An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

 NO. COA14-525

NORTH CAROLINA COURT OF APPEALS

Filed: 16 December 2014

GWENDOLYN GILLINS FENNELL

WIMES,

Petitioner,

v. Wake County

No. 12 CVS 16201

NORTH CAROLINA BOARD OF

NURSING,

Respondent.

Appeal by plaintiff from order entered 3 February 2014 by 

Judge Robert F. Johnson in Wake County Superior Court. Heard in 

the Court of Appeals 8 October 2014.

John M. Kirby, for Petitioner-appellant.

Allen, Pinnix & Nichols, P.A., by M. Jackson Nichols, Anna 

Baird Choi, and Catherine E. Lee, for Respondent-appellee.

ELMORE, Judge.

On 3 February 2014, Judge Robert F. Johnson affirmed, in 

part; reversed, in part; and modified, in part, the North 

Carolina Board of Nursing’s (“the Board”) Final Agency Decision 

(“FAD”) reinstating Gwendolyn Gillins Fennell Wimes’s

(“plaintiff”) nursing license on a probationary basis. On 
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appeal, plaintiff argues the trial court erred by: (1) affirming 

the Board’s imposition of probationary conditions, (2) failing 

to find that the FAD was arbitrary and capricious, (3) affirming 

the Board’s use of official notice despite the absence of

evidence of the noticed facts in the record or notice to 

plaintiff prior to the hearing, and (4) affirming the Board’s 

erroneous seventh finding of fact. After careful consideration, 

we affirm the trial court’s order. 

I. Background

On 17 May 2013, the Board decided to reinstate plaintiff’s

nursing license subject to probationary conditions for a period 

of six months following a reinstatement hearing. The Board 

issued its FAD after the following evidence was presented: In 

February 2005, the Board received a complaint from the staff at 

Erwin Rehabilitation Center (“the Center”) concerning plaintiff. 

Specifically, the Director of Nursing at the Center learned that

a nurse was “not acting right” and appeared to be “sleeping[,]

standing up at the cart[.]” The Director discovered plaintiff, 

a nurse at the Center, leaning on a cart holding a syringe in 

her hand with her eyes closed. Plaintiff exhibited indicators 

of impairment such as slow movement, slurred speech, and delayed 
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response time in answering questions. When questioned, 

plaintiff admitted having taken Valium before coming to work.

On 25 July 2005, plaintiff met with Donna Mooney, the 

Board’s investigator, to speak about the incident. During the

meeting, plaintiff admitted that she had taken Valium in 

connection with a back surgery conducted five and a half years 

earlier. She also admitted that “her depression had something 

to do with that as well.” The pair also discussed certain 

deficiencies in plaintiff’s documentation with respect to

medications she had administered to her patients. Mooney also

observed that throughout the meeting, plaintiff’s eyes appeared 

droopy and her speech slow.

Plaintiff declined to participate in the Board’s 

alternative program for chemical dependency, and she voluntarily 

surrendered her license on 25 July 2005. Mooney told plaintiff 

that a voluntary surrender is public information, is considered 

a formal disciplinary action, and would be reported as an 

impaired-on-duty case. Plaintiff signed a consent-to-surrender 

form on 25 July 2005. The form explained that she would have to 

provide all evidence requested by the Board before any future 

petition for reinstatement would be considered.
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During the next few years, plaintiff sent letters to and 

called the Board requesting reinstatement of her license. Each 

time, she received a response letter from the Board explaining 

the reinstatement process, including the “steps necessary for an 

individual to take in order to meet requirements for 

reinstatement of the license.” Kathleen Privette, the Board’s 

Manager for Drug Monitoring Programs, sent plaintiff at least 

four letters explaining what documents plaintiff should submit 

in order to be considered for reinstatement.

During this time period, plaintiff participated in a drug 

screening program as one of the prerequisites for her 

reinstatement. Screening began on 14 November 2011, but 

plaintiff failed to call on each of the next three days to 

determine if she was to test.

On 12 December 2011, plaintiff tested positive for 

Benzodiazepine and metabolites of alcohol. Plaintiff claims she 

tested positive due to her consumption of prescription Geritol. 

