services unless licensed by the Board.\nDefendant now contends the decretal portions of the trial court\u2019s order ordering the removal of the barber pole and cessation of advertising barber services were beyond the scope of the trial court\u2019s review.\nAlthough the Barber Act provides an avenue for the Board to seek an injunction in superior court, see N.C. Gen. Stat. \u00a7 86A-20.1 (2013) (\u201cThe Board . . . may apply to the superior court for an injunction to restrain any person from violating the provisions of this Chapter or the Board\u2019s rules.\u201d), respondent concedes that it did not pursue that avenue, nor raise the issue in the underlying contested case. Nevertheless, citing In re Alamance County Court Facilities, 329 N.C. 84, 94, 405 S.E.2d 125, 129 (1991) (\u201cGenerally speaking, the scope of a court\u2019s inherent power is its \u2018authority to do all things that are reasonably necessary for the proper administration of justice.\u2019\u201d) (quoting Beard v. N.C. State Bar, 320 N.C. 126, 129, 357 S.E.2d 694, 696 (1987)), respondent contends that it was within the inherent power of the court to enjoin petitioner from displaying the barber pole and advertising barber services. We disagree.\nGiven that N.C. Gen. Stat. \u00a7 86A-20.1 provides an avenue for respondent to seek an injunction and respondent did not pursue that avenue, we hold the trial court, acting on its own to issue relief outside the authority of the Board, acted outside the scope of review provided in N.C. Gen. Stat. \u00a7 150B-51. The only issues before the trial court for review were those issues decided by the Board - the assessment of civil penalties, attorney\u2019s fees, and costs. As a result, we reverse those portions of the trial court\u2019s order that mandate petitioner remove the barber pole and cease advertising barber services.\nB. Respondent\u2019s Appeal\nIn respondent\u2019s appeal, respondent first argues the trial court erred in its 3 May 2013 order by denying its Motion To Dismiss Petition For Judicial Review. Specifically, respondent contends dismissal was appropriate because petitioner failed to make specific exceptions to the Board\u2019s Final Decision.\nN.C. Gen. Stat. \u00a7 150B-46 governs the contents of petitions for judicial review from final agency decisions. It provides, \u201c[t]he petition shall explicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks.\u201d N.C. Gen. Stat. \u00a7 150B-46 (2013). This Court has recognized that \u201c '[e]xplicit\u2019 is defined in this context as \u2018characterized by full clear expression: being without vagueness or ambiguity: leaving nothing implied.\u2019\u201d Gray v. Orange County Health Dept., 119 N.C. App. 62, 70, 457 S.E.2d 892, 898 (1995) (quoting Vann v. N.C. State Bar, 79 N.C. App. 173, 173-74, 339 S.E.2d 97, 98 (1986)). Applying that definition of explicit in both Gray and Vann, this Court held the trial courts erred in denying the respondents\u2019 motions to dismiss because the petitions at issue were not \u201csufficiently explicit\u201d to allow effective judicial review where the petitioners did not except to particular findings of fact, conclusions of law, or procedures. Gray, 119 N.C. App. at 71, 457 S.E.2d at 899, Vann, 79 N.C. App. at 174, 339 S.E.2d at 98.\nRespondent now argues for a similar result in the present case because petitioner did not take exception with specific findings of fact, conclusions of law, or procedures. Respondent claims petitioner made only general assertions of error that fail to meet the required standards of specificity under N.C. Gen. Stat. \u00a7 150B-46. We disagree.\nAlthough petitioner did not except to specific findings or conclusions by the Board, petitioner clearly stated exceptions to the Board\u2019s Final Decision. These exceptions include the following:\na. Petitioner is not a licensed or registered barber (hereinafter \u201ca Licensee\u201d), and the Board\u2019s powers over individuals who are not Licensees are limited to making a criminal referral alleging a violation of N.C.G.S. \u00a7 86A-20, or seeking injunctive relief from the Court as provided for under N.C.G.S. \u00a7 86A-20.1. The Board\u2019s imposition of fines and costs on Petitioner is beyond the power granted by the General Assembly; the Final Decision is in excess of the statutory authority or jurisdiction of the Board, and, in accordance with N.C.G.S. \u00a7 150B-51(b)(2), the Final Decision must be reversed.