IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-436
Filed: 4 February 2020
Union County, No. 18 CVS 02286
PHILANDER INGRAM, COMMERCIAL CONTROLS, INC., Petitioners
v.
NORTH CAROLINA STATE BOARD OF PLUMBING, HEATING AND FIRE SPRINKLER CONTRACTORS, Respondent
Appeal by Petitioners from Order entered 6 February 2019 by Judge Lori I.
Hamilton in Union County Superior Court. Heard in the Court of Appeals 17 October
2019.
Vann Law Firm, P.A., by Christopher M. Vann, for petitioners-appellants.
Young Moore and Henderson, P.A., by Reed N. Fountain and John N. Fountain, for respondent-appellee.
HAMPSON, Judge.
Factual and Procedural Background
Philander Ingram (Ingram) and Commercial Controls, Inc. (collectively
Petitioners) appeal from the trial court’s Order affirming an Order of the State Board
of Plumbing, Heating and Fire Sprinkler Contractors suspending Petitioners’ licenses
for twenty-four months followed by twelve months of supervised probation. The
Record reflects the following relevant facts: INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
Opinion of the Court
Petitioners are engaged in the business of HVAC contracting. In 2004, Ingram
received a residential license for HVAC contracting and in 2005 supplemented that
license with a Heating Group 3, Class I License, which authorized additional
residential and light commercial HVAC work. Ingram holds those licensees in the
name of Commercial Controls, Inc. From 1 January 2013 to 31 December 2015,
Petitioners were on probation due to a prior decision from the State Board of
Plumbing, Heating and Fire Sprinkler Contractors. Two separate incidents gave rise
to the appeal before us.
Beginning in December 2014, Petitioners entered into two contracts with a
general contractor as part of a restaurant renovation of “The Cooking Pot” in
Charlotte, North Carolina. Petitioners were subcontracted to install an exhaust hood
system for the commercial kitchen and separately to install a complete duct system
for the preexisting HVAC system, to service the dining area, and to install a new,
four-ton HVAC system to service the restaurant’s kitchen. The total contracted
amount between Petitioners and the general contractor was $49,995.
Petitioners, utilizing the building’s original load calculations, installed a new
HVAC unit onto a preexisting platform on the roof of the restaurant and connected it
to the existing duct system. Petitioners hung the new hood in the kitchen but did not
complete final installation. Petitioners received $24,500 from the general contractor
for this work, but Ingram stated he “chose to not continue any more work until [he]
-2- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
was paid in full as the contract dictated.” After Petitioners walked away from The
Cooking Pot project, the restaurant owner (Ms. Ikuru) hired additional contractors to
finish the installations required to open her business. Ms. Ikuru averred that she
began experiencing significant leakage from the roof after the installation of the new
HVAC unit. Upon inspection, Ms. Ikuru was informed the leaks were the result of
improper installation of the new HVAC unit. Subsequently, Ms. Ikuru filed a
complaint with the North Carolina Licensing Board for General Contractors, who
forwarded the complaint to the North Carolina State Board of Plumbing, Heating and
Fire Sprinkler Contractors (the Board) around March 2016.
On 20 June 2017, another complaint was filed against Petitioners. Kathy
Melton, the City of Shelby Building Inspection Department’s Administrative
Assistant, averred that on 13 June 2017, two men employed by Carolina Air
attempted to get a permit on behalf of Petitioners for a project at 401 N. Morgan
Street, Shelby, North Carolina, a property managed by White Oaks Manor. The men
informed her that they were not on the payroll but “they get a 1099.” Melton did not
issue a permit at that time. Later that day, Ingram obtained the requested permit in
person; however, no installation or work occurred at 401 N. Morgan Street.
On 11 January 2018, the Board issued a Notice of Hearing to Petitioners
related to the two complaints. Specifically, the Notice of Hearing alleged: Petitioners’
work at The Cooking Pot was incompetent in that they used the original load
-3- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
calculations for the building rather than completing new ones, installed the new
HVAC unit on an existing platform and “did not repair gaps in the flashing claiming
that was not part of the installation[,]” failed to install equipment rails, pieced
together curb caps that were not watertight, capped new gas and electric penetrations
with a bucket, and did not complete the final hookup of the hood system. The Notice
of Hearing alleged Petitioners’ “arrangement with White Oaks Manor constitutes
license peddling or aiding and abetting contracting without license, both of which are
violations of the statutes and rules enforced by [the] Board, and violate [Petitioners’]
probation . . . .”