However, since she failed to submit a Prescription 

Identification Form in accordance with the drug screening 

program guidelines, plaintiff was considered to have failed this 

screening. 
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On 19 and 27 January 2012, plaintiff tested positive for 

codeine, hydrocodone, morphine, nordiazepam, oxazepam, and 

temazepam. Once again, because plaintiff did not submit the 

Prescription Identification Forms in connection with her 

prescriptions prior to testing, she failed these screens.

On 9 February 2012, plaintiff failed to report for another 

drug screen and was required to begin a four-month-long drug 

screening process. Plaintiff subsequently filed a petition for 

reinstatement. 

Following a full evidentiary hearing, the Board entered its 

FAD on 17 May 2013, ordering that plaintiff’s license would be 

reinstated, following completion of a Board approved refresher 

course, subject to probationary conditions that would remain in 

effect for six months. The conditions included:

1. Must comply with the Board’s Probation 

Program. Licensee shall fully comply with 

the terms and conditions of the Probation 

Program established by the Board and 

cooperate with representatives of the Board 

in its monitoring and investigation of the 

licensee’s compliance with the Program. 

2. May not serve in a volunteer position 

in any healthcare related licensed position 

while under probation conditions. 

3. Must notify the Board, in writing 

within five (5) days of any change in 

address or Employment status. This includes 

new employment or probation, suspension, 
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termination/resignation from employment.

. . . 

4. Must inform prospective supervisor of 

probation conditions during the interview 

process and share a copy of these conditions 

prior to beginning employment. 

5. Must have quarterly written performance 

reports submitted to the Board from all 

employers. The quarterly reports must 

involve three (3) consecutive months of 

employment in the same facility and must 

show an average of sixty four (64) hours 

worked per month.

6. Must continue to perform duties in a 

safe and competent manner, satisfactory to 

the Board. 

7. Must notify the Board, by telephone 

within 24 hours and, in writing, within five 

(5) days of any DUI, misdemeanor/felony 

charges. Following final disposition of the 

charges, notify the Board, by telephone, 

within 24 hours, and in writing, within five 

(5) days of the outcome. 

8. During the period of probation shall 

appear in person at interview/meetings as 

directed by the Board.

9. All conditions of this probationary 

license shall be completed within twelve 

(12) months or this license shall become 

void unless modified by the Board.

10. Must submit to random drug screens 

showing chain of custody.

11. Must remain alcohol/drug free. 

12. Must submit within five (5) days 
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healthcare provider medication reports to 

the Board when prescription medications are 

ordered or refilled.

13. Must submit a statement to the Board in 

writing within three (3) days when takes an 

over the counter antihistamine, 

decongestant, or cough syrup.

Plaintiff appealed the FAD to Wake County Superior Court. The 

trial court affirmed the FAD, in part; reversed the FAD, in 

part; and modified the FAD, in part. Most notably, the court 

changed Probationary Condition No. 9 to provide, in relevant 

part: 

Licensee will be issued a Probationary 

License for six (6) months but not longer 

than twelve months to successfully comply 

with all conditions. If conditions are not 

completed after twelve (12) months and 

Licensee desires additional time to fulfill 

such conditions, Licensee may request to 

appear at Licensure Review Panel (LRP) to 

request an extension of probationary 

conditions in order to complete the 

conditions. If Licensee does not request to 

appear before LPR, the license will be 

suspended in accordance with the Order. The 

probationary period may also be modified by 

mutual consent of parties.

II. Analysis

A. Probationary Conditions

Plaintiff first argues that the trial court erred in 

affirming the probationary conditions imposed by the Board 
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because those conditions were in excess of its statutory 

authority. See N.C. Gen. Stat. § 90-171.37(1)–(8) (2013). 

Specifically, she claims that before the Board could place 

restrictions on her nursing license, it was required to make one 

of eight findings (or justifications) set out in N.C. Gen. Stat.

§ 90-171.37. See id. In this case, plaintiff claims the FAD

does not contain the required findings. As such, she argues the 

Board erroneously imposed conditions on her nursing license. We 

disagree.

In examining the Superior Court’s review of an agency’s 

decision, this Court must inspect the court’s order and ask: (1) 

“whether the trial court exercised the appropriate scope of 

review[,]” and, if so, (2) “whether the court did so properly.” 

