References are to General
Statutes of North Carolina, 2011, as amended.
(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.
(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. Upon
request, an agency shall also issue a declaratory ruling to resolve a conflict
or inconsistency within the agency regarding an interpretation of the law or a
rule adopted by the agency. The agency shall prescribe in its rules the
procedure for requesting a declaratory ruling and 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.
(a1) An agency shall respond to a request
for a declaratory ruling as follows:
(1) Within 30 days of receipt of the request for a
declaratory ruling, the agency shall make a written decision to grant or deny
the request. If the agency fails to make a written decision to grant or deny
the request within 30 days, the failure shall be deemed a decision to deny the
request.
(2) If the agency denies the request, the decision
is immediately subject to judicial review in accordance with Article 4 of this
Chapter.
(3) If the agency grants the request, the agency
shall issue a written ruling on the merits within 45 days of the decision to
grant the request. A declaratory ruling is subject to judicial review in
accordance with Article 4 of this Chapter.
(4) If the agency fails to issue a declaratory
ruling within 45 days, the failure shall be deemed a denial on the merits, and
the person aggrieved may seek judicial review pursuant to Article 4 of this
Chapter. Upon review of an agency's failure to issue a declaratory ruling, the
court shall not consider any basis for the denial that was not presented in
writing to the person aggrieved.
§ 150B-19. Restrictions on what can be adopted as a rule.
(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.
§
150B‑19.1.
Requirements for agencies
in the rule-making process.
(a) In developing and drafting rules for adoption
in accordance with this Article, agencies shall adhere to the following
principles:
(1) An agency may adopt only rules that are
expressly authorized by federal or State law and that are necessary to serve
the public interest.
(2) An agency shall seek to reduce the burden upon
those persons or entities who must comply with the rule.
(3) Rules shall be written in a clear and
unambiguous manner and must be reasonably necessary to implement or interpret
federal or State law.
(4) An agency shall consider the cumulative effect
of all rules adopted by the agency related to the specific purpose for which
the rule is proposed. The agency shall not adopt a rule that is unnecessary or
redundant.
(5) When appropriate, rules shall be based on
sound, reasonably available scientific, technical, economic, and other relevant
information. Agencies shall include a reference to this information in the
notice of text required by G.S. 150B‑21.2(c).
(6) Rules shall be designed to achieve the
regulatory objective in a cost‑effective and timely manner.
(b) Each agency subject to this Article shall
conduct an annual review of its rules to identify existing rules that are
unnecessary, unduly burdensome, or inconsistent with the principles set forth
in subsection (a) of this section. The agency shall repeal any rule identified
by this review.
(c) Each agency subject to this Article shall post
on its Web site when the agency submits the notice of text for publication in
accordance with G.S. 150B‑21.2 all of the following:
(1) The text of a proposed rule.
(2) An explanation of the proposed rule and the
reason for the proposed rule.
(3) The federal certification required by
subsection (g) of this section.
(4) Instructions on how and where to submit oral
or written comments on the proposed rule.
(5) Any fiscal note that has been prepared for the
proposed rule.
The agency shall maintain the information in
a searchable database and shall periodically update this online information to
reflect changes in the proposed rule or the fiscal note prior to adoption.
(d) Each agency shall determine whether its
policies and programs overlap with the policies and programs of another agency.
In the event two or more agencies' policies and programs overlap, the agencies
shall coordinate the rules adopted by each agency to avoid unnecessary, unduly
burdensome, or inconsistent rules.
(e) Each agency shall quantify the costs and
benefits to all parties of a proposed rule to the greatest extent possible.
Prior to submission of a proposed rule for publication in accordance with
G.S. 150B‑21.2, the agency shall review the details of any fiscal
note prepared in connection with the proposed rule with the rule‑making
body, and the rule‑making body must approve the fiscal note before
submission.
(f) If the agency determines that a proposed rule
will have a substantial economic impact as defined in G.S. 150B‑21.4(b1), the agency shall consider at least two
alternatives to the proposed rule. The alternatives may have been identified by
the agency or by members of the public.
(g) Whenever an agency proposes a rule that is
purported to implement a federal law, or required by or necessary for
compliance with federal law, or on which the receipt of federal funds is
conditioned, the agency shall:
(1) Prepare a certification identifying the
federal law requiring adoption of the proposed rule. The certification shall
contain a statement setting forth the reasons why the proposed rule is required
by federal law. If all or part of the proposed rule is not required by federal
law or exceeds the requirements of federal law, then the certification shall
state the reasons for that opinion.
(2) Post the certification on the agency Web site
in accordance with subsection (c) of this section.
(3) Maintain a copy of the federal law and provide
to the Office of State Budget and Management the citation to the federal law
requiring or pertaining to the proposed rule.
§ 150B‑19.2. Review of existing rules.
(a) The Rules Modification and Improvement
Program. – The Rules Modification and Improvement Program is established to
conduct an annual review of existing rules. The Office of State Budget and
Management (OSBM) shall coordinate and oversee the Rules Modification and
Improvement Program. The OSBM shall invite comments from the public on whether
any existing rules, implementation processes, or associated requirements are
unnecessary, unduly burdensome, or inconsistent with the principles set forth
in G.S. 150B‑19.1. Comments must identify a specific rule or
regulatory program and may include recommendations regarding modifying,
expanding, or repealing existing rules or changing the rule review and
publication process. The OSBM shall direct each agency to conduct an internal
review of its rules as required by G.S. 150B‑19.1(b)
and to forward a report of its review to the OSBM. The OSBM shall assemble and
evaluate the public comments and forward any comments it deems to have merit to
the appropriate agency for further review. Agencies shall review the public
comments and prepare a report on whether any of the recommendations contained
in the comments have potential merit and justify further action. Agencies shall
submit a report of their findings to the OSBM by January 31 of each year. The
OSBM shall publish an annual report by April 30 of each year summarizing all
public comments and resulting actions taken or planned.
