References are to General Statutes of
(a) Purpose.
– This Chapter establishes a uniform system of administrative rule making
and adjudicatory procedures for agencies. The procedures ensure that the
functions of rule making, investigation, advocacy, and adjudication are not all
performed by the same person in the administrative process.
(b) Rights. – This Chapter confers
procedural rights.
(1) "Administrative
law judge" means a person appointed under G.S. 7A‑752, 7A‑753,
or 7A‑757.
(1a) "Agency"
means an agency or an officer in the executive branch of the government of this
State and includes the Council of State, the Governor's Office, a board, a commission,
a department, a division, a council, and any other unit of government in the
executive branch. A local unit of government is not an agency.
(1b) "Adopt"
means to take final action to create, amend, or repeal a rule.
(1c) "Codifier
of Rules" means the Chief Administrative Law Judge of the Office of
Administrative Hearings or a designated representative of the Chief
Administrative Law Judge.
(1d) "Commission"
means the Rules Review Commission.
(2) "Contested
case" means an administrative proceeding pursuant to this Chapter to
resolve a dispute between an agency and another person that involves the
person's rights, duties, or privileges, including licensing or the levy of a
monetary penalty. "Contested case" does not include rulemaking, declaratory
rulings, or the award or denial of a scholarship, a grant, or a loan.
(2b) "Hearing
officer" means a person or group of persons designated by an agency that
is subject to Article 3A of this Chapter to preside in a contested case hearing
conducted under that Article.
(3) "License"
means any certificate, permit or other evidence, by whatever name called, of a
right or privilege to engage in any activity, except licenses issued under
Chapter 20 and Subchapter I of Chapter 105 of the General Statutes and occupational
licenses.
(4) "Licensing"
means any administrative action issuing, failing to issue, suspending, or
revoking a license or occupational license. "Licensing" does not
include controversies over whether an examination was fair or whether the
applicant passed the examination.
(4a) "Occupational
license" means any certificate, permit, or other evidence, by whatever
name called, of a right or privilege to engage in a profession, occupation, or
field of endeavor that is issued by an occupational licensing agency.
(4b) "Occupational
licensing agency" means any board, commission, committee or other agency
of the State of North Carolina which is established for the primary purpose of
regulating the entry of persons into, and/or the conduct of persons within a particular
profession, occupation or field of endeavor, and which is authorized to issue
and revoke licenses. "Occupational licensing agency" does not include
State agencies or departments which may as only a part of their regular
function issue permits or licenses.
(5) "Party"
means any person or agency named or admitted as a party or properly seeking as
of right to be admitted as a party and includes the agency as appropriate. This
subdivision does not permit an agency that makes a final decision, or an officer
or employee of the agency, to petition for initial judicial review of that
decision.
(6) "Person
aggrieved" means any person or group of persons of common interest
directly or indirectly affected substantially in his or its person, property,
or employment by an administrative decision.
(7) "Person"
means any natural person, partnership, corporation, body politic and any
unincorporated association, organization, or society which may sue or be sued
under a common name.
(8) "Residence"
means domicile or principal place of business.
(8a) "Rule"
means any agency regulation, standard, or statement of general applicability
that implements or interprets an enactment of the General Assembly or Congress
or a regulation adopted by a federal agency or that describes the procedure or
practice requirements of an agency. The term includes the establishment of a
fee and the amendment or repeal of a prior rule. The term does not include the
following:
a. Statements
concerning only the internal management of an agency or group of agencies
within the same principal office or department enumerated in G.S. 143A‑11
or 143B‑6, including policies and procedures manuals, if the statement
does not directly or substantially affect the procedural or substantive rights
or duties of a person not employed by the agency or group of agencies.
b. Budgets and
budget policies and procedures issued by the Director of the Budget, by the
head of a department, as defined by G.S. 143A‑2 or G.S. 143B‑3, by
an occupational licensing board, as defined by G.S. 93B‑1, or by the
State Board of Elections.
c. Nonbinding
interpretative statements within the delegated authority of an agency that
merely define, interpret, or explain the meaning of a statute or rule.
d. A form, the
contents or substantive requirements of which are prescribed by rule or
statute.
e. Statements
of agency policy made in the context of another proceeding, including:
1. Declaratory
rulings under G.S. 150B‑4.