\nb. Even if N.C.G.S. \u00a7 86A-27 applies to individuals who are not Licensees, N.C.G.S. \u00a7 86A-27(d) specifically provides that the Board may only impose fees and costs on \u201cthe licensee\u201d, and Petitioner is not a Licensee. Under the circumstances, imposition of costs and attorney\u2019s fees on Petitioner is in excess of the statutory authority or jurisdiction of the Board, and, in accordance with N.C.G.S. \u00a7 150B-51(b)(2), the Final Decision must be reversed.\nc. N.C.G.S. \u00a7 86A-14 provides:\nThe following persons are exempt from the provisions of this Chapter while engaged in the proper discharge of their duties:\n(5) Persons who are working in licensed cosmetic shops or beauty schools and are licensed by the State Board of Cosmetic Art Examiners.\nAs the Board recognizes, each of Maybe Someday\u2019s locations has a Cosmetic Arts Salon License through Petitioner, and, therefore, in accordance with the provisions of N.C.G.S. \u00a7 86A, Petitioner is exempt from the provisions of the Barber Act. Under the circumstances, the Final Decision is in excess of the statutory authority or jurisdiction of the Board, and, in accordance with N.C.G.S. \u00a7 150B-51(b)(2), and [sic] it must be reversed.\nd.A primary basis for the Board\u2019s contention that Petitioner was \u201cattempting to barber by fraudulent misrepresentations\u201d is that Maybe Someday\u2019s locations have a \u201cbarber pole\u201d in the reception area, without a barber permit for the shop. With respect to the use of the \u201cbarber pole\u201d, the Board holds that 21 NCAC 06Q.0101 \u201cstates that no person shall use or display a barber pole for the purpose of offering barbering services to the consuming public without a barber shop permit.\u201d In fact, 21 NCAC 06Q.0101 does not state anything of the sort. The cited section of the North Carolina Administrative Code simply provides\n\u201c[e]very establishment permitted to practice barbering shall display at its main entrance a sign which is visible from the street, and whose lettering is no small[er] than three inches, stating \u2018barber shop,\u2019 \u2018barber salon,\u2019 \u2018barber styling\u2019 or similar use of the designation, \u2018shop, salon or styling\u2019 or shall display a \u2018barber pole\u2019 . . [. .]\u201d Thus, the cited section of the North Carolina Administrative Code imposes obligations on barbers, it does not prohibit any act by individuals who axe not Licensees.\nUnder the circumstances, the Final Decision, in accordance with the provisions of N.C.G.S. \u00a7 150B-51(b)(2), and/ or N.C.G.S. \u00a7 150B-51(b)(4), and/or N.C.G.S. \u00a7 150B-51(b) (6), must be reversed.\nConsidering these exceptions in the context of the petition, we find the Petition For Judicial Review \u201csufficiently explicit\u201d to allow effective judicial review. Thus, we hold the trial court did not err in denying respondent\u2019s motion to dismiss.\nIn the second issue raised by respondent on appeal, respondent argues the trial court erred in concluding that \u201cRespondent Board does not have the statutory authority to impose such fines on persons or entities not licensed by the Board.\u201d Upon review of the statutes, regulations, and relevant law, we agree.\nAmong the powers and duties assigned to the Board is the power \u201cto assess civil penalties pursuant to [N.C. Gen. Stat. \u00a7] 86A-27.\u201d N.C. Gen. Stat. \u00a7 86A-5(a)(6). N.C. Gen. Stat. \u00a7 86A-27(a) in turn provides, in pertinent part, \u201c[t]he Board may assess a civil penalty not in excess of five hundred dollars ($500.00) per offense for the violation of any section of this Chapter or the violation of any rules adopted by the Board.\u201d N.C. Gen. Stat. \u00a7 86A-27 (2013).\nA plain reading of N.C. Gen. Stat. \u00a7 86A-27(a) reveals no indication that the imposition of civil penalties is limited solely to licensees. In fact, as respondent points out, where portions of the statute are intended to apply exclusively to licensees, the statute unambiguously provides for it; for example, N.C. Gen. Stat. \u00a7 86A-27(d), which governs the assessment of attorney\u2019s fees and costs in Board proceedings, provides that \u201c[t]he Board may in a disciplinary proceeding charge costs, including reasonable attorneys\u2019 fees, to the licensee against whom the proceedings were brought.