STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 07 ELS 0141
NORTH CAROLINA BOARD OF EXAMINERS FOR ENGINEERS AND SURVEYORS,Petitioner,
v.
C. PHIL WAGONER, PLS No. L-2416
Respondent. / )
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THIS MATTER came on for hearing before Fred G. Morrison Jr., Senior Administrative Law Judge, on June 25, 2007, in Raleigh, North Carolina.
APPEARANCES
For Petitioner: Patricia P. Kerner
Troutman Sanders, L.L.P.
P.O. Drawer 1389
Raleigh, NC 27602
For Respondent: Linda L. Helms
Wilson & Coffey, L.L.P.
110 Oakwood Drive, Suite 400
Winston-Salem, NC 27103
ISSUE
Whether Respondent is guilty of misconduct in the practice of his profession by practicing, or offering to practice, land surveying while his license to practice was suspended, and by operating a land surveying business in violation of the Petitioner Board’s Rules.
After hearing the sworn testimony of the witnesses, reviewing the exhibits admitted into evidence, and hearing arguments of counsel for the parties, the undersigned makes the following:
FINDINGS OF FACT
Parties
1. Petitioner, North Carolina Board of Examiners for Engineers and Surveyors, is an agency of the State of North Carolina created pursuant to Chapter 89C of the North Carolina General Statutes charged with administering and enforcing the statutes, rules, and regulations governing the practice of engineering and land surveying in the State of North Carolina. Petitioner Board is composed of nine members, appointed by the Governor for five-year terms. There are four Professional Engineer members, three Professional Land Surveyor members, and two public members.
2. Respondent, C. Phil Wagoner, is a professional land surveyor. Respondent was first licensed by the State of North Carolina to practice land surveying in 1976.
3. Respondent has been licensed to practice land surveying in Virginia since 1979.
4. Respondent has maintained his residence in Mount Airy, North Carolina, for approximately the last 20 years.
5. Respondent has operated a land surveying business in Surry County, North Carolina, for the past 18 to 19 years.
6. Respondent has always operated his land surveying business in Surry County as a sole proprietorship, operating under the name “C. Phil Wagoner, PLS,” which is his own name as registered with Petitioner.
7. Respondent has never sought to have a separate license issued by Petitioner Board for his business.
8. Throughout his career, Respondent has held positions of distinction within his profession, including being appointed by Governor James B. Hunt Jr. to serve as a Board member from July 1998 until July 2001, and being regularly invited to speak and teach at courses sponsored by the North Carolina Surveyors Society.
9. Following a prior contested case hearing, Respondent’s professional land surveying license in North Carolina was suspended for a period of three months, from September 6, 2005, to December 5, 2005, as a result of findings of misconduct and gross negligence arising out of a marketing paper and three separate surveys.
10. At all times during the period of his suspension, Respondent had a valid land surveying license in Virginia.
Period of Suspension
11. As part of Petitioner’s regular program of enforcement, investigators routinely visit the register of deeds and review plats to look for any problems that may arise, such as suspended individuals continuing to work during their period of suspension.
12. Respondent continued to own and operate his surveying business in North Carolina during his suspension.
13. In September 2005, Respondent entered into an agreement with Richard D. Hodges, a licensed land surveyor in North Carolina and Virginia, whereby Respondent would employ Mr. Hodges to provide professional land surveying services in connection with surveys performed for clients of his sole proprietorship on North Carolina properties during his suspension.
14. During Respondent’s period of suspension, Petitioner Board’s investigators discovered three survey plats registered in the Surry County Register of Deeds which contained Respondent’s name in the title block. Those surveys were entitled “SUBDIVISION FOR MONA ANNETTE FOWLER,” dated September 20, 2005, “SUBDIVISION FOR JEFFREY DELANO FOWLER AND WIFE LORIE LONGWORTH FOWLER,” dated September 20, 2005, and “SURVEY FOR JAVIER LARA,” dated November 7, 2005, and will hereinafter be referred to respectively as the “Mona Fowler survey,” the “Delano Fowler survey,” and the “Lara survey.”
15. The Mona Fowler, Delano Fowler, and Lara surveys were performed by Respondent’s business, through his employee, Mr. Hodges. The maps of the three surveys were recorded in the Surry County, North Carolina, Register of Deeds, during the period when Respondent’s North Carolina license was suspended.
16. Mr. Hodges’ license as a professional land surveyor in North Carolina was active throughout Respondent’s suspension period.
