27 N.C. App. 398 | N.C. Ct. App. | 1975
G.S. 93A-6 grants power to the Real Estate Licensing Board to suspend or revoke a license “where the licensee ... is deemed to be guilty of” (emphasis added) certain acts thereafter enumerated. This provision requires the Board to make a determination of the facts from the evidence before it and then conclude that the licensee is “guilty of” one or more of those acts before it can revoke or suspend a license. The conclusion that “there is substantial evidence” of a violation of the statute is not a determination of guilt. Substantial - evidence of a violation falls far short of the required finding that the licensee “is deemed guilty” of such violation. The licensee may offer substantial evidence of innocence. Where the evidence is. conflicting the
G.S. 93A-6 which empowers the Board to revoke the license of a real estate broker or a salesman is penal in nature, is in derogation of the common law, and must be strictly construed. In re Dillingham, 257 N.C. 684, 127 S.E. 2d 584 (1962) ; Licensing Board v. Coe, 19 N.C. App. 84, 198 S.E. 2d 19 (1973).
The courts will not review or reverse the exercise of discretionary power by an administrative agency except upon a showing of capricious, unreasonable, or arbitrary action, or disregard of law. The findings of the agency must be made in accordance with the legal meaning of the terms of the statute. 1 Strong, N. C. Index 2d, Administrative Law, § 5, p. 43 (1967).
Because of the failure to find as a fact the acts or conduct constituting a violation of G.S. 93A-6(a)(8) and to conclude that the licensee “is deemed to be guilty” of such violation, this proceeding is remanded to the Superior Court for remand to the North Carolina Real Estate Licensing Board for vacation of the license suspension, and for further proceedings not inconsistent with this opinion.
Reversed and remanded.