The case was heard before the Board on 24 July 2018. At Petitioners’ hearing,
the Board received testimony from, among others: Ingram; Ms. Ikuru; Mr. Mumtaz,
the general contractor from The Cooking Pot; Howard Longacre, an employee of
Baker Roofing Company who was hired by the property management company of The
Cooking Pot to inspect the roof; Jonathan Yerkes, a Field Investigator for the Board
who investigated the complaint filed against Petitioners related to The Cooking Pot;
and Kathy Melton, Administrative Assistant at the City of Shelby Building
Inspections Department.
On 8 August 2018, the Board entered an Order (Board’s Order) suspending
Petitioners’ licenses for twenty-four months to be followed by a twelve-month period
of supervised probation. On 7 September 2018, Petitioners filed a Petition for
-4- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
Judicial Review in Union County Superior Court. On 6 February 2019, the trial court
entered an Order affirming the Board’s Order. On 7 March 2019, Petitioners timely
filed Notice of Appeal from the trial court’s Order.
Issues
Petitioners contend (I) the trial court incorrectly determined that the Board
did not err when it affirmed the Board’s determination that Petitioners’ installation
at The Cooking Pot was incompetent and (II) the trial court incorrectly determined
the Board’s decision was supported by substantial evidence.
Standard of Review
Appellate review of a judgment of the superior court entered upon review of an administrative agency decision requires that the appellate court determine whether the trial court utilized the appropriate scope of review and, if so, whether the trial court did so correctly. The nature of the error asserted by the party seeking review dictates the appropriate manner of review: if the appellant contends the agency’s decision was affected by a legal error, de novo review is required[.]
Dillingham v. N. C. Dep’t of Human Res., 132 N.C. App. 704, 708, 513 S.E.2d 823,
826 (1999) (citation and quotation marks omitted). “When the issue for review is
whether an agency’s decision was supported by substantial evidence in view of the
entire record, a reviewing court must apply the whole record test.” Watkins v. N.C.
State Bd. of Dental Exam’s, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004) (citations
and quotation marks omitted). “A court applying the whole record test may not
substitute its judgment for the agency’s as between two conflicting views, even
-5- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
though it could reasonably have reached a different result had it reviewed the matter
de novo.” Id. (citation omitted). Accordingly, we review the trial court’s Order first
to determine if the trial court applied the correct standard of review to Petitioners’
claims. We then review the trial court’s Order for questions of law de novo and apply
the whole-record test to determine if the trial court’s decision affirming the Board is
supported by substantial evidence.
Analysis
I. Petitioners’ Alleged Incompetence
Petitioners contend the Board erred as a matter of law when it concluded
Petitioners’ work at The Cooking Pot was incompetent under N.C. Gen. Stat. § 87-
23(a). Specifically, Petitioners contend the applicable regulation of the building code
constitutes the minimum standard of competence and therefore Petitioners complied
with the minimum standards of competence when the work passed inspection and,
second, that Petitioners were not required by regulation to conduct an independent
load calculation when installing the new HVAC unit. Petitioners’ contentions are
questions of law, which the trial court properly reviewed de novo. We also review
Petitioners’ contentions de novo. See Dillingham, 132 N.C. App. at 708, 513 S.E.2d
at 826.
A. Inspection
-6- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
Petitioners first contend the trial court erred in affirming the Board’s
conclusion Petitioners’ work at The Cooking Pot was incompetent because “the
provisions of the building code are the minimum standard of competence” and the
“Board’s investigator testified that the rooftop HVAC unit passed inspection.”
Petitioners further contend that for the Board to conclude Petitioners violated
“standards prevailing in the industry[,]” expert testimony on the issue of “installing
a four-ton rooftop heating and air conditioning unit” was necessary. The trial court
concluded the Board was not required to receive expert testimony related to the
“standards prevailing in the industry.” We agree.
Our Supreme Court has considered similar issues regarding the necessity of
expert testimony in hearings before professional licensing boards. In Leahy v. N. C.
Bd. of Nursing, our Supreme Court reversed an unanimous Court of Appeals decision
and held “[t]he knowledge of the [Nursing] Board includes knowledge of the standard
of care for nurses. . . . There is no reason it should not be allowed to apply this
standard if no evidence of it is introduced.” 346 N.C. 775, 781, 488 S.E.2d 245, 248
(1997).