17. During Respondent’s suspension, he was not able to be a resident professional in responsible charge of any North Carolina surveying services in his office.
18. Mr. Hodges was not in responsible charge of the office of Respondent’s sole proprietorship during Respondent’s suspension.
19. All fees paid for professional surveying services performed on the Mona Fowler, Delano Fowler, and Lara surveys were collected by Respondent’s employee, Mr. Hodges, and then transferred, in full, to Respondent’s surveying business. Mr. Hodges charged Respondent’s surveying business for his services rendered on those surveys, and was paid by Respondent’s surveying business out of those proceeds.
20. During his suspension, Respondent operated his business under the assumed name of “C. Phil Wagoner, LS & Richard D. Hodges, LS, PLS.”
21. There is no business registered with Petitioner Board under the name “C. Phil Wagoner, LS & Richard D. Hodges, LS, PLS” or “Wagoner & Hodges.”
22. Respondent used an assumed name to identify his sole proprietorship in connection with surveying services provided in North Carolina without first applying to the Board for a determination that the proposed change complied with the provisions of 21 N.C.A.C. 56.0902(a).
23. The title blocks for the Mona Fowler, Delano Fowler, and Lara surveys identified the surveyors as “C. Phil Wagoner, L.S. & Richard D. Hodges, LS, PLS, Land Surveyors” and listed Respondent’s business address and phone number. The title block also contained the notation, “COPYRIGHT 2005 By Wagoner & Hodges.” The three plats were signed and sealed by Mr. Hodges.
24. Prior to his suspension, Respondent typically placed a title block on maps of North Carolina surveys he sealed that identified his name as “C. Phil Wagoner, PLS,” and listed his office address. In addition, prior to his suspension, Respondent typically made no reference in the title block in North Carolina surveys to his Virginia license.
25. Prior to, and following, his suspension, Respondent used a logo of his own design on his maps filed in North Carolina that included the following reference to his Virginia license, “Virginia CLS 1347,” and this reference to his North Carolina license, “North Carolina PLS L-2416.” Respondent used this logo, in part, as a means of allowing others to identify his work.
26. In his logo, Respondent always referred to his Virginia license as “CLS,” not “LS,” on North Carolina surveys, except for during his suspension.
27. Respondent modified the logo that he used historically on his maps, and allowed it to be placed on the title block of the Mona Fowler, Delano Fowler, and Lara maps. The modified logo looks very similar to the logo he used in the past; however, Respondent omitted any specific reference to his Virginia or North Carolina licenses.
28. The Mona Fowler, Delano Fowler, and Lara maps represent that Respondent is a land surveyor, but do not indicate that Respondent’s North Carolina license was suspended.
29. Respondent’s use of “LS” on North Carolina surveys is misleading because it implies the Respondent is a licensed surveyor in North Carolina.
30. Respondent’s continued use of his name in connection with North Carolina maps issued by his business and to be filed in the public record, along with the continued use of his established logo and business address on those maps, could have led any member of the public who saw those maps to believe that Respondent still had an active license to practice land surveying in North Carolina.
31. On September 30, 2005, Respondent prepared the invoice for the Lara survey. At the top of his invoice, Respondent identified the name of the business as “C. Phil Wagoner, LS & Richard D. Hodges, LS, PLS.”
32. Respondent’s use of his name, in conjunction with his reference to himself as a land surveyor, on maps of North Carolina properties to be filed on the public record in North Carolina, and on an invoice sent to a client, were offers to practice land surveying in North Carolina.
33. During his suspension, Respondent consulted, both orally and in writing, with the closing attorney for the Lara transaction concerning an encroachment problem.
34. On October 26, 2006, Respondent sent the Lara attorney a drawing and a letter bearing his name, proposing the establishment of an easement to resolve the problem.
35. During the communications concerning the Lara survey, Respondent did not tell the attorney that his license was suspended.
36. The Lara attorney was misled by his communications with Respondent and seeing Respondent’s name on the survey and invoice, and believed that his license was active at the time of his communications on the Lara survey. As a result, the attorney identified Respondent as a land surveyor for the Lara survey on the closing documents and deed of trust for this transaction.
37. Respondent continued to use his name in the operation of his sole proprietorship in connection with surveying services provided in North Carolina while his license was suspended, in a manner that was misleading.