2. Orders of
establishing or fixing rates or tariffs.
f. Requirements,
communicated to the public by the use of signs or symbols, concerning the use
of public roads, bridges, ferries, buildings, or facilities.
g. Statements
that set forth criteria or guidelines to be used by the staff of an agency in
performing audits, investigations, or inspections; in settling financial
disputes or negotiating financial arrangements; or in the defense, prosecution,
or settlement of cases.
h. Scientific,
architectural, or engineering standards, forms, or procedures, including design
criteria and construction standards used to construct or maintain highways,
bridges, or ferries.
i. Job
classification standards, job qualifications, and salaries established for
positions under the jurisdiction of the State Personnel Commission.
j. Establishment
of the interest rate that applies to tax assessments under G.S. 105‑241.21
and the variable component of the excise tax on motor fuel under G.S. 105‑449.80.
k. The State
Medical Facilities Plan, if the Plan has been prepared with public notice and
hearing as provided in G.S. 131E-176(25), reviewed by the Commission for
compliance with G.S. 131E-176(25), and approved by the Governor.
(8b) "Substantial
evidence" means relevant evidence a reasonable mind might accept as
adequate to support a conclusion.
§ 150B-3. Special
provisions on licensing.
(a) When
an applicant or a licensee makes a timely and sufficient application for
issuance or renewal of a license or occupational license, including the payment
of any required license fee, the existing license or occupational license does
not expire until a decision on the application is finally made by the agency,
and if the application is denied or the terms of the new license or
occupational license are limited, until the last day for applying for judicial
review of the agency order. This subsection does not affect agency action
summarily suspending a license or occupational license under subsections (b)
and (c) of this section.
(b) Before
the commencement of proceedings for the suspension, revocation, annulment, withdrawal,
recall, cancellation, or amendment of any license other than an occupational
license, the agency shall give notice to the licensee, pursuant to the
provisions of G.S. 150B‑23. Before the commencement of such proceedings
involving an occupational license, the agency shall give notice pursuant to the
provisions of G.S. 150B‑38. In either case, the licensee shall be given
an opportunity to show compliance with all lawful requirements for retention of
the license or occupational license.
(c) If
the agency finds that the public health, safety, or welfare requires emergency
action and incorporates this finding in its order, summary suspension of a
license or occupational license may be ordered effective on the date specified
in the order or on service of the certified copy of the order at the last known
address of the licensee, whichever is later, and effective during the
proceedings. The proceedings shall be promptly commenced and determined.
Nothing in this subsection shall be
construed as amending or repealing any special statutes, in effect prior to
February 1, 1976, which provide for the summary suspension of a license.
(d) This
section does not apply to the following:
(1) Revocations
of occupational licenses based solely on a court order of child support
delinquency or a Department of Health and Human Services determination of child
support delinquency issued pursuant to G.S. 110‑142, 110‑142.1, or
110‑142.2.
(2) Refusal to
renew an occupational license pursuant to G.S. 87‑10.1, 87‑22.2, 87‑44.2,
or 89C‑18.1, based solely on a Department of Revenue determination that
the licensee owes a delinquent income tax debt.
§ 150B-4. Declaratory
rulings.
(a) On request
of a person aggrieved, an agency shall issue a declaratory ruling as to the
validity of a rule or as to the applicability to a given state of facts of a
statute administered by the agency or of a rule or order of the agency, except
when the agency for good cause finds issuance of a ruling undesirable. The
agency shall prescribe in its rules the circumstances in which rulings shall or
shall not be issued. A declaratory ruling is binding on the agency and the
person requesting it unless it is altered or set aside by the court. An agency
may not retroactively change a declaratory ruling, but nothing in this section
prevents an agency from prospectively changing a declaratory ruling. A
declaratory ruling is subject to judicial review in the same manner as an order
in a contested case. Failure of the agency to issue a declaratory ruling on the
merits within 60 days of the request for such ruling shall constitute a denial
of the request as well as a denial of the merits of the request and shall be
subject to judicial review.