Amanini v. N. Carolina Dep't of Human Res., N.C. Special Care 

Ctr., 114 N.C. App. 668, 675, 443 S.E.2d 114, 118–19 (1994). In 

reviewing an agency’s decision, the duty of the Superior Court 

and this Court “is not to make findings of fact, but rather to 

apply the appropriate standard of review to the findings and 

conclusions of the underlying tribunal.” Brunson v. Tatum, 196 

N.C. App. 480, 484, 675 S.E.2d 97, 100 (2009) (citation and 

quotation marks omitted). On appeal, questions of law receive 

de novo review, while questions of fact are reviewed under the 
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whole record test. Early v. Cnty. of Durham, Dep’t of Soc. 

Servs., 193 N.C. App. 334, 341, 667 S.E.2d 512, 519 (2008). 

Assuming arguendo that N.C. Gen. Stat. § 90-171.37 governs, 

as plaintiff contends, the trial court did not err by affirming 

the Board’s decision because the Board made the required 

findings. 

This Court has recognized a lack of case law pertaining to

N.C. Gen. Stat. § 90-171.37. See Cafiero v. N. Carolina Bd. of 

Nursing, 102 N.C. App. 610, 619, 403 S.E.2d 582, 587 (1991) 

(“Petitioner cites no case construing § 90-171.37, and we are 

aware of none.”). Therefore, in interpreting the statute, the

plain language of the statute and the intent of the legislature 

controls. See In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371 

(1978).

The precise language of N.C. Gen. Stat. § 90-171.37 does 

not expressly require specific findings of fact, but rather 

broadly specifies eight grounds on which the Board may refuse to 

issue a license or impose probationary conditions upon a 

licensee: 

[T]he Board shall have the power and 

authority to . . . invoke other such 

disciplinary measures, censure, or probative 

terms against a licensee as it deems fit and 

proper; in any instance or instances in 
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which the Board is satisfied that the 

applicant or licensee:

(1) Has given false information or has 

withheld material information from the 

Board in procuring or attempting to 

procure a license to practice nursing.

(2) Has been convicted of or pleaded guilty 

or nolo contendere to any crime which 

indicates that the nurse is unfit or 

incompetent to practice nursing or that 

the nurse has deceived or defrauded the 

public.

(3) Has a mental or physical disability or 

uses any drug to a degree that 

interferes with his or her fitness to 

practice nursing.

(4) Engages in conduct that endangers the 

public health.

(5) Is unfit or incompetent to practice 

nursing by reason of deliberate or 

negligent acts or omissions regardless 

of whether actual injury to the patient 

is established.

(6) Engages in conduct that deceives, 

defrauds, or harms the public in the 

course of professional activities or 

services.

(7) Has violated any provision of this 

Article.

(8) Has willfully violated any rules 

enacted by the Board.

N.C. Gen. Stat. § 90-171.37 (emphasis added).
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While the Board in this case neither utilized the precise 

language of the statute in its FAD nor labeled its statements 

“findings of fact,” it did reference a concern for public 

safety, as well as the enumerated grounds of drug use and public 

health as the justification for imposing probationary conditions 

in the following findings:

4. It was reported that on January 14, 2005, 

[plaintiff] was observed “sleeping standing 

up at the cart” and was described as “not 

acting right.” The Director of Nursing 

specifically described her as standing in 

front of the medication cart with a syringe 

in her hand, elbows propped on the cart with 

her eyes closed. She was described as being 

slow to respond verbally and physically, her 

words were slurred, very slow and 

deliberate, all behaviors that could be 

construed to demonstrate impairment.

. . . 

25. At the time of surrender of her license, 

[plaintiff] was alleged to be impaired on 

duty. She admitted to consuming a Valium, a 

drug that could impair her ability to 

practice nursing prior to work. [Plaintiff]

admitted that she still has a valid 

prescription for this medication. It is 

reasonable, prudent and consistent with 

ensuring that [plaintiff] is a safe 

practitioner to require she submit to random 

urine drug screens upon re-entry into the 

practice of nursing.

26. Without these safeguards in place, the 

Board cannot fulfill its mandate to ensure 

that [plaintiff] is safe and competent to 

practice.
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Taken together, these findings demonstrate that plaintiff

used a drug to a degree that interfered with her fitness to 

practice nursing, and engaged in conduct that endangered the 

public health, such that probationary conditions were 

appropriate pursuant to N.C. Gen. Stat. § 90-171.37. See id. 