38. Respondent willfully disregarded the Board’s rules and terms of his suspension.
39. On November 13, 2006, Petitioner issued a Citation for Hearing to Respondent, alleging violations of certain provisions of N.C. Gen. Stat. § 89C-24, 21 N.C.A.C. 56 .0701, 21 N.C.A.C. 56 .0702, 21 N.C.A.C. 56 .0802, 21 N.C.A.C. 56 .0901, and 21 N.C.A.C. 56 .0902.
40. A majority of the Petitioner Board elected not to hear this case and voted to apply to the Director of the Office of Administrative Hearings for the designation of an Administrative Law Judge to preside at this hearing.
BASED UPON the foregoing Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 89C and 150B of the North Carolina General Statutes.
2. Respondent violated several of Petitioner Board’s Rules by the manner in which he operated his business and used his name during his suspension:
a) A sole proprietorship cannot be operated without a separate license by someone whose license is suspended. During the period of suspension, from September 6, 2005 to December 5, 2005, when Respondent did not have an active license in North Carolina, his sole proprietorship did not have a license.
b) A sole proprietorship can only be operated by a licensee in his own name. Therefore, during Respondent’s period of suspension, the exception to the firm licensure requirement provided by 21 N.C.A.C. 56.0802(b)(1), was inapplicable to Respondent’s sole proprietorship.
c) Respondent’s use of his name in the operation of his sole proprietorship in North Carolina during his suspension was a violation of 21 N.C.A.C. 56.0902(a).
d) Respondent’s alteration of the name used to identify his sole proprietorship in connection with surveying services provided in North Carolina without first applying to the Petitioner Board for a determination that the proposed change complied with the provisions of 21 N.C.A.C. 56.0902(a), was a violation of 21 N.C.A.C. 56.0902(c).
e) Respondent operated an unlicensed sole proprietorship and engaged in the practice of land surveying in connection with the Mona Fowler, Delano Fowler, and Lara surveys, during his suspension, in violation of N.C. Gen. Stat. § 89C-23, N.C. Gen. Stat. § 89C-24, and 21 N.C.A.C. 56.0802(b)(1).
3. Respondent offered to practice and actually practiced land surveying, as defined by N.C. Gen. Stat. § 89C-3, while his certificate of licensure was suspended by the Petitioner Board:
a) Pursuant to N.C. Gen. Stat. § 89C-2,
It shall be unlawful for any person to practice or to offer to practice engineering or land surveying in this State, as defined in the provisions of this Chapter, or to use in connection with the person’s name or otherwise assume or advertise any title or description tending to convey the impression that the person is either a professional engineer or a professional land surveyor, unless the person has been duly licensed.
b) The practice of land surveying includes:
Providing professional services such as consultation, investigation, testimony, evaluation, planning, mapping, assembling, and interpreting reliable scientific measurements and information relative to the location, size, shape, or physical features of the earth, improvements on the earth, the space above the earth, or any part of the earth . . .
See N.C. Gen. Stat. § 89C-3(7)a (emphasis added).
c) Respondent’s consultations with an attorney concerning the establishment of an easement in connection with the Lara survey, while his license was suspended, constituted the unlawful practice of land surveying in violation of N.C. Gen. Stat. § 89C-23.
d) N.C. Gen. Stat. §89C-23 prohibits the use of the word “land surveyor” or any modification or derivative of that word unless authorized under the statutes.
e) “LS” is a derivative of land surveying.
f) Respondent’s use of the word “land surveyor” and the designation “LS” to refer to himself on the Mona Fowler, Delano Fowler, and Lara surveys, and on the invoice for the Lara survey, while his licensed was suspended was a violation of N.C. Gen. Stat. §§ 89C-2 and 89C-23.
g) Respondent’s representation that he was a land surveyor on the Mona Fowler, Delano Fowler, and Lara surveys, and on the invoice for the Lara survey, while his license was suspended, constituted an unlawful offer to practice land surveying in violation of N.C. Gen. Stat. § 89C-23.
4. Respondent served as a member of Petitioner Board and was aware of the requirements of the applicable statutes and rules. As such, Respondent knew, or should have known, that his suspension prohibited him from: identifying himself as a land surveyor on maps of North Carolina properties to be filed in North Carolina; consulting with an attorney regarding the Lara survey; and continuing to use his name, logo, and business address in connection with North Carolina maps issued by his business to be filed in the public record in North Carolina. Any of the aforementioned could have led a member of the public who saw those maps to reasonably believe that Respondent still had an active license to practice land surveying in North Carolina.