(1) Implements
or interprets a law unless that law or another law specifically authorizes the
agency to do so.
(2) Enlarges the
scope of a profession, occupation, or field of endeavor for which an
occupational license is required.
(3) Imposes
criminal liability or a civil penalty for an act or omission, including the
violation of a rule, unless a law specifically authorizes the agency to do so
or a law declares that violation of the rule is a criminal offense or is
grounds for a civil penalty.
(4) Repeats the
content of a law, a rule, or a federal regulation. A brief statement that
informs the public of a requirement imposed by law does not violate this
subdivision and satisfies the "reasonably necessary" standard of
review set in G.S. 150B‑21.9(a)(3).
(5) Establishes
a fee or other charge for providing a service in fulfillment of a duty unless a
law specifically authorizes the agency to do so or the fee or other charge is
for one of the following:
a. A service to
a State, federal, or local governmental unit.
b. A copy of
part or all of a State publication or other document, the cost of mailing a
document, or both.
c. A transcript
of a public hearing.
d. A
conference, workshop, or course.
e. Data
processing services.
(6) Allows the
agency to waive or modify a requirement set in a rule unless a rule establishes
specific guidelines the agency must follow in determining whether to waive or
modify the requirement.
(a) Petition.
– A person may petition an agency to adopt a rule by submitting to the
agency a written rule‑making petition requesting the adoption. A person
may submit written comments with a rule‑making petition. If a rule‑making
petition requests the agency to create or amend a rule, the person must submit
the proposed text of the requested rule change and a statement of the effect of
the requested rule change. Each agency must establish by rule the procedure for
submitting a rule‑making petition to it and the procedure the agency
follows in considering a rule‑making petition.
(b) Time.
– An agency must grant or deny a rule‑making petition submitted to
it within 30 days after the date the rule‑making petition is submitted,
unless the agency is a board or commission. If the agency is a board or
commission, it must grant or deny a rule‑making petition within 120 days
after the date the rule‑making petition is submitted.
(c) Action.
– If an agency denies a rule‑making petition, it must send the
person who submitted the petition a written statement of the reasons for
denying the petition. If an agency grants a rule‑making petition, it must
inform the person who submitted the rule‑making petition of its decision
and must initiate rule‑making proceedings. When an agency grants a rule‑making
petition, the notice of rule‑making proceedings it publishes in the North
Carolina Register may state that the agency is initiating rule‑making
proceedings as the result of a rule‑making petition and state the name of
the person who submitted the rule‑making petition. If the rule‑making
petition requested the creation or amendment of a rule, the notice of text the
agency publishes after the notice of rule‑making proceedings may set out
the text of the requested rule change submitted with the rule‑making
petition and state whether the agency endorses the proposed text.
(d) Review.
– Denial of a rule‑making petition is a final agency decision and
is subject to judicial review under Article 4 of this Chapter. Failure of an
agency to grant or deny a rule‑making petition within the time limits set
in subsection (b) is a denial of the rule‑making petition.
(a) Petition.
– A person may petition an agency to adopt a rule by submitting to the
agency a written rule‑making petition requesting the adoption. A person
may submit written comments with a rule‑making petition. If a rule‑making
petition requests the agency to create or amend a rule, the person must submit
the proposed text of the requested rule change and a statement of the effect of
the requested rule change. Each agency must establish by rule the procedure for
submitting a rule‑making petition to it and the procedure the agency
follows in considering a rule‑making petition.
(b) Time.
– An agency must grant or deny a rule‑making petition submitted to
it within 30 days after the date the rule‑making petition is submitted,
unless the agency is a board or commission. If the agency is a board or
commission, it must grant or deny a rule‑making petition within 120 days
after the date the rule‑making petition is submitted.
(c) Action.