(b) The OSBM shall establish a single Web portal
dedicated to receiving public comments and tracking agency progress on
reforming rules.
(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) Each agency must designate one or more rule‑making
coordinators to oversee the agency's rule‑making functions. The coordinator shall serve as the liaison
between the agency, other agencies, units of local government, and the public
in the rule‑making process. The
coordinator shall report directly to the agency head.
(b) The rule‑making coordinator shall be
responsible for the following:
(1) Preparing notices of public hearings.
(2) Coordinating access to the agency's rules.
(3) Screening all proposed rule actions prior to
publication in the North Carolina Register to assure that an accurate fiscal
note has been completed as required by G.S. 150B-21.4(b).
(4) Consulting with the North Carolina Association
of County Commissioners and the North Carolina League of Municipalities to
determine which local governments would be affected by any proposed rule
action.
(5) Providing the North Carolina Association of
County Commissioners and the North Carolina League of Municipalities with
copies of all fiscal notes required by G.S. 150B-21.4(b), prior to publication
in the North Carolina Register of the proposed text of a permanent rule change.
(6) Coordinating the submission of proposed rules
to the Governor as provided by G.S. 150B-21.26.
(c) At the earliest point in the rule‑making
process and in consultation with the North Carolina Association of County Commissioners,
the North Carolina League of Municipalities, and with samples of county
managers or city managers, as appropriate, the rule‑making coordinator
shall lead the agency's efforts in the development and drafting of any rules or
rule changes that could:
(1) Require any unit of local government,
including a county, city, school administrative unit, or other local entity
funded by or through a unit of local government to carry out additional or
modified responsibilities;
(2) Increase the cost of providing or delivering a
public service funded in whole or in part by any unit of local government; or
(3) Otherwise affect the expenditures or revenues
of a unit of local government.
(d) The rule‑making coordinator shall send
to the Office of State Budget and Management for compilation a copy of each
final fiscal note prepared pursuant to G.S. 150B-21.4(b).
(e) The rule‑making coordinator shall
compile a schedule of the administrative rules and amendments expected to be
proposed during the next fiscal year.
The coordinator shall provide a copy of the schedule to Office of State
Budget and Management in a manner proposed by that Office.
(f) Whenever an agency proposes a rule that is
purported to implement a federal law, or required by or necessary for
compliance with federal law, or on which the receipt of federal funds is
conditioned, the rule‑making coordinator shall:
(1) Attach
to the proposed rule a certificate prepared by the rule‑making
coordinator identifying the federal law requiring adoption of the proposed
rule. The certification shall contain a statement setting forth the reasons for
why the proposed rule is required by law. If all or part of the proposed rule
is not required by federal law or exceeds the requirements of federal law, then
the certification shall state the reasons for that opinion. No comment or
opinion shall be included in the certification with regard to the merits of the
proposed rule; and
(2) The
rule‑making coordinator shall maintain a copy of the federal law and
shall provide to the Office of State Budget and Management for compilation the
citation to the federal law requiring or pertaining to the proposed rule.
[(f) Repealed by Session Law
2011-398, s. 3 effective October 1, 2011.]
(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 by one of the methods
for service of process under G.S. 1A‑1, Rule 4(j) or Rule 4(j3). If
given by registered or certified mail, by signature confirmation as provided by
the United States Postal Service, or by designated delivery service authorized
pursuant to 26 U.S.C. § 7502(f)(2) with delivery
receipt, notice shall be deemed to have been given on the delivery date
appearing on the return receipt, copy of proof of delivery provided by the
United States Postal Service, or delivery receipt. If notice cannot be given by
one of the methods for service of process under G.S. 1A‑1, Rule 4(j)
or Rule 4(j3), 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 by one of the
methods for service of process under G.S. 1A‑1, Rule 5(b). If
service is by registered, certified, or first‑class mail, by signature
confirmation as provided by the United States Postal Service, or by designated
delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery
receipt, the copy shall be addressed to the party at the latest address given
by the party to the agency. Service by one of the additional methods provided
in G.S. 1A‑1, Rule 5(b), is effective as provided therein and shall
be accompanied by a certificate of service as provided in G.S. 1A‑1,
Rule 5(b1). G.S. 1A‑1, Rule 6(e), applies if service is by first‑class
mail. A copy shall be furnished to the party's 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-43. Right to judicial
review.
§ 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.
§ 150B-51. Scope and
standard of review.
(b) The court reviewing a final decision may
affirm the decision or remand the case for further proceedings. It may also
reverse or modify the decision if the substantial rights of the petitioners may
have been prejudiced because the findings, inferences, conclusions, or
decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency or administrative law judge;
(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, the court shall determine whether the petitioner is entitled to the relief
sought in the petition based upon its review of the final decision and the
official record. With regard to asserted errors pursuant to subdivisions (1)
through (4) of subsection (b) of this section, the court shall conduct its
review of the final decision using the de novo standard of review. With regard
to asserted errors pursuant to subdivisions (5) and (6) of subsection (b) of
this section, the court shall conduct its review of the final decision using
the whole record standard of review.
(d) In reviewing a final decision allowing
judgment on the pleadings or summary judgment, 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.
§ 150B-52. Appeal; stay of
court's decision.
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Statutes: NC General Statutes