In its reasoning, the Court emphasized the language found in North Carolina’s
Administrative Procedure Act (APA), which states “[a]n agency may use its
experience, technical competence, and specialized knowledge in the evaluation of
evidence presented to it[,]” N.C. Gen. Stat. § 150B-41(d), and “the composition and
-7- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
statutorily prescribed functions of the Nursing Board[.]” Watkins, 358 N.C. at 195,
593 S.E.2d at 767 (citing Leahy, 346 N.C. at 781, 488 S.E.2d at 248). In analyzing
“the composition and statutorily prescribed functions” of the Nursing Board, the
Court highlighted the Nursing Board:
[C]urrently consists of nine registered nurses, four licensed practical nurses, one retired doctor, and one lay person. The Board is authorized to develop rules and regulations to govern medical acts by registered nurses. It is empowered to administer, interpret, and enforce the Nursing Practice Act. The Board is required to adopt standards regarding qualifications of applicants for licensure and to establish criteria which must be met by an applicant in order to receive a license.
Leahy, 346 N.C. at 781, 488 S.E.2d at 248 (citations omitted).
In Watkins our Supreme Court extended its Leahy analysis to the Dental Board
and “declin[ed] to impose a per se rule that expert testimony is required to establish
the standard of care in disciplinary hearings conducted by professional licensing
boards.” Watkins, 358 N.C. at 196, 593 S.E.2d at 767. The petitioner argued that the
Dental Board was not qualified to opine on the standard of care applicable to
orthodontists, who are licensed under the Dental Board. Id. at 194, 593 S.E.2d at
767. The Court, following Leahy, looked to the North Carolina APA and the
“composition and statutorily prescribed functions” of the Dental Board. Id. at 195,
593 S.E.2d at 767. The Watkins Court determined “the Board is composed of six
licensed dentists, one dental hygienist, and one layperson” and that the “Dental
Practice Act vests the [Dental] Board with broad authority to regulate the practice of
-8- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
dentistry, including the powers to grant or revoke a license and to enact rules and
regulations governing the profession.” Id. at 196-97, 593 S.E.2d at 768 (citations
omitted).
The Watkins Court reasoned that although the standard of care for health
providers in negligence cases is generally established by expert testimony that
“rationale is not necessarily controlling within the context of disciplinary proceedings
conducted by professional licensing boards where, as here, the factfinding body is
composed entirely or predominantly of experts charged with the regulation of the
profession.” Id. at 196, 593 S.E.2d at 767. The Court concluded, “[u]nder Leahy,
where knowledge of the requisite standard of care must be within the board’s
specialized knowledge and expertise, the board may apply the appropriate standard
even if no evidence of [the standard of care] is introduced.” Id. at 198, 593 S.E.2d at
769 (citation and quotation marks omitted). Accordingly, the Court held “the
[Dental] Board acted within its authority in determining that petitioner had breached
the applicable standard of care[.]” Id. at 209, 593 S.E.2d at 775.
Here, Petitioners contend expert testimony on the “manufacturers
specifications and installation instructions and standards prevailing in the industry”
was required for the Board to determine Petitioners violated those standards. We
disagree. As with both boards in Watkins and Leahy, the Board’s procedures for
administrative hearings is governed by North Carolina’s APA. See N.C. Gen. Stat. §
-9- INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
87-23(a) (2019) (“All of the charges [brought to the Board] shall be in writing and
investigated by the Board. Any proceedings on the charges shall be carried out by
the Board in accordance with the provisions of Chapter 150B of the General
Statutes.”). As our Supreme Court noted in Watkins, Section 150B-41 of our APA
expressly provides “[a]n agency may use its experience, technical competence, and
specialized knowledge in the evaluation of evidence presented to it.” Id. § 150B-41(d)
(2019); Watkins, 358 N.C. at 195, 593 S.E.2d at 767.
Accordingly, we look to the “composition and statutorily prescribed function”
of the Board in the case sub judice. First, the Board consists of seven appointed
members:
[O]ne member from a school of engineering of the Greater University of North Carolina, one member who is a plumbing or mechanical inspector from a city in North Carolina, one licensed air conditioning contractor, one licensed plumbing contractor, one licensed heating contractor, one licensed fire sprinkler contractor, and one person who has no tie with the construction industry to represent the interests of the public at large.