– If an agency denies a rule‑making petition, it must send the
person who submitted the petition a written statement of the reasons for
denying the petition. If an agency grants a rule‑making petition, it must
inform the person who submitted the rule‑making petition of its decision
and must initiate rule‑making proceedings. When an agency grants a rule‑making
petition, the notice of rule‑making proceedings it publishes in the North
Carolina Register may state that the agency is initiating rule‑making
proceedings as the result of a rule‑making petition and state the name of
the person who submitted the rule‑making petition. If the rule‑making
petition requested the creation or amendment of a rule, the notice of text the
agency publishes after the notice of rule‑making proceedings may set out
the text of the requested rule change submitted with the rule‑making
petition and state whether the agency endorses the proposed text.
(d) Review.
– Denial of a rule‑making petition is a final agency decision and
is subject to judicial review under Article 4 of this Chapter. Failure of an
agency to grant or deny a rule‑making petition within the time limits set
in subsection (b) is a denial of the rule‑making petition.
(a) The
provisions of this Article shall apply to:
(1) Occupational
licensing agencies.
(b) Prior
to any agency action in a contested case, the agency shall give the parties in the
case an opportunity for a hearing without undue delay and notice not less than
15 days before the hearing. Notice to the parties shall include:
(1) A statement
of the date, hour, place, and nature of the hearing;
(2) A reference
to the particular sections of the statutes and rules involved; and
(3) A short and
plain statement of the facts alleged.
(c) Notice
shall be given personally or by certified mail. If given by certified mail,
notice shall be deemed to have been given on the delivery date appearing on the
return receipt. If notice cannot be given personally or by certified mail, then
notice shall be given in the manner provided in G.S. 1A‑1, Rule 4(j1).
(d) A
party who has been served with a notice of hearing may file a written response
with the agency. If a written response is filed, a copy of the response must be
mailed to all other parties not less than 10 days before the date set for the
hearing.
(e) All
hearings conducted under this Article shall be open to the public. A hearing
conducted by the agency shall be held in the county where the agency maintains
its principal office. A hearing conducted for the agency by an administrative
law judge requested under G.S. 150B‑40 shall be held in a county in this
State where any person whose property or rights are the subject matter of the
hearing resides. If a different venue would promote the ends of justice or
better serve the convenience of witnesses, the agency or the administrative law
judge may designate another county. A person whose property or rights are the
subject matter of the hearing waives his objection to venue if he proceeds in
the hearing.
(f) Any
person may petition to become a party by filing with the agency or hearing
officer a motion to intervene in the manner provided by G.S. 1A‑1, Rule
24. In addition, any person interested in a contested case under this Article
may intervene and participate to the extent deemed appropriate by the agency
hearing officer.
(g) When
contested cases involving a common question of law or fact or multiple proceedings
involving the same or related parties are pending before an agency, the agency
may order a joint hearing of any matters at issue in the cases, order the cases
consolidated, or make other orders to reduce costs or delay in the proceedings.
(h) Every agency shall adopt rules governing
the conduct of hearings that are consistent with the provisions of this
Article.
(a) A deposition may be used in lieu of other
evidence when taken in compliance with the Rules of Civil Procedure, G.S. 1A‑1.
Parties in a contested case may engage in discovery pursuant to the provisions
of the Rules of Civil Procedure, G.S. 1A‑1.
(b) Upon
a request for an identifiable agency record involving a material fact in a
contested case, the agency shall promptly provide the record to a party, unless
the record relates solely to the agency's internal procedures or is exempt from
disclosure by law.
(c) In preparation for, or in the conduct
of, a contested case subpoenas may be issued and served in accordance with G.S.
1A‑1, Rule 45. Upon a motion, the agency may quash a subpoena if, upon a
hearing, the agency finds that the evidence, the production of which is
required, does not relate to a matter in issue, the subpoena does not describe
with sufficient particularity the evidence the production of which is required,
or for any other reason sufficient in law the subpoena may be quashed. Witness
fees shall be paid by the party requesting the subpoena to subpoenaed witnesses
in accordance with G.S. 7A‑314. However, State officials or employees who
are subpoenaed shall not be entitled to any witness fees, but they shall
receive their normal salary and they shall not be required to take any annual
leave for the witness days. Travel expenses of State officials or employees who
are subpoenaed shall be reimbursed as provided in G.S. 138‑6.
