261 N.C. App. 106
N.C. Ct. App.2018Background
- Winkler, a licensed H-3-II HVAC technician, inspected a hotel pool heater and later a guestroom fireplace/ventilation system after several guests died of carbon monoxide poisoning. He lacked CO-detection equipment and also admitted performing unlicensed HVAC work in the hotel lobby.
- The North Carolina State Board of Examiners of Plumbing, Heating & Fire Sprinkler Contractors (the Board) disciplined Winkler for misconduct; his license was suspended and remedial coursework required.
- Winkler appealed; the trial court initially affirmed. On appeal this Court (Winkler I) held the Board lacked jurisdiction to discipline Winkler for the pool-heater inspection and remanded for an order based only on the lobby HVAC installation misconduct.
- After remand the Board issued a revised order (probation and conditions). Winkler then sought attorneys’ fees under N.C. Gen. Stat. § 6-19.1 for fees incurred defending against the Board’s original broader allegations.
- The trial court awarded Winkler $29,347.47 under § 6-19.1; the Board appealed, arguing the statute excludes disciplinary actions by licensing boards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.C. Gen. Stat. § 6-19.1 permits fee awards for disciplinary actions by licensing boards | Winkler: the statutory phrase "or a disciplinary action by a licensing board" is included in the statute and thus disciplinary-board proceedings fall within § 6-19.1 | Board: the clause follows "other than" and, by punctuation and grammar, excludes ‘‘a disciplinary action by a licensing board’’ from the statute’s scope | Court reversed: § 6-19.1 excludes disciplinary actions by licensing boards; trial court erred in awarding fees |
Key Cases Cited
- Dickson v. Rucho, 366 N.C. 332 (2013) (statutory construction principle: ascertain and effectuate legislature's intent)
- Walker v. N.C. Coastal Resources Comm’n, 124 N.C. App. 1 (1996) (distinction between administrative review and judicial review under § 6-19.1)
- Crowell Constructors, Inc. v. Cobey, 342 N.C. 838 (1996) (quotation and treatment of § 6-19.1 in simplified form)
- Able Outdoor, Inc. v. Harrelson, 341 N.C. 167 (1995) (quotation and treatment of § 6-19.1 in simplified form)
- Burgess v. Your House of Raleigh, Inc., 326 N.C. 205 (1990) (avoidance of surplusage in statutory interpretation)
- Falin v. Roberts Co. Field Servs., Inc., 245 N.C. App. 144 (2016) (use of punctuation and parallel structure in statutory interpretation)