N.C. Gen. Stat. § 87-16 (2019). The Legislature, in mandating the Board be
comprised of licensed contractors from each industry the Board regulates as well as
a licensing inspector and a member of a school of engineering, has demonstrated that
it intended the Board have specialized knowledge and expertise. On 24 June 2018,
the date of Petitioners’ hearing, the Board was comprised of John Royal, a
professional engineer and the Board’s School of Engineering member, Robert Owens,
- 10 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
owner and operator of a consulting firm that specializes in construction and
engineering, William Sullivan, a licensed HVAC contractor, and Stuart Schwartz, a
licensed HVAC contractor and owner and operator of a HVAC contracting business.
In addition, the Board is “authorized by statute to develop rules and
regulations to govern [Plumbing, Heating, and Fire Sprinkler Contractors.]” See
Watkins, 358 N.C. at 195, 593 S.E.2d at 767. In 1931, the General Assembly created
the Board “to promote the health, comfort, and safety of the people by regulating
plumbing and heating in public and private buildings[ ]” upon the same principles
“that the Legislature has required a license of physicians, surgeons, osteopaths,
chiropractors, chiropodists, dentists, opticians, barbers, and others[.]” Roach v.
Durham, 204 N.C. 587, 591, 169 S.E. 149, 151 (1933) (citations and quotation marks
omitted). The General Assembly has directed, “to protect the public health, comfort
and safety, the Board shall establish two classes of licenses[ ]” and further granted
“[t]he Board shall prescribe the standard of competence, experience and efficiency to
be required of an applicant for license of each class, and shall give an examination
designed to ascertain the technical and practical knowledge of the applicant . . . .”
N.C. Gen. Stat. § 87-21(b)(1),(3) (2019).
The General Assembly has “empowered [the Board] to administer, interpret,
and enforce” its rules. Watkins, 358 N.C. at 195, 593 S.E.2d at 767. The Board is
expressly authorized
- 11 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
to revoke or suspend the license of or order the reprimand or probation of any plumbing, heating, or fire sprinkler contractor . . . who is guilty of any fraud or deceit in obtaining or renewing a license, or who fails to comply with any provision or requirement of this Article, or the rules adopted by the Board, or for gross negligence, incompetency, or misconduct, in the practice of or in carrying on the business of a plumbing, heating, or fire sprinkler contractor, or any combination thereof, as defined in this Article.
N.C. Gen. Stat. § 87-23(a); see 21 N.C. Admin. Code 50.0412(d) (2018) (“The Board
may suspend or revoke a license where it is found that the licensee has failed to
comply with the minimum standards of competence as set forth in 21 NCAC
50.0505(b).”) The Board’s rules provide “licensees shall design and install systems
which meet or exceed our minimum standards of the North Carolina State Building
Code, manufacturer’s specifications and installation instructions and standards
prevailing in the industry.” 21 N.C. Admin. Code 50.0505(b) (2018) (emphasis added).
As the Leahy Court held the Nursing Board was “required to adopt standards
regarding qualifications of applicants for licensure and to establish criteria which
must be met by an applicant in order to receive a license[,]” Leahy, 346 N.C. at 781,
488 S.E.2d at 248, the Legislature has expressly delegated the authority to the Board
here to “prescribe the standard of competence . . . required of an applicant for license
of each class[.]” N.C. Gen. Stat. § 87-21(3). Accordingly, we are persuaded, under
Leahy and Watkins, that the Board was not required to consider expert testimony
related to the “manufacturers specifications and installation instructions and
standards prevailing in the industry” as Petitioners contend.
- 12 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
In light of this holding, we now review the Record de novo to determine if the
trial court erred as a matter of law in affirming the Board’s conclusion Petitioners’
installation was incompetent and in violation of the Board’s regulations. At
Petitioners’ hearing, Jonathan Yerkes, Administrative Officer and Field Investigator
for the Board, Mr. Mumtaz, the original general contractor on The Cooking Pot
project, Ms. Ikuru, owner of The Cooking Pot, Michael Pickard, the contractor hired
to finalize installation of the kitchen hood, Ingram, and Howard Longacre, a roofer
hired by Ms. Ikuru’s property management company, all testified before the Board.