(a) Hearings shall be conducted in a fair and
impartial manner. At the hearing, the agency and the parties shall be given an
opportunity to present evidence on issues of fact, examine and cross‑
examine witnesses, including the author of a document prepared by, on behalf of
or for the use of the agency and offered into evidence, submit rebuttal
evidence, and present arguments on issues of law or policy.
If a party fails to appear in a
contested case after he has been given proper notice, the agency may continue
the hearing or proceed with the hearing and make its decision in the absence of
the party.
(b) Except
as provided under subsection (e) of this section, hearings under this Article
shall be conducted by a majority of the agency. An agency shall designate one
or more of its members to preside at the hearing. If a party files in good
faith a timely and sufficient affidavit of the personal bias or other reason
for disqualification of any member of the agency, the agency shall determine
the matter as a part of the record in the case, and its determination shall be
subject to judicial review at the conclusion of the proceeding. If a presiding
officer is disqualified or it is impracticable for him to continue the hearing,
another presiding officer shall be assigned to continue with the case, except
that if assignment of a new presiding officer will cause substantial prejudice
to any party, a new hearing shall be held or the case dismissed without
prejudice.
(c) The
presiding officer may:
(1) Administer
oaths and affirmations;
(2) Sign and
issue subpoenas in the name of the agency, requiring attendance and giving of
testimony by witnesses and the production of books, papers, and other
documentary evidence;
(3) Provide for
the taking of testimony by deposition;
(4) Regulate the
course of the hearings, set the time and place for continued hearings, and fix
the time for filing of briefs and other documents;
(5) Direct the
parties to appear and confer to consider simplification of the issues by
consent of the parties; and
(6) Apply to any
judge of the superior court resident in the district or presiding at a term of
court in the county where a hearing is pending for an order to show cause why
any person should not be held in contempt of the agency and its processes, and
the court shall have the power to impose punishment as for contempt for acts
which would constitute direct or indirect contempt if the acts occurred in an
action pending in superior court.
(d) Unless
required for disposition of an ex parte matter authorized by law, a member
of an agency assigned to make a decision or to make findings of fact and
conclusions of law in a contested case under this Article shall not
communicate, directly or indirectly, in connection with any issue of fact or
question of law, with any person or party or his representative, except on
notice and opportunity for all parties to participate. This prohibition begins
at the time of the notice of hearing. An agency member may communicate with
other members of the agency and may have the aid and advice of the agency staff
other than the staff which has been or is engaged in investigating or
prosecuting functions in connection with the case under consideration or a
factually‑related case. This section does not apply to an agency employee
or party representative with professional training in accounting, actuarial
science, economics or financial analysis insofar as the case involves financial
practices or conditions.
(e) When
a majority of an agency is unable or elects not to hear a contested case, the
agency shall apply to the Director of the Office of Administrative Hearings for
the designation of an administrative law judge to preside at the hearing of a
contested case under this Article. Upon receipt of the application, the
Director shall, without undue delay, assign an administrative law judge to hear
the case.
The provisions of this Article,
rather than the provisions of Article 3, shall govern a contested case in which
the agency requests an administrative law judge from the Office of
Administrative Hearings.
The administrative law judge
assigned to hear a contested case under this Article shall sit in place of the
agency and shall have the authority of the presiding officer in a contested
case under this Article. The administrative law judge shall make a proposal for
decision, which shall contain proposed findings of fact and proposed
conclusions of law.
An administrative law judge shall
stay any contested case under this Article on motion of an agency which is a
party to the contested case, if the agency shows by supporting affidavits that
it is engaged in other litigation or administrative proceedings, by whatever
name called, with or before a federal agency, and this other litigation or
administrative proceedings will determine the position, in whole or in part, of
the agency in the contested case. At the conclusion of the other litigation or
administrative proceedings, the contested case shall proceed and be determined
as expeditiously as possible.