Because the Board’s findings of fact satisfy the 

requirements of N.C. Gen. Stat. § 90-171.37, the trial court did 

not err by affirming the Board’s FAD with respect to this issue.

B. Arbitrary and Capricious

Next, plaintiff argues that the probationary conditions 

imposed by the Board are arbitrary and capricious as a matter of 

law. Specifically, plaintiff asserts there were no grounds for 

the imposition of conditions because she was never disciplined 

for misconduct and that the conditions imposed were overly 

burdensome. We disagree. 

In determining whether the Board’s action was arbitrary and 

capricious, this Court must apply “the whole record test.” See 

Early, supra. “When utilizing the whole record test, . . . the 

reviewing court must examine all competent evidence (the whole 

record) in order to determine whether the agency decision is 

supported by substantial evidence.” Mann Media, Inc. v. 
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Randolph Cnty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 17 

(2002) (quotation marks omitted). Substantial evidence is any 

relevant evidence which is reasonably adequate to support a 

conclusion. Lackey v. N.C. Dep’t of Human Res., 306 N.C. 231, 

238, 293 S.E.2d 171, 176 (1982). “The ‘whole record’ test does 

not allow the reviewing court to replace the Board’s judgment as 

between two reasonably conflicting views, even though the court 

could justifiably have reached a different result had the matter 

been before it de novo.” Thompson v. Wake Cnty. Bd. of Educ., 

292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977). 

In determining whether an agency’s action was arbitrary and 

capricious, we have previously held the test is whether the 

action was “patently in bad faith, or whimsical in the sense 

that they indicate a lack of fair and careful consideration or 

fail to indicate any course of reasoning and the exercise of 

judgment[.]” Lewis v. N. Carolina Dep’t of Human Res., 92 N.C. 

App. 737, 740, 375 S.E.2d 713, 714 (1989) (citations and 

quotation marks omitted).

In this case, to ensure she was fit to practice, the Board 

conditioned plaintiff’s relicensing on the taking of a refresher 

course and the maintenance of a probationary license with 

conditions placed on it for a term of six months. The Board 
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imposed these conditions based on evidence that in 2005 

plaintiff took Valium prior to her shift, acknowledged overusing 

the substance in connection with her depression, and lacked 

complete documentation of medication dispensed during her shift.

Furthermore, the FAD contained findings that, while seeking 

reinstatement of her license, plaintiff did not comply with the 

Board’s requirements when she failed to appear for drug testing, 

failed to submit requisite Prescription Identification Forms in 

a timely manner, and tested positive for banned substances. 

Evidence of plaintiff’s conduct in 2005 and her subsequent drug 

screening failures amount to “substantial evidence” supporting 

the imposition of probationary conditions on her license. 

In light of plaintiff’s conduct, the probationary measures

are not “patently in bad faith,” lacking a rational connection 

to the Board’s concerns, or unduly burdensome because they 

directly further the Board’s objective of ensuring plaintiff can 

safely and competently practice as a nurse over a reasonable

period of time. Id. Additionally, the trial court adjusted the 

probationary period to plaintiff’s benefit, extending the window 

of time for completing the conditions to twelve months. As 

such, the Board’s FAD imposing probationary conditions upon

plaintiff’s license was not arbitrary and capricious. 
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Accordingly, we hold that the trial court did not err by 

affirming, in part, and modifying, in part the FAD on this 

issue.

C. Official Notice

Next, plaintiff argues the Board improperly took “official 

notice” that “Valium is a Scheduled [sic] IV Controlled 

Substance . . . that may impair an individual’s ability to 

render safe and competent care.” While plaintiff does not 

dispute the Board’s authority to take official notice, she 

contends that no evidence of the supposed effect of Valium was 

presented to the Board, and therefore, such notice was 

unsupported by the evidence. Plaintiff also claims she was 

denied the “earliest practicable” notice when the Board decided 

to mention the effects of Valium in its order. We disagree. 

i. No Evidence in the Record

Plaintiff argues the noticed facts concerning Valium are 

unsupported by evidence in the record. Even if this is true, it 

does not bar the Board from taking official notice of the fact 

that Valium may impair a nurse’s ability to render safe, 

competent care to patients. 

