NORTH CAROLINA IN THE OFFICE OF



NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

GUILFORD COUNTY 00 SAP 1573

N.C. SUBSTANCE ABUSE PROFESSIONAL )

CERTIFICATION BOARD )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

LYNN CAMERON GLADDEN )

Respondent. )

THIS MATTER is on for hearing of Petitioner's Motion for Costs including attorney fees. Having heard evidence and argument from the parties, the Court makes the following:

FINDINGS OF FACT

1. Petitioner instituted this action to discipline Respondent pursuant to N.C.G.S. § 90-113.33.

2. Petitioner was established pursuant to N.C.G.S. § 90-113.30. One of the purposes of the Petitioner is to issue certifications for Certified Substance Abuse Counselors. Petitioner also has the power to discipline individuals to whom it has issued a certification as Certified Substance Abuse Counselor. N.C.G.S. § 90-113.33 Petitioner is funded through the fees it charges and other monies it collects. N.C.G.S. § 90-113.35

3. The Board has a full time paid executive director and a full time administrative assistant.

4. Although most other professional certification boards in North Carolina have diversion programs to work with individuals certified or licensed by those boards in overcoming or dealing with substance abuse problems. Petitioner has chosen not to have such a diversion program.

5. In the summer and early fall of 1999 Petitioner wrote to Respondent concerning certain complaints that had been made about her.

6. On September 13, 1999 Respondent wrote to Petitioner admitting that she had had a "slip" in sobriety but that she was seeking help from other counselors, had increased her AAA activities and meetings and was willing to go into treatment, either inpatient or outpatient.

7. In addition, Respondent spoke with Petitioner's attorney, Ann Christian, and proposed to settle any of the complaints against her by agreeing to go into counseling and having her certification suspended for a year.

8. Ms. Christian told her that she could not speak with her about that.

9. Respondent also sought to speak with Adam Robinson, chairman of the ethics committee for the Petitioner, but he would not discuss a settlement with her either.

10. At the time the Petitioner received the complaints about Respondent, Petitioner initiated an investigation about those complaints.

11. Petitioner did not use either its executive director or administrative assistant to contact the individuals who had made complaints, but instead employed a private investigator, P. E. Braswell, to investigate these complaints.

12. Petitioner did not instruct Braswell as to how to carry out the investigation.

13. Petitioner did not tell him to conduct this investigation by telephone rather than by personal interviews.

14. On or about October 30, 2000, Petitioner initiated this action seeking to revoke Respondents certification.

15. While it could have used either certified mail, or the Guilford County Sheriff's Office to serve the Notice of Hearing on Respondent, it chose to have Mr. Braswell take the document from Raleigh, drive to Greensboro, wait for Respondent to return home and then serve the Notice of Hearing on Respondent.

16. Mr. Braswell's bill for the service of that Notice of Hearing was $744.20. In similar fashion, when Petitioner chose to issue Subpoenas to witnesses it did not do that through use of any Sheriff's Office but instead had Mr. Braswell drive from Raleigh to serve the Subpoenas on those individuals.

17. Mr. Braswell charged $1,325.80 for service of those Subpoenas.

18. Petitioner was not justified in employing Mr. Braswell to serve the Notice of Hearing or the Subpoenas in this case rather than use either certified mail or the Sheriff's Office.

19. Mr. Braswell's investigation was lengthy and was not carried out in a reasonable manner. For example, Mr. Braswell chose to drive from Raleigh to interview people face to face rather than over the phone.

20. In addition, Mr. Braswell's work duplicated much of the work done by the Petitioner's attorneys. In fact, on many occasions, Mr. Braswell went with the Petitioner's attorney to interview witnesses.

21. Much of the time spent by Mr. Braswell was not needed. For example, no purpose was served by having Mr. Braswell present for the hearing, or to have him pick-up and drive witnesses to the hearing.

22. As early as January 5, 2001, Respondent's attorney sought to reach a settlement with Petitioner. This continued the efforts the Respondent had made herself as early as September 1999.

23. Petitioner never would discuss a possible settlement in this case until the Administrative Hearing in this case had been in process for some time. The discussion between the parties resulted in a settlement.

24. The settlement which the parties eventually reached is not vastly different from that proposed by Respondent's counsel in January, 2001 and by Respondent in the fall of 1999.

25. Had the Petitioner implemented a diversion policy, as do most professional certification boards in North Carolina, this proceeding would not have been necessary.

26. The costs and expenses incurred by Petitioner in employing P. E. Braswell of Braswell Investigative Services were extravagant, duplicative and not reasonably necessary.