The agency
may make its final decision only after the administrative law judge's proposal
for decision is served on the parties, and an opportunity is given to each
party to file exceptions and proposed findings of fact and to present oral and
written arguments to the agency.
(a) In
all contested cases, irrelevant, immaterial, and unduly repetitious evidence
shall be excluded. Except as otherwise provided, the rules of evidence as
applied in the trial division of the General Court of Justice shall be followed;
but, when evidence is not reasonably available under such rules to show
relevant facts, they may be shown by the most reliable and substantial evidence
available. It shall not be necessary for a party or his attorney to object to
evidence at the hearing in order to preserve the right to object to its
consideration by the agency in reaching its decision, or by the court of
judicial review.
(b) Evidence
in a contested case, including records and documents shall be offered and made
a part of the record. Other factual information or evidence shall not be
considered in determination of the case, except as permitted under G.S. 150B‑30.
Documentary evidence may be received in the form of a copy or excerpt or may be
incorporated by reference, if the materials so incorporated are available for
examination by the parties. Upon timely request, a party shall be given an
opportunity to compare the copy with the original if available.
(c) The
parties in a contested case under this Article by a stipulation in writing
filed with the agency may agree upon any fact involved in the controversy,
which stipulation shall be used as evidence at the hearing and be binding on
the parties thereto. Parties should agree upon facts when practicable. Except
as otherwise provided by law, disposition may be made of a contested case by
stipulation, agreed settlement, consent order, waiver, default, or other method
agreed upon by the parties.
(d) Official notice may be taken of all
facts of which judicial notice may be taken and of other facts within the
specialized knowledge of the agency. The noticed fact and its source shall be
stated and made known to affected parties at the earliest practicable time, and
any party shall on timely request be afforded an opportunity to dispute the noticed
fact through submission of evidence and argument. An agency may use its
experience, technical competence, and specialized knowledge in the evaluation
of evidence presented to it.
(a) After compliance with the provisions of G.S.
150B‑ 40(e), if applicable, and review of the official record, as defined
in subsection (b) of this section, an agency shall make a written final
decision or order in a contested case. The decision or order shall include
findings of fact and conclusions of law. Findings of fact shall be based
exclusively on the evidence and on matters officially noticed. Findings of
fact, if set forth in statutory language, shall be accompanied by a concise and
explicit statement of the underlying facts supporting them. A decision or order
shall not be made except upon consideration of the record as a whole or such
portion thereof as may be cited by any party to the proceeding and shall be
supported by substantial evidence admissible under G.S. 150B‑41. A copy
of the decision or order shall be served upon each party personally or by
certified mail addressed to the party at the latest address given by the party
to the agency and a copy shall be furnished to his attorney of record.
(b) An
agency shall prepare an official record of a hearing that shall include:
(1) Notices,
pleadings, motions, and intermediate rulings;
(2) Questions
and offers of proof, objections, and rulings thereon;
(3) Evidence
presented;
(4) Matters
officially noticed, except matters so obvious that a statement of them would
serve no useful purpose;
(5) Proposed
findings and exceptions; and
(6) Any
decision, opinion, order, or report by the officer presiding at the hearing and
by the agency.
(c) Proceedings
at which oral evidence is presented shall be recorded, but need not be
transcribed unless requested by a party. Each party shall bear the cost of the
transcript or part thereof or copy of said transcript or part thereof which
said party requests.
§ 150B-45. Procedure for
seeking review; waiver
(a) Procedure.
– To obtain judicial review of a final decision under this Article, the person
seeking review must file a petition within 30 days after the person is served
with a written copy of the decision. The petition must be filed as follows:
(1) Contested
tax cases. – A petition for review of a final decision in a contested tax
case arising under G.S. 105‑241.15 must be filed in the
(2) Other
final decisions. – A petition for review of any other final decision
under this Article must be filed in the
(b) Waiver.
– A person who fails to file a petition within the required time waives
the right to judicial review under this Article. For good cause shown, however,
the superior court may accept an untimely petition.
§ 150B-46. Contents
of petition; copies served on all parties; intervention.
