Berman, In re, 163

• Decision Date: 20 March 1957
• Docket Number: No. 163,163
• Parties: In the Matter of Revocation of License of Robert T. BERMAN.
• Court: North Carolina Supreme Court

Page 232

97 S.E.2d 232

245 N.C. 612

In the Matter of Revocation of License of Robert T. BERMAN.

No. 163

Supreme Court of North Carolina.

March 20, 1957

Clem B. Holding, Raleigh, and Ozmer L. Henry, Lumberton, for North Carolina State Board of Opticians, appellant.

W. K. Rhodes, Jr., Wilmington, for appellee.

PARKER, Justice.

The power to issue licenses to persons practicing as dispensing opticians before the onactment of G.S. Ch. 90, Art. 17, Dispensing Opticians, has been vested by the General Assembly in the North Carolina State Board of Opticians, provided they apply within the required time. G.S. § 90-242 provides that 'every person who has been engaged in the practice of a dispensing optician as defined in this article for a period of five (5) years or more, and who has been a resident of the State of North Carolina for two (2) years immediately prior to the date of the passage of this article, shall be eligible for and receive a license as a dispensing optician said person shall file an affidavit as proof of such practice with the Board.' In 4 A.L.R.2d is an elaborate annotation, pp. 667-717, in re the construction of a 'grandfather clause' in statutes licensing occupations. Robert T. Berman filed an affidavit with the North Carolina State Board of Opticians, in which he stated that he had the qualifications required by G.S. § 90-242, and the Board issued to him a license as a dispensing optician. In this proceeding the Board is seeking to revoke his license on the ground that he procured it by a material misrepresentation, in that he stated in his affidavit that he had been engaged in the practice of a dispensing optician as defined in Art. 17, Ch. 90, G.S. for a period of five years or more, whereas in truth and in fact he had not been so engaged in such practice for such a period of time.

It is clear that the Board had the right to refuse an application for a license requested by virtue of G.S. § 90-242, if it appeared that the applicant had not been engaged in the practice of a dispensing optician as defined in Art. 17, Ch. 90, G.S. for a period of five years or more. Certain grounds for revocation of a license issued by the Board are set forth in G.S. § 90-249. Fraud or misrepresentation, which is material, in the procurement of the license is not one of them, but the Board has inherent power, independent of statutory authority, to revoke a license it improperly issued by reason of material fraud or misrepresentation in its procurement. Attorney-General v. Gorson, 209 N.C. 320, 183 S.E. 392; Schireson v. Shafter, 354 Pa. 458, 47 A.2d 665, 165 A.L.R. 1133; Williams v. Dickey, 204 Okl. 629, 232 P.2d 637; Butcher v. Maybury, D.C., 8 F.2d 155; Vanaman v. Adams, 74 N.J.L. 125, 65 A. 204; Martin v. Morris, 62 N.D. 381, 243 N.W. 747; Volp v. Saylor, 42 Or. 546, 71 P. 980; Annotation 165 A.L.R. pp. 1141-1142, where cases are cited from 21 states; 53 C.J.S., Licenses, § 44, p. 650.

In Attorney-General v. Gorson, supra [209 N.C. 320, 183 S.E. 395], the Court said: 'This court has the inherent power to revoke a license to practice law in this state, where such license was issued by this court, and its issuance was procured by the fraudulent concealment, or by the false and fraudulent representation by the applicant of a fact which was manifestly material to the issuance of the license.'

In Schireson v. Shafer, supra, it was held that the power of a state to require a license implies the power to revoke a license which by reason of fraud in its procurement was improperly issued, and where a physician's license should never have been granted because of fraud or misrepresentation, the licensing authority has inherent power, independent of statutory authority, to revoke it.

In Butcher v. Maybury, supra , the Court said: 'The power of the state to require a license implies the power to revoke a license which has been improperly issued.'

G.S. § 90-249 states the procedure for revocation and suspension of licenses of dispensing opticians by the State Board of Opticians shall be in accordance with the provisions of Ch. 150 of the General Statutes, which is entitled Uniform Revocation of Licenses. G.S. § 150-23 provides 'the decision of the board shall contain (a) Findings of fact made by the board; (b) Conclusions of law reached by the board; (c) The Order of the board based upon these findings of fact and conclusions of law.'

G.S. § 150-27 sets forth the scope of review by the Superior Court of the Board's decision, and states that the Judge shall sit without a jury and may affirm the decision of the agency, or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of a person may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are unsupported by competent, material and substantial evidence in view of the entire record as submitted.

