<p>STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF COLUMBUS 05 SOS 0310</p><p>______</p><p>Barbara Jane Kelly, ) Petitioner, ) ) vs. ) DECISION ) North Carolina Secretary of State, ) Respondent. ) ______</p><p>THIS MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge (ALJ), on July 14, 2005, in Bolivia, North Carolina. </p><p>APPEARANCES </p><p>For Petitioner: Barbara Jane Kelly, pro se Whiteville, North Carolina</p><p>For Respondent: Melissa H. Taylor, Assistant Attorney General Raleigh, North Carolina</p><p>ISSUE</p><p>Whether the Notary Public Section of the North Carolina Department of the Secretary of State properly revoked the Notary Public Commission of Petitioner?</p><p>EXHIBITS</p><p>For Petitioner: No Exhibits submitted</p><p>For Respondent: Exhibits A-D</p><p>WITNESSES</p><p>1 Called by Petitioner Barbara Jane Kelly Gregory Kelly</p><p>Called by Respondent Sheila Dorsett Betty Baxter Marvin Clark Daran Dodd Gayle Holder</p><p>BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. From official documents in the file, sworn testimony of the witnesses, and other competent and admissible evidence, it is found as a fact that:</p><p>FINDINGS OF FACT</p><p>1. Petitioner appeared pro se and Respondent was represented by counsel. The parties stipulated to the jurisdiction of the Office of Administrative Hearings (OAH) and that both had received timely notice of the hearing.</p><p>2. The Petitioner, Barbara Jane Kelly, was first issued a Notary Public Commission by Respondent in 1966. The Respondent is an agency of the State of North Carolina and issues Notary Public Commissions pursuant to N.C. Gen. Stat. § 10A et seq.</p><p>3. The purpose of the Notary Public Act, N.C. Gen. Stat. § 10A-1 et seq., is to promote, serve, and protect the public interests and to prevent fraud and forgery. </p><p>4. In May, 2003, an attorney for the city of Whiteville gave the daughters of Ms. Zonnie Gaines a warranty deed listing Zonnie Gaines as Grantor and the City of Whiteville as Grantee. One of the daughters knew the Petitioner. She and her sister, and the Petitioner, went to the nursing home where Ms. Gaines resided to seek to have her (Gaines) sign the warranty deed in the presence of Petitioner, a notary public.</p><p>5. On May 22, 2003, Petitioner notarized the warranty deed signed by Ms. Zonnie Gaines as the Grantor. Ms. Gaines made an “X” as her signature. A statement by one of Ms. Gaines’ daughters who acted as a witness to the deed, shows that Ms. Gaines’ hand was shaking so badly that, “I had to help my Mom sign the paper by holding her (w)rist.” (Respondent’s Exhibit C)</p><p>2 6. Ms. Gaines had been in the Premier Living Nursing Home in Lake Waccamaw for several years. A letter signed by Ms. Gaines attending physician, Dr. Essam S. Eskander on February 28, 2001, reveals that Ms Gaines had been incompetent since February 2000. (Respondent’s Exhibit B) Petitioner was unaware of this letter.</p><p>7. Ms. Betty Baxter, Director of Social Work, at the Premier Living Nursing Home was Ms. Gaines social worker. Ms. Baxter had performed quarterly assessments of Ms. Gaines prior to and after May 22, 2003. Ms. Baxter’s assessments of Ms. Gaines demonstrated that she was disoriented as to person, place, time and situation. Ms. Gaines required total care. She could not take care of herself prior to or at any time after May 22, 2003. Moreover, Ms. Gaines’ cognitive abilities were severely impaired. She was non-verbal and mumbled incoherently. Ms. Gaines died prior to this hearing.</p><p>8. Ms. Baxter testified that a lay person, upon seeing Ms. Gaines in the nursing home, could have determined that Ms. Gaines was incompetent and could not sign any legal documents.</p><p>9. Petitioner told Respondent’s investigator that Ms. Gaines made noises when she signed the deed but Petitioner could not determine if the noises were positive or negative. Petitioner stated that Ms. Gaines did not read the document and she couldn’t recall if anyone read the whole document to her. Petitioner testified that she believed that a judge had to declare a person incompetent before they would be considered so.</p><p>10. Petitioner notarized a deed signed by Ms. Zonnie Gaines, the Grantor named in a warranty deed. Ms. Gaines was mentally incompetent at the time the deed was “signed” to know and understand what it was that she was marking. Petitioner should have known from all of the circumstances surrounding the placement of an “X” mark on a warranty deed by Ms. Gaines, that Ms. Gaines was mentally incapable of signing a legal document of any kind. </p><p>11. On December 29, 2004, Respondent revoked Petitioner’s Notary Public Commission for engaging in official misconduct within the meaning of N.C. Gen. Stat. § 10A-3(6).</p><p>BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:</p><p>CONCLUSIONS OF LAW</p><p>1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this action pursuant to Chapters 150B and 10A of the North Carolina General Statutes. The parties received proper notice of the hearing in this matter. To the extent that the findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they should be so considered without regard to the given labels.</p><p>3 2. Incompetent to know and sign a legal document does not mean total adjudicated incompetence. A person signing a document to be notarized must understand and know what he or she is signing. </p><p>3. Ms. Gaines, the Grantor in the warranty deed in question, was disoriented as to person, place, time, and situation at the time she signed the deed. Her condition was obvious to a non- medical person. A lay person, upon seeing Ms. Gaines in her nursing home, could have made a determination that Ms. Gaines was incompetent to know and understand what she was signing and the significance of the signing.</p><p>4. N.C. Gen. Stat. § 10A-13(d) provides that Respondent may revoke a notarial commission on any ground for which an application for a commission may be denied under N.C. Gen. Stat. § 10A-4(c); and N.C. Gen. Stat. § 10A-4(c)(3) provides that Respondent may deny an application for a commission if the applicant has engaged in official misconduct within the meaning of N.C. Gen. Stat. § 10A-3(6). It is incumbent on a Notary Public to determine whether the person signing the document that is going to be notarized, understands what is being signed and is oriented as to person, place, time, and situation. </p><p>5. Respondent has carried its burden of proof in that there was substantial evidence that Ms. Gaines was incompetent at the time she signed the deed in question. Petitioner observed and should have been aware that Ms. Gaines was disoriented and incapable of signing a legal document, and as such Petitioner should not have notarized the “X” mark made by Ms. Gaines.</p><p>BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following: DECISION</p><p>It is the decision of the Undersigned that Respondent’s action in revoking Petitioner’s Notary Public Commission was proper and lawful and in accordance with the applicable State standards. </p><p>NOTICE</p><p>The agency making the final decision in this contested case shall adopt the Decision of the Administrative Law Judge unless the agency demonstrates that the Decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record.</p><p>The agency is required to give each party an opportunity to file exceptions to this Decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).</p><p>In accordance with N.C. Gen. Stat. § 150B-36, the agency shall adopt each finding of fact</p><p>4 contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence, giving due regard to the opportunity of the Administrative Law Judge to evaluate the credibility of witnesses. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency. Every finding of fact not specifically rejected as required by Chapter 150B shall be deemed accepted for purposes of judicial review. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency establishing that the new finding of fact is supported by a preponderance of the evidence in the official record. </p><p>The agency that will make the final decision in this case is the North Carolina Department of the Secretary of State. The agency is required by N.C.G.S. 150B-36 to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings.</p><p>IT IS SO ORDERED.</p><p>This the 19th day of August, 2005.</p><p>______Augustus B. Elkins II Administrative Law J aw Judge</p><p>5</p>