Any person
aggrieved may petition to become a party by filing a motion to intervene as
provided in G.S. 1A‑1, Rule 24.
§
150B-47. Records filed with clerk of superior court; contents of records; costs.
§
150B-48. Stay of decision.
§ 150B-49. New evidence.
§ 150B-50. Review by superior court
without jury.
(a) In reviewing a
final decision in a contested case in which an administrative law judge made a
recommended decision and the State Personnel Commission made an advisory decision
in accordance with G.S. 126‑37(b1), the court shall make two initial
determinations. First, the court shall determine whether the applicable
appointing authority heard new evidence after receiving the recommended
decision. If the court determines that the applicable appointing authority
heard new evidence, the court shall reverse the decision or remand the case to
the applicable appointing authority to enter a decision in accordance with the
evidence in the official record. Second, if the applicable appointing authority
did not adopt the recommended decision, the court shall determine whether the
applicable appointing authority's decision states the specific reasons why the
applicable appointing authority did not adopt the recommended decision. If the
court determines that the applicable appointing authority did not state
specific reasons why it did not adopt a recommended decision, the court shall
reverse the decision or remand the case to the applicable appointing authority
to enter the specific reasons.
(a1) In
reviewing a final decision in a contested case in which an administrative law
judge made a decision, in accordance with G.S. 150B‑34(a), and the agency
adopted the administrative law judge's decision, the court shall determine
whether the agency heard new evidence after receiving the decision. If the
court determines that the agency heard new evidence, the court shall reverse
the decision or remand the case to the agency to enter a decision in accordance
with the evidence in the official record. The court shall also determine
whether the agency specifically rejected findings of fact contained in the
administrative law judge's decision in the manner provided by G.S. 150B‑36(b1)
and made findings of fact in accordance with G.S. 150B‑36(b2). If the
court determines that the agency failed to follow the procedure set forth in
G.S. 150B‑36, the court may take appropriate action under subsection (b)
of this section.
(b) Except
as provided in subsection (c) of this section, in reviewing a final decision,
the court may affirm the decision of the agency or remand the case to the
agency or to the administrative law judge for further proceedings. It may also
reverse or modify the agency's decision, or adopt the administrative law
judge's decision if the substantial rights of the petitioners may have been
prejudiced because the agency's findings, inferences, conclusions, or decisions
are:
(1) In violation
of constitutional provisions;
(2) In excess of
the statutory authority or jurisdiction of the agency;
(3) Made upon
unlawful procedure;
(4) Affected by
other error of law;
(5) Unsupported
by substantial evidence admissible under G.S. 150B‑29(a), 150B‑30,
or 150B‑31 in view of the entire record as submitted; or
(6) Arbitrary,
capricious, or an abuse of discretion.
(c) In
reviewing a final decision in a contested case in which an administrative law
judge made a decision, in accordance with G.S. 150B‑34(a), and the agency
does not adopt the administrative law judge's decision, the court shall review
the official record, de novo, and shall make findings of fact and conclusions
of law. In reviewing the case, the court shall not give deference to any prior
decision made in the case and shall not be bound by the findings of fact or the
conclusions of law contained in the agency's final decision. The court shall
determine whether the petitioner is entitled to the relief sought in the
petition, based upon its review of the official record. The court reviewing a
final decision under this subsection may adopt the administrative law judge's
decision; may adopt, reverse, or modify the agency's decision; may remand the
case to the agency for further explanations under G.S. 150B‑36(b1), 150B‑36(b2),
or 150B‑36(b3), or reverse or modify the final decision for the agency's
failure to provide the explanations; and may take any other action allowed by
law.
(d) In reviewing a
final agency decision allowing judgment on the pleadings or summary judgment,
or in reviewing an agency decision that does not adopt an administrative law
judge's decision allowing judgment on the pleadings or summary judgment
pursuant to G.S. 150B‑36(d), the court may enter any order allowed by
G.S. 1A‑1, Rule 12(c) or Rule 56. If the order of the court does not
fully adjudicate the case, the court shall remand the case to the
administrative law judge for such further proceedings as are just.
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