Pursuant to N.C. Gen. Stat. § 150B-41(d) (2013), 

“[o]fficial notice may be taken [by an agency] of all facts of 
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which judicial notice may be taken and of other facts within the 

specialized knowledge of the agency. . . . An agency may use 

its experience, technical competence, and specialized knowledge

in the evaluation of evidence presented to it.” The Board’s 

specialized knowledge “includes knowledge of the standard of 

care for nurses[,]” and thus, “[t]here is no reason it should 

not be allowed to apply this standard if no evidence of it is 

introduced.” Leahy v. N. Carolina Bd. of Nursing, 346 N.C. 775, 

781, 488 S.E.2d 245, 248 (1997). 

In the case at bar, the Board’s knowledge of the relevant 

standard of care coupled with the availability of sufficient 

resources to permit it to quickly determine the possible 

impairing effect of Valium on an individual allowed the Board to 

take official notice without evidence in the record relating to 

Valium. See N.C. Gen. Stat. 8C-1, Rule 201 (2013). 

ii. Earliest Practicable Notice

Next, plaintiff argues that the Board erred by failing to 

provide notice of the noticed fact before the time of the 

hearing. We disagree. 

N.C. Gen. Stat. § 150B-41(d) simply requires the Board to 

inform the parties of the noticed fact “at the earliest 

practicable time.” N.C. Gen. Stat. § 150B-41(d). While we can 
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find no case law defining this term within the context of an 

administrative hearing, the plain language of the statute does

not require prior notice before a hearing. The statute merely 

requires notice as early as is practicable, depending on the 

circumstances of each case. Id. 

Here, there is no evidence in the record that either party 

requested that the Board take official notice that Valium may 

impair a nurse’s ability to provide appropriate and safe care to 

a patient. As such, the earliest practicable time the Board 

could have taken official notice was when it evaluated the 

evidence presented during the hearing. As such, plaintiff could 

not have received notice before the hearing. Thus, the Board 

complied with its statutory obligation to provide the earliest 

practicable notice. As such, the trial court did not err by 

affirming the FAD with respect to this issue. 

D. Seventh Finding of Fact

Finally, plaintiff argues the FAD’s seventh finding of fact

is unsupported by substantial competent evidence. The finding 

of fact provided: 

Once questions were raised about 

[plaintiff’s] behavior, a limited 

accountability audit was conducted on her 

sign-outs of Valium, Percocet and Oxycodone. 

Discrepancies were noted in her sign-outs of 

Percocet. [Plaintiff] during the hearing 
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admitted that she was shown the Medication 

Administration Records (MAR) during the 

investigation in the facility, and that she 

did make a medication error involving the 

Percocet.

Specifically, plaintiff argues there was no testimony 

before the Board regarding the audit or discrepancies within her 

paperwork. We disagree. 

“[W]here the findings of fact of an administrative agency 

are supported by substantial competent evidence in view of the 

entire record, they are binding on the reviewing court[.]” N. 

Carolina Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 

663, 599 S.E.2d 888, 897 (2004). 

During the reinstatement hearing, Mooney testified: 

I also showed [plaintiff] copies of her 

documentation, which had some discrepancies 

related to the documentation of her 

medications during her shift, and she 

finally, after looking at the documentation, 

admitted that there was some documentation 

lacking . . . [and] that she was taught that 

if the medication wasn’t documented, then it 

was not done; it had not been given.

Plaintiff also stated that, “[i]f I made a medication error, and 

[the Board] said that I made a medication error, I didn’t sign 

the MAR, then I’m willing to take the medication error . . . 

course, because they did not write me and tell me anything other 

than the fact that I made a medication error.”
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Taken together, such testimony provides substantial 

competent evidence that an audit occurred and there were 

discrepancies within plaintiff’s documentation. Accordingly, 

the trial court did not err by affirming the FAD with respect to

this issue.

III. Conclusion

In sum, we conclude that the Board’s FAD was not arbitrary 

and capricious. The Board imposed lawful probationary 

conditions against plaintiff’s license and properly took 

official notice that Valium can impair a nurse’s ability to 

provide safe and competent care. Moreover, the Board’s seventh 

finding of fact was supported by substantial and competent 

evidence. Accordingly, the trial court did not err by 

affirming, in part, modifying, in part, and reversing, in part, 

the FAD.

Affirmed.

Judges BRYANT and ERVIN concur.

Report per Rule 30(e).