\u201d N.C. Gen. Stat. \u00a7 86A-27(d) (emphasis added). Where there is no limiting language in N.C. Gen. Stat. \u00a7 86A-27(a), we will not read limiting language into the statute.\nMoreover, N.C. Gen. Stat. \u00a7 86A-27(c) provides that \u201c[t]he Board shall establish a schedule of civil penalties for violations of this Chapter and rules adopted by the Board.\u201d The Board has done so beginning with N.C. Admin. Code tit. 21, r. 60.0101. As argued by respondent, the rules promulgated by the Board pursuant to the Administrative Procedure Act, Chapter 150B of the General Statutes, indicate that fines may be imposed on non-licensees. See N.C. Admin. Code tit. 21, r. 60.0102 (June 2014) (setting forth a schedule of civil penalties for operating a barber shop without first filing an application for a barber shop license or without a valid permit).\nParticularly relevant to this case, the schedule of civil penalties provides that \u201c[t]he presumptive civil penalty for barbering or attempting to barber by fraudulent misrepresentations . . . : 1st offense $500.00.\u201d N.C. Admin. Code tit. 21, r. 60.0107 (June 2014). A subsequent regulation explains that\n[e]xcept as provided in Chapter 86A of the General Statutes, the Board:\n(1) will find fraudulent misrepresentation in the following examples:\n(a) An individual or entity operates or attempts to operate a barber shop without a permit;\n(b) An individual or entity advertises barbering services unless the establishment and personnel employed therein are licensed or permitted;\n(c) An individual or entity uses or displays a barber pole for the purpose of offering barber services to the consuming public without a barber shop permit[.]\nN.C. Admin. Code tit. 21, r. 6Q.0101 (June 2014). Thus, it is clear from the Board rules that civil penalties may be assessed for violations by an \u201cindividual or entity\u201d, not just against those licensed by the Board.\nIn response to respondent\u2019s argument, petitioner argues that if the Board has statutory authority to impose civil penalties on non-licensees, that authority is unconstitutional because it constitutes a grant of judicial power to the Board that is not \u201creasonably necessary\u201d to accomplish the Board\u2019s purpose.\nNorth Carolina\u2019s Constitution provides that \u201c[t]he legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.\u201d N.C. Const, art. I, \u00a7 6. As our Supreme Court explained in State, ex rel Lanier, Gomm\u2019r of Ins. v. Vines, 274 N.C. 486, 164 S.E.2d 161 (1968),\nThe legislative authority is the authority to make or enact laws; that is, the authority to establish rules and regulations governing the conduct of the people, their rights, duties and procedures, and to prescribe the consequences of certain activities. Usually, it operates prospectively. The power to conduct a hearing, to determine what the conduct of an individual has been and, in the light of that determination, to impose upon him a penalty, within limits previously fixed by law, so as to fit the penalty to the past conduct so determined and other relevant circumstances, is judicial in nature, not legislative.\nId. at 495, 164 S.E.2d at 166. Our Constitution, however, also provides that \u201c[t]he General Assembly may vest in administrative agencies established pursuant to law such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purposes for which the agencies were created.\u201d N.C. Const, art. IV, \u00a7 3. \u201cWhether a judicial power is \u2018reasonably necessary as an incident to the accomplishment of the purposes for which\u2019 an administrative office or agency was created must be determined in each instance in the light of the purpose for which the agency was established and in the light of the nature and extent of the judicial power undertaken to be conferred.\u201d Lanier, 274 N.C. at 497, 164 S.E.2d at 168.\nWhat began as a narrow interpretation of \u201creasonably necessary\u201d in Lanier has since become more liberal, permitting administrative agencies guided by proper standards to exercise discretion in assessing civil penalties. See In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 324 N.C. 373, 381-82, 379 S.E.2d 30, 35 (1989). Applying the less mechanical approach in In re Civil Penalty, our Supreme Court upheld a civil penalty imposed by the North Carolina Department of Natural Resources and Community Development for violations of the Sedimentation Pollution Control Act as reasonably necessary. Id.