The Record before the trial court established: Petitioners “completed the
installation of the roof top unit, connect[ed] [it] to the existing duct work and installed
some new duct work for the hood system in the kitchen.” Ingram averred “[a]s far as
the rain water leak coming from the area of the unit I installed, I state when
installing I set the unit on top of the pre-existing platform.” Ingram conceded he
walked off the job prior to its completion. Ms. Ikuru informed the Board she has
“continuously experienced water leaking in the area under where Petitioners
installed the four ton unit.” Yerkes testified to the contents of photographs provided
by Ms. Ikuru. The photographs showed the new, four-ton HVAC unit placed on the
existing pad and curb. Yerkes observed “no new pad and no new curb had been
installed by Petitioners prior to the placement of the new HVAC system[,]” and the
“existing pad and curbing were visibly cracked and not properly sealed so as to allow
- 13 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
water to come in through the roof.” The general contractor, Mumtaz, testified that
“the [HVAC] unit and curb don’t match” and that “there was no flashing to alleviate
leaking[.]” Additionally, Longacre examined and photographed the roof, reporting
that the “HVAC unit had been placed on top of the curb which was allowing water to
. . . enter the building . . . .” Longacre also performed a water test that indicated
“[t]he cause of the leak is actually the new [HVAC] and curb.”
From this evidence the Board determined Petitioners’ work was incompetent
in violation of N.C. Gen. Stat. § 87-23. The trial court reviewed and summarized this
evidence in its Order and concluded this evidence supported the Board’s
determination. We agree. The Record reflects that Petitioners’ installation of the
HVAC unit caused The Cooking Pot to experience significant leaks. The Board, with
its specialized knowledge and expertise, determined based on this evidence that
Petitioners’ conduct was incompetent and did not “meet or exceed the minimum
standards of the North Carolina State Building Code, manufacturer’s specifications
and installation instructions and standards prevailing in the industry.” 21 N.C.
Admin. Code 50.0505(b). Although Petitioners contend passing inspection
establishes competence, we emphasize, as the Board argues, Petitioners are required
to also meet or exceed “manufacturer’s specifications and installation instructions and
standards prevailing in the industry.” Id. We further agree with the trial court that
the Board may use its expertise to evaluate the evidence before it, and accordingly,
- 14 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
we affirm the trial court’s Order and conclude the Board did not err as a matter of
law when it determined Petitioners were required to comply with “manufacturer’s
specifications and installation instructions and standards prevailing in the industry.”
B. Load Calculation
Petitioners next contend the trial court erred in affirming the Board’s
conclusion that Petitioners were incompetent for failing to conduct an independent
load calculation prior to installing the new HVAC unit. Petitioners cite the Board’s
regulation at 21 N.C. Admin. Code 50.0505(f), which states “[w]hen either a furnace,
condenser, package unit or air handler in an existing residential heating or air
conditioning system is replaced, the licensed HVAC contractor or licensed technician
is required to perform a minimum of a whole house block load calculation.” 21 N.C.
Admin. Code 50.0505(f). Petitioners emphasize that this regulation applies only to
residential HVAC units. The Board agrees with Petitioners that the regulation only
applies to residential units; however, the Board contends that Petitioners’ duty to
conduct an independent load calculation comes from Petitioners’ duty to “ensure that
the contract is performed in a workmanlike manner and with the requisite skill and
that the installation is made properly, safely and in accordance with applicable codes
and rules.” 21 N.C. Admin. Code 50.0505(a).
It is undisputed Petitioners relied on the building’s original load calculations
that were previously supplied to them. Our review of the Record indicates before the
- 15 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
renovation the building had a ten or twelve-ton HVAC unit on the roof. Because the
space was being upfitted to include a kitchen, the new, four-ton HVAC unit was
installed to service the kitchen. The Board received testimony from Yerkes stating
“[one] can use [a] . . . certified engineered load calculation, but he would have to verify
as a licensee that that load calculation is correct for what he’s putting in, which would
require him doing a load to ensure that that load is correct.” Ingram conceded he did
not verify the load calculation on which Petitioners relied.
The Board received testimony indicating that in order to perform the
installation in a competent manner, a licensee would have to verify the load
calculation to ensure it is correct. Additionally, the Board received evidence
indicating that the building was old and had been previously occupied by an
unrelated business. Accordingly, we conclude the trial court correctly determined
Petitioners violated the duty to “perform work in a workmanlike manner and with
the requisite skill and that the installation is made properly, safely and in accordance
with applicable codes and rules.” 21 N.C. Admin. Code 50.0505(a).