The administrative findings of fact made by the State Board of Opticians, if supported by competent, material and substantial evidence in view of the entire record, are conclusive upon a reviewing court, and not within the scope of its reviewing powers. Baker v. Varser, 240 N.C. 260, 82 S. E.2d 90; 42 Am.Jur., Public Administrative Law, Sec. 211, where great numbers of cases from State and Federal Courts are cited.

The fact that a statute provides for judicial review of administrative decisions makes it evident that such decisions are conclusive as to properly supported findings of fact. Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718.

The Court cannot substitute its judgment for that of the State Board of Opticians in making findings of fact. Baker v. Varser, supra; National Labor Relations Board v. Virginia E. & P. Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348; United States v. New River Co., 265 U.S. 533, 44 S.Ct. 610, 68 L.Ed. 1165; 42 Am.Jur., Public Administrative Law, pp. 632-3.

The General Assembly in explicit words has vested the power and function of appraising conflicting and circumstantial evidence, of determining the weight and credibility to be given the testimony, and of finding the necessary facts in the State Board of Opticians. 'The conclusiveness and nonreviewability of administrative findings of fact,' when supported by proper evidence, 'have often been rationalized on the ground that the administrative agency possesses the special knowledge and expertness that is required to pass upon such questions.' 42 Am.Jur., Public Administrative Law, p. 633.

G.S. § 90-236 sets forth what constitutes practicing as a dispensing optician, and reads: 'Any one or combination of the following practices when done for pay or reward shall constitute practicing as a dispensing optician: interpreting prescriptions issued by licensed physicians and/or optometrists; fitting glasses on the face; servicing glasses or spectacles; measuring of patient's face, fitting frames, compounding and fabricating lenses and frames, and any therapeutic device used or employed in the correction of vision, and alignment of frames to the face of the wearer.'

The term 'grandfather clause' in comparatively recent years 'has been applied to provisions in regulatory statutes or ordinances that extend certain prerogatives to persons theretofore established in the profession, occupation or business regulated.' 4 A.L.R.2d, annotation, p. 670.

The mere filing of an affidavit by Robert T. Berman with the State Board of Opticians as proof that he had been engaged in the practice of a dispensing optician as defined in G.S. Ch. 90, Art. 17, for a period of five years or more prior to the enactment of Art. 17, is not conclusive as to his right to receive a license, even though G.S. § 90-242 states the applicant shall file an affidavit as proof of such practice, since the essential fact for the granting of such license to Robert T. Berman is that he was in fact engaged in the practice of a dispensing optician during the time required by G.S. § 90-242. State ex rel. Copeland v. State Medical Board, 107 Ohio St. 20, 140 N.E. 660; Sherburne v. Board of Dental Examiners, 13 Idaho 105, 88 P. 762; Sanborn v. Weir, 95 Vt. 1, 112 A. 228; State v. Schmidt, 138 Wis. 53, 119 N.W. 647; Annotation 4 A.L.R.2d pp. 671-673. See Poole v. State Board of Cosmetic Art Examiners, 221 N.C. 199, 19 S.E.2d 635, 637, where the Court said: 'However, of necessity, such Board must find the facts with respect to these requirements.'

What does practicing as a dispensing optician, as defined in Art. 17, Ch. 90 of the General Statutes, prior to the passage of Art. 17 mean? In State ex rel. Krausmann v. Streeter, 226 Minn. 458, 33 N.W.2d 56, 57, 4 A.L.R.2d 662, the Court said: 'The general rule is that a practitioner of a trade or profession, in the contemplation of the grandfather clause, is one who habitually holds himself out to the public as such (Hart v. Folsom, 70 N.H. 213, 47 A. 603; State v. Bryan, 98 N.C. 644, 4 S.E. 522; Sanborn v. Weir, 95 Vt. 1, 112 A. 228), and, although the extent of his practice is not controlling, it must be sufficiently regular, according to the circumstances of the particular case, to denote a continuing occupation. Sanborn v. Weir, supra.' See annotation 4 A.L.R.2d pp. 680-684.

In Sanborn v. Weir, supra [95 Vt. 1, 112 A. 231] the Court said: 'Nevertheless 'practice,' like 'doing business,' does not denote a few isolated acts, but implies an occupation that is continuing.'

In State v. Bryan, 98 N.C. 644, 4 S.E. 522, 524, the defendant, a justice of the peace, was indicted for practicing law in a court of a justice of the peace in the county in which he held the office of justice of the peace. The Court said: 'There...