\nAs petitioner states, \u201c[t]he purposes of the Board are to license barbers and to prevent anyone who is not licensed as a barber from practicing barbering.\u201d See N.C. Gen. Stat. \u00a7 86A-1 (2013). As with most agencies, these purposes serve to protect the public.\nNow on appeal, petitioner contends the Board has all the tools necessary to accomplish its purposes by referring non-licensees engaged in the practice of barbering for criminal prosecution pursuant to N.C. Gen. Stat. \u00a7 86A-20 and seeking to enjoin non-licensees from practicing barbering pursuant to N.C. Gen. Stat. \u00a7 86A-20.1. While we recognize that N.C. Gen. Stat. \u00a7\u00a7 86A-20 & -20.1 provide means to accomplish the Board\u2019s purposes, they are not the exclusive means. As the Court noted in In re Civil Penalty, other avenues to prohibit violations, such as injunctions, take time during which irreparable damage may occur. \u201cThe power to levy a civil penalty is therefore a useful tool, since even the threat of a fine is a deterrent.\u201d 324 N.C. at 381, 379 S.E.2d at 35.\nSimilarly, in this case we hold that the imposition of civil penalties on non-licensees is reasonably necessary for the Board to serve its purpose of preventing non-licensees from engaging in the practice of barbering.\nIII. Conclusion\nFor the reasons discussed above, we affirm the trial court in part and reverse in part.\nAffirmed in part; reversed in part.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Harris & Hilton, P.A., by Nelson G. Harris, for petitioner-appellant.", "N.C. Board of Barber Examiners, by W. Bain Jones, Jr., and Allen, Pinnix & Nichols, P.A., by M. Jackson Nichols and Catherine E. Lee, for respondent-appellant." ], "corrections": "", "head_matter": "HANS KINDSGRAB, Petitioner-Appellant v. STATE OF NORTH CAROLINA BOARD OF BARBER EXAMINERS, Respondent-Appellant\nNo. COA13-1321\nFiled 7 October 2014\n1. Administrative Law\u2014judicial review\u2014scope\u2014issues decided by Board\nThe trial court exceeded the permissible scope of review when it ordered petitioner to remove a barber pole and stop advertising barber services unless licensed by the Board of Barber Examiners. The only issues before the trial court for review were those issues decided by the Board - the assessment of civil penalties, attorney\u2019s fees, and costs. N.C.G.S. \u00a7 86A-20.1 provided an avenue for respondent to seek an injunction, which respondent did not pursue.\n2. Administrative Law\u2014judicial review\u2014exceptions to Board\u2019s decision\u2014sufficient\nThe trial court did not err in a case involving judicial review of an administrative action by denying respondent\u2019s motion to dismiss the petition for judicial review. Although petitioner did not except to specific findings or conclusions by the Board of Barber Examiners, petitioner clearly stated exceptions to the Board\u2019s final decision.\n3. Administrative Law\u2014authority of board to issue fines\u2014not limited to licensees\u2014limitation not read into statute\nThe trial court erred by concluding that the Board of Barber Examiners did not have the statutory authority to impose fines on persons or entities not licensed by the Board. A plain reading of N.C.G.S. \u00a7 86A-27(a) revealed no indication that imposition of civil penalties was limited solely to licensees and the Court of Appeals would not read limiting language into the statute where it did not exist.\n4. Constitutional Law\u2014Board of Barber Examiners\u2014authority over non-licensees\u2014reasonably necessary to purpose\nThe ability of the Board of Barber Examiners to impose civil penalties on non-licensees is reasonably necessary for the Board to serve its purpose of preventing non-licensees from engaging in the practice of barbering. While there are other statutory means to accomplish the Board\u2019s purpose, such as seeking an injunction or criminal prosecution, those means are not exclusive.\nAppeals by petitioner and respondent from orders entered 3 May 2013 and 11 September 2013 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 23 April 2014.\nHarris & Hilton, P.A., by Nelson G. Harris, for petitioner-appellant.\nN.C. Board of Barber Examiners, by W. Bain Jones, Jr., and Allen, Pinnix & Nichols, P.A., by M. Jackson Nichols and Catherine E. Lee, for respondent-appellant." }, "file_name": "0564-01", "first_page_order": 572, "last_page_order": 583 }