STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF SAMPSON 09 SOS 2342

|Jenny S Thomspon |) | |

|Petitioner |)) | |

| |))) | |

|vs. |) |DECISION |

| | | |

|NC Department of Secretary of State | | |

|Respondent | | |

On February 9, 2010, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Bolivia, North Carolina.

APPEARANCES

For Petitioner: Pro Se

4522 Noland Drive

Wilmington, NC 28405

For Respondent: Melissa H Taylor

Assistant Attorney General

NC Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Did Respondent properly deny Petitioner’s Application for Reappointment as a North Carolina Notary Public?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 10B et seq

18 NCAC 07B.0902(d)

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner: 1, 2

For Respondent: 1 -3

FINDINGS OF FACT

1. Petitioner is a citizen and resident of New Hanover County, North Carolina.

2. Respondent is the State agency in North Carolina responsible for enforcing the rules and regulations that govern individuals holding a Notary Public Commission in North Carolina.

3. For the past 35 years, Petitioner has been continuously commissioned by Respondent as a Notary Public.

4. On or about March 12, 2009, Petitioner submitted an Application for Reappointment as a Notary Public to Respondent. She indicated that she was employed at Coastal Thoracic Surgery as an insurance/billing specialist, and was commissioned as a Notary before July 10, 1991. She indicated that she has been continuously commissioned since July 10, 1991, and Respondent has never denied, revoked, restricted, or suspended her notary commission. In section/paragraph 18 of the application, Petitioner notarized her own signature.

5. By letter dated March 25, 2009, Respondent denied Petitioner’s Application for Reappointment for “notarizing your own signature.” Respondent explained that according to 18 NCAC 07B.0902(d), “The Director shall deny an application if the applicant notarizes his or her own signature.” Respondent advised Petitioner that she could either (1) reapply for commissioning as a Notary Public after taking the Notary Public Instructional Course, complete a new application for reappointment, and submit another $50.00 application fee, or (2) appeal Respondent’s decision by filing a contested case petition with the Office of Administrative Hearings.

6. On April 1, 2009, Petitioner filed a petition with the Office of Administrative Hearings appealing Respondent’s decision. Petitioner stated that she completed the Notary Public Reappointment Application incorrectly by mistakenly notarizing her own signature. She stated in her petition that:

When I filled out the form, I signed it and then I thought the form asked for my signature again and my notary seal. I was unaware that there was a problem until I was contacted by your office indicating that the form was filled out incorrectly. This was an error on my part as I am very much aware that I cannot notarize my own signature. I in no way intended to notarize my signature. This was a mistake and I apologize that I misinterpreted the form. I thought you needed to have my signature and notary seal on file in my office. . . . When I pulled out my copy of the form, I read it again and I see that this form is a little confusing and I do see why I made the mistake. Again, I have no intentions of notarizing my signature or anything that I am associated with. I am attaching another completed renewal form with my signature notarized by one of my co-workers for your review.

7. The preponderance of the evidence showed that in March of 1999, Petitioner submitted an Application for Reappointment to Respondent, but mistakenly notarized her own signature on that Application. When Respondent received Petitioner’s 1999 Reappointment application, it returned such form to Petitioner for correction. Petitioner corrected her mistake of notarizing her own signature by having another notary public notarize her signature on April 12, 1999. Petitioner resubmitted her corrected Reappointment Application to Respondent, and Respondent approved Petitioner’s Reappointment as a Notary Public.

8. The preponderance of the evidence at hearing showed that in 2004, Petitioner correctly completed the Application for Reappointment as a Notary Public. The 2004 Application was a two-page document. Under Section 8, page 1 of that form, Petitioner was required to list the name of her last commission, that commission’s expiration date and county, and place her notary public seal on such form. Under Section 13, page 2 of that application, Petitioner signed as the applicant, and had another notary public notarize her signature. (Resp Exh 2)

9. In 2005, the General Assembly changed the Notary Public Act. The Notary Public Reappointment Application was also changed or redesigned to incorporate such changes. The 2009 Application for Reappointment is a one-page document with 18 sections to be completed by the applicant. Under Section 4 of the application, Petitioner was required to list her name, expiration date, and county of her last commission. In section 18, the application asks the applicant to read the oath, print her name, and sign her name. Underneath Petitioner’s signature, the application lists the notary’s oath, notary’s signature, notary’s printed name, and “my commission expires” date.

10. At hearing, Petitioner acknowledged that she notarized her own signature on the 2009 Reappointment Application. However, Petitioner did so by mistake, as she misinterpreted section 18 of the application, and did not intend to notarize her own signature. Petitioner interpreted section 18 to mean Petitioner must provide her own signature and notary seal, so it would be on file in Respondent’s office. A review of section 18 of the 2009 application verifies why Petitioner misinterpreted the section. Without reading the instructions on the back of the application, that section can be confusing.

11. Petitioner knows she cannot notarize her own signature as she has been a notary since 1974. She does not notarize documents for money, but only notarizes documents for doctors at her office. She keeps her notary seal at work, and does not take it home. Petitioner took the notary public course in 1983. She is aware of the 2005 changes in the Notary Public Act, and maintains a current notary book in her office at work.

12. There was no fraud or forgery involved in Petitioner mistakenly notarizing her own signature on her 2009 Application for Reappointment. The “public interests” were neither compromised nor placed in jeopardy in any regard.

13. At hearing, Rebecca Hawington, a Notary Enforcement Supervisor for Respondent, explained that a Notary is a public officer of North Carolina, and should strictly comply with the Notary Public Act. She explained that pursuant to N.C. Gen. Stat. § 10B-20(c)(5), a notary cannot notarize a signature if you are a party to the record that is being notarized.