II. Substantial Evidence
Petitioners next contend the trial court’s Order affirming the Board’s Order for
HVAC installation and for license peddling is not supported by competent evidence.
[P’s br. p 14]. In reviewing Petitioners’ claim, the trial court appropriately applied
the whole-record test to determine if the Board’s decision was supported by
- 16 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
substantial evidence. See Watkins, 358 N.C. at 199, 593 S.E.2d at 769. “A court
applying the whole record test may not substitute its judgment for the agency’s as
between two conflicting views, even though it could reasonably have reached a
different result had it reviewed the matter de novo.” Id. (citation and quotation
marks omitted). “Substantial evidence is defined as relevant evidence a reasonable
mind might accept as adequate to support a conclusion.” Id. (citations and quotation
marks omitted).
A. HVAC Installation
Petitioners contend the Board’s conclusion that Petitioners’ HVAC installation
was incompetent is not supported by substantial evidence in the Record. Our review
of the Record, as outlined supra, reflects the whole record supports the Board’s
determination that Petitioners’ installation did not comply with the Board’s
regulations—specifically “manufacturer’s specifications and installation instructions
and standards prevailing in the industry”—and further that the Board was correct to
use their professional expertise when assessing the evidence before it. Accordingly,
the trial court properly concluded the Board’s decision is supported by substantial
evidence.
B. White Oaks Manor Permit
- 17 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
Petitioners next contend the Board’s conclusion that Petitioners were engaged
in license peddling is not supported by substantial evidence. Petitioners challenge
the Board’s Finding of Fact 15, which provides:
15. With respect to the job at White Oaks Manor located at 401 N. Morgan St. Shelby N.C., the testimony supports the inference that [Petitioners] knowingly sent employees of a contractor licensed in South Carolina but not North Carolina to obtain the permit to install two mini-split HVAC systems. The testimony by [Ingram] that he had planned to carry out the work himself a week after sending employees of another firm to get the permit is not credible. Simple projects like installation of ductless heat pumps (mini splits) would ordinarily receive permit and installation the same day. There was no evidence that [Petitioners] completed the installation or obtained a final inspection. The Board did not place weight on the statement of the South Carolina personnel that [Petitioners] utilized individuals for licensed work who were not bona-fide employees of Commercial Controls and paid workers in cash or 1099’s. Respondent’s actions constituted license peddling.
Our review of the Record as it pertains to Petitioners’ license peddling indicates
there is substantial evidence to support the Board’s Finding. Melton, Administrative
Assistant for the City of Shelby Building Inspection Department, averred that two
men, employed by Carolina Air, entered the Department on 13 June 2017 and
attempted to obtain a permit for Petitioners. The men informed Melton they received
1099s from Petitioners. Melton denied the men a permit and attempted to reach their
supervisor, Bill Bolin. When Melton contacted Bolin, she reported that he was
“vague” and informed her that he received a 1099 from Petitioners. At Petitioners’
- 18 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
hearing, the Board heard testimony from David Boulay, an Administrative Officer
and Field Investigator for the Board. Boulay began investigating Petitioners in 2017
after he received a complaint from Melton. Boulay testified that Bolin was evasive
when he attempted to meet with him and that “[Bolin] actually said to me on the
phone that he was paid [by Petitioners] with cash and 1099, and then [Bolin] later
changed his statement, when he actually gave me a consent agreement, which he
swore to, that he wasn’t paid with cash or 1099.”
Ingram averred that he had an agreement with Bolin “where they purchase
the equipment and [he] install[s] it.” He further stated “[Bolin] and his employees
are not on my pay roll” and that he does not pay them for their time or labor. Ingram
conceded he obtained the requested permits in person, but that he never completed
any work pursuant to the permit and that no final inspection on the permits occurred.
Ingram indicated he understood work could have been completed under the permit
by another. Accordingly, we are satisfied by the whole record that there is substantial
evidence in support of the Board’s determination that Petitioners were engaged in
license peddling in violation of 21 N.C. Admin. Code 50.0403. Thus, the trial court
did not err in affirming the Board’s decision.
Conclusion
- 19 - INGRAM V. N.C. STATE BD. OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
Accordingly, in light of the foregoing, the trial court’s Order affirming the
Board’s Order suspending Petitioners’ licenses for twenty-four months and ordering
twelve months of supervised probation is affirmed.
AFFIRMED.
Judge ARROWOOD and Judge COLLINS concur.
- 20 -