27. Although Petitioner regularly employed Ann Christian to represent it and had Ms. Christian do the investigation of these charges, Petitioner decided to employ a second attorney, Nelson Harris, to also represent it at the hearing in this case.

28. The employment of a second attorney to represent Petitioner at the hearing in this case was duplicative, unnecessary and unreasonable.

29. Respondent does not have the financial capability of paying the approximately $34,000 Petitioner seeks as costs in this action.

30. Respondent's sole source of income is from her business, Assessment Counseling and Testing Services.

31. Because of the treatment mandated by the settlement agreement with Petitioner, the cost of required inpatient treatment for Respondent's substance abuse condition and the additional monies she has had to pay to operate her business while her certification has been suspended, Respondent's income is insufficient to support herself.

32. In its motion Petitioner seeks $11,582.64 to pay the bills of Mr. Braswell, $5,071.50 to pay the attorney fees incurred by Nelson Harris for the Petitioner and $17,403.55 to pay the attorney fees incurred by Ann Christian for the Petitioner, a total of $34,058.69.

Based upon the foregoing Findings of Fact, the Court makes the following:

CONCLUSIONS OF LAW

1. At common law, neither party to a civil action could recover costs. Costin v. Baxter,

29 N.C. 111 (1846); City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972). Costs are entirely creatures of legislation, without which they do not exist. Clerks Office v. Carteret County, 121 N.C. 29, 27 S.E. 1003 (1897); Charlotte v. McNeely, supra. Because the right to tax costs did not exist at common law and because costs are considered penal in nature, statutes relating to costs must be strictly construed. Charlotte v. McNeely, supra. Moreover, even when allowed by statute, costs and expenses unnecessarily incurred by a prevailing party will not be taxed against the unsuccessful party. Charlotte v. McNeely, supra.

2. Petitioner contends that it is entitled to an award of attorney fees under the provisions of N.C.G.S. § 90-113.33, which states in part: "When the Board exercises its authority under this Article to discipline a person, it may, as part of the decision imposing the discipline, charge the costs of investigations and the hearing to the person disciplined." Petitioner does not point to any statute which gives the Board authority to charge for attorney fees the Board incurs in the investigation and hearing. While costs can sometimes include attorney fees, attorney fees cannot be included except "as provided by law." N.C.G.S. § 7A-305(d)(3). And, "as provided by law" only occurs when there is express statutory authority for attorney fees. Charlotte v. McNeely, supra; Broadcasting System v. Tape Corp., 18 N.C.App. 183, 187, 196 S.E.2d 598, 602 (1973). In the absence of express statutory authority, attorney fees are not allowable as part of the costs.

3. Because N.C.G.S. § 90-113.33 does not expressly authorize attorney fees, because said statute must be strictly construed, and because Petitioner relies upon no other statutory provision to justify an award of attorney fees, attorney fees cannot be awarded as part of the costs in this proceeding. Therefore, the amount sought by Petitioner for attorney fees for its attorneys is not authorized under North Carolina law and should be denied.

4. The investigative services provided by Mr. Braswell were duplicative, unreasonable and unnecessary and therefore should be denied, except reasonable amounts for serving subpoenas and contacting witnesses by telephone, there being no evidence that other extraordinary means were required.

5. Petitioner also seeks to assess as part of the costs various mileage, meal and hotel bills. Such expenses in securing witnesses and attending a hearing are not recoverable and therefore must be denied. Charlotte v. McNeely, supra.

6. While Petitioner can choose to litigate its case in the way it has in this matter, it can only do so if it bears these extravagant, duplicative and unnecessary costs itself. There is no justification for taxing Respondent with these extravagant, duplicative and unnecessary costs.

7. When the Board exercised its authority to discipline a person, it may charge the costs of investigation and the hearing to the person disciplined. N.C.G.S. 90-113.33. However, Petitioner has failed to introduce into evidence any rational basis for arriving at the costs submitted for reimbursement, even after indication from the Court that such was needed.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge finds that Petitioner's Motion for Costs should be denied, in that Petitioner has failed to show that the costs were reasonable or necessary.

Further, based upon the evidence, the Court finds that:

a) service of subpoenas by the sheriff or registered mail was the most reasonable method to use in this matter

b) the interviews could have been done by telephone, interrogatories or other more reasonable means

c) Petitioner is entitled to reasonable costs, not to exceed $750.00.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b),(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency that will make the final decision in this contested case is the NC Substance Abuse Professional Certification Board.

This the 10 day of May, 2002

_________________________________

Sammie Chess, Jr.

Administrative Law Judge

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