14. However, in its March 25, 2009 denial of Petitioner’s notary commission, Respondent failed to list N.C. Gen. Stat. § 10B-20(c)(5) as a reason for denying Petitioner’s notary commission. Respondent only listed 18B 07B.0902(d) as the basis or reason for denying Petitioner’s notary commission.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction of the subject matter and parties herein pursuant to Article 3 of Chapter 50B, and Chapter 10B of the North Carolina General Statutes.

2. The purposes of the Notary Public Act, N.C. Gen. Stat. § 10B-2, among others, are to promote, serve, and protect the public interests and to prevent fraud and forgery.

3. N.C. Gen. Stat. § 10B-5(d)(5) provides that Respondent may deny an application for a recommission if Respondent finds “the applicant has engaged in official misconduct" within the meaning of N.C. Gen. Stat. § 10B-3(15).

4. N.C. Gen. Stat. § 10B-3(15) defines “official misconduct” as either of the following:

a.       A notary's performance of a prohibited act or failure to perform a mandated act set forth in this Chapter or any other law in connection with notarization. [or]

b.         A notary's performance of a notarial act in a manner found by the Secretary to be negligent or against the public interest.

5. In this case, Petitioner admitted that she notarized her own signature. Therefore, technically, Petitioner engaged in official misconduct in violation of N.C. Gen. Stat. § 10B-3(15) and 18B NCAC 07.0902(d).

6. However, a preponderance of the evidence established that Petitioner mistakenly misinterpreted section 18 of the Reappointment Application, and mistakenly notarized her own signature on her 2009 Application for Reappointment. A preponderance of the evidence showed that Petitioner has continuously held a Notary Public commission for 35 years, only notarizes documents at her place of employment, maintains a current notary book in her office, and is aware of the 2005 changes in the Notary Act.

7. The preponderance of the evidence also established that in 1999, Petitioner made the same mistake as here, and notarized her own signature on her Reappointment Application. However, in 1999, Respondent recognized Petitioner’s mistake, and returned Petitioner’s application to her for correction and resubmission. After correcting her application having another notary notarize her signature, Petitioner resubmitted her Application, and Respondent approved her reappointment as a notary.

8. Respondent also argued that Petitioner violated N.C. Gen. Stat. § 10B-20(c)(5) by notarizing her own signature. N.C. Gen. Stat. § 10B-20(c)(5) provides that a notary shall not perform a notarial act if the notary is a “signer of, party to, or beneficiary of the record, that is to be notarized.” (Emphasis added) However, since Respondent did not use N.C. Gen. Stat. § 10B-20(c)(5), in its denial letter to Petitioner, as a basis for denying Petitioner’s notary commission, whether Petitioner violated that statute is not at issue in this appeal.

9. At hearing, Respondent argued that since the Notary Act substantially changed in 2005, Petitioner should retake the Notary Commission course, and reapply for her notary public commission. However, the basic requirements of the Notary Public Act, such as not notarizing one’s own signature, and not notarizing someone else’s signature without that person being physically present before the notary, did not change in 2005. The evidence at hearing clearly showed that Petitioner knows these basic requirements, and knows she cannot notarize her own signature. There was no fraud or public interests impairment involved in this application.

10. By using the word “may” in N.C. Gen. Stat. §§ 10B-5(d)(5), Respondent’s Secretary is not required to deny a Notary Commission when a notary violates Chapter § 10B-20(c)(5) or 18B .07B NCAC .0902(d), by mistakenly notarizing her own signature. Instead, Respondent’s Secretary has the discretion to impose a range of disciplinary action or conditions for violations of Chapter 10B. With such discretion, the intent of Chapter 10B is that Respondent’s Secretary may consider all the circumstances under which a Notary application or reapplication is made.

11. In its denial letter to Petitioner, Respondent cited 18 NCAC 07B .0902(d) as the reason for denying Petitioner’s notary commission. 18 NCAC 07B .0902(d) states that “Applicant notarization.  The Director shall deny an application if the applicant notarizes his or her own signature.” (Emphasis added) The historical note for 18B NCAC 07B.0902 cited N.C. Gen. Stat. §§ 10B-5 and 10B-14(f) as the statutory authorities for this administrative rule. In contrast to 18 NCAC 07B .0902(d), neither N.C. Gen. Stat. § 10B-5(d) nor 10B-14(f) provides that Respondent’s Secretary shall deny an application for a notary commission. Instead, those statutes provide that the Secretary may deny an application for commission, or suspend or revoke a notary instructor’s certification.

12. Given the circumstances surrounding Petitioner mistakenly notarizing her own signature, and the discretionary authority provided Respondent’s Secretary in N.C. Gen. Stat. § 10B-5(d), Respondent acted erroneously, and otherwise substantially prejudiced Petitioner’s rights by denying Petitioner’s Reappointment as a Notary Public. Given the circumstances surrounding Petitioner notarizing her own signature, Respondent otherwise substantially prejudiced Petitioner’s rights and acted erroneously by requiring Petitioner retake the Notary Public Instructional Course, reapply for a Notary Public Commission, and pay another $50.00 application fee. In considering the preponderance of the evidence, Respondent should exercise its discretion and approve Petitioner’s Reappointment Application without conditions.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent’s denial of Petitioner’s Application for Reappointment should be REVERSED. Based on the foregoing, Respondent should approve Petitioner’s Application for Reappointment, and renew Petitioner’s Notary Public Commission without any conditions.

NOTICE AND ORDER

The North Carolina Secretary of State’s Office will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 17th day of March, 2010.

________________________________

Melissa Owens Lassiter

Administrative Law Judge

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