, but note staff’s comment

RRC STAFF OPINION
PLEASE NOTE: THIS COMMUNICATION IS EITHER 1) ONLY THE RECOMMENDATION OF AN RRC
STAFF ATTORNEY AS TO ACTION THAT THE ATTORNEY BELIEVES THE COMMISSION SHOULD TAKE ON
THE CITED RULE AT ITS NEXT MEETING, OR 2) AN OPINION OF THAT ATTORNEY AS TO SOME MATTER
CONCERNING THAT RULE. THE AGENCY AND MEMBERS OF THE PUBLIC ARE INVITED TO SUBMIT THEIR
OWN COMMENTS AND RECOMMENDATIONS (ACCORDING TO RRC RULES) TO THE COMMISSION.
AGENCY: N.C. ALCOHOLIC BEVERAGE CONTROL COMMISSION RULE CITATION: 4 NCAC 2R .0103 RECOMMENDED ACTION:
Approve, but note staff’s comment
X Object, based on:
X Unclear or ambiguous
Failure to adopt the rule in accordance with the APA
Extend the period of review
Return the rule to the agency for failure to comply with the Administrative Procedure Act
COMMENT:
There is no authority for the agency to adopt the definition for “aggrieved party” in (a)(3). The General Assembly has already defined “person aggrieved” in the Administrative Procedure Act (APA) and the agency has not cited any authority for adopting a definition that might conflict with the statutory definition. To the extent that there might be any conflict in the definitions, this conflict could arise in the conduct of a contested case hearing.
Even if there were authority to adopt the rule it is unclear which definition, the agency’s or the statutory definition, would apply in the case of a contested case hearing which would be conducted under the APA and the rules of the Office of Administrative Hearings.
Joseph J. DeLuca, Jr. Commission Counsel
RRC STAFF OPINION
X Object, based on:
Unclear or ambiguous
COMMENT:
There is no authority cited to enlarge the restrictions pertaining to familial conflicts of interest, as set in (b) beyond the first degree.
NCGS 104A-1describes the procedure for counting the degrees of kinship:
§ 104A-1. Degrees of kinship; how computed.
In all cases where degrees of kinship are to be computed, the same shall be computed in
accordance with the civil law rule, as follows:
(1) The degrees of lineal kinship of two persons is computed by counting one
degree for each person in the line of ascent or descent, exclusive of the
person from whom the computing begins; and
(2) The degree of collateral kinship of two persons is computed by commencing
with one of the persons and ascending from him to a common ancestor,
descending from that ancestor to the other person, and counting one degree
for each person in the line of ascent and in the line of descent, exclusive of
the person from whom the computation begins, the total to represent the
degree of such kinship. (1951, c. 315; 1953, c. 1077, s. 2.)
Under the procedure set out in (2) for determining the degree of kinship for a cousin, which is a collateral relationship, the common ancestor would be a grandparent which is two steps or degrees. It would then be another two steps or degrees to count down to the cousin, which would make the cousin a fourth degree relation and outside the prohibition contained in paragraph (a) of the statute cited as authority:
§ 18B-201. Conflict of interest.
(a) Financial Interests Restricted. – No person shall be appointed to or employed by the
Commission, a local board, or the ALE Division if that person or a member of that person's
family related to that person by blood or marriage to the first degree has or controls, directly or
indirectly, a financial interest in any commercial alcoholic beverage enterprise, including any
business required to have an ABC permit. The Commission may exempt from this provision any
person, other than a Commission member, when the financial interest in question is so
insignificant or remote that it is unlikely to affect the person's official actions in any way.
Exemptions may be granted only to individuals, not to groups or classes of people, and each
exemption shall be in writing, be available for public inspection, and contain a statement of the
financial interest in question.
(b) Self-dealing. – The provisions of G.S. 14-234 shall apply to the Commission and
local boards.
(c) Dealing for Family Members. – Neither the Commission nor any local board shall
contract or otherwise deal in any business matter so that a member's spouse or any person related
to him by blood to a degree of first cousin or closer in any way benefits, directly or indirectly,
from the transaction unless:
(1) The member whose relative benefits from the transaction abstains from
participating in any way, including voting, in the decision;
(2) The minutes of the meeting at which the final decision is reached specifically
note the member whose spouse or relative is benefited and the amount
involved in each transaction;
(3) The next annual audit of the Commission or local board specifically notes the
member and the amount involved in each transaction occurring during the
year covered by the audit; and
(4) If the transaction is by a local board, the Commission is notified at least two
weeks before final board approval of the transaction. (1981, c. 412, s. 2;
1993, c. 415, s. 4.)
Paragraph (c) which prohibits business dealings involving first cousins applies only to ABC Commission or local board members and not to any “employee of the Commission” referred to in (a). It also seems to me, although it is not necessary for the purposes of this opinion that the employment prohibition in NCGS 18B-201 (a) probably applies to the initial hiring decision, rather than to continuing employment. Otherwise you could have a situation where a long-time warehouse worker or counter salesperson should be terminated because a parent or child (or spouse of one of them) obtains a job driving a delivery route for a distributor or even starts operating a restaurant, bar or grocery store with ABC permits.
RRC STAFF OPINION
X Object, based on:
COMMENT:
This rule sets deposit requirements for local boards. The last paragraph contains a provision for altering or waiving these requirements. However the guideline “for good cause shown” is not the “specific guideline” required by the Administrative Procedure Act (APA), NCGS 150B-19(6). It is unclear what constitutes “good cause” in the context of this rule.
The other guideline, “where adequate security for the funds involved is demonstrated” is sufficiently specific.
RRC STAFF OPINION
X Object, based on:
COMMENT:
In (a) line 4 it is unclear what constitutes a “direct or indirect” interest. For example does it constitute such an interest to own stock of whatever amount or control in a spirituous liquor company or company that engages in any of the cited activities? Would it constitute a violation of this rule to work, even limited hours, in such a company while also working for a local board, such as being a waiter or bartender in a restaurant selling such beverages?
For the same reasons as cited in the opinion concerning 2R .0701, staff believes that the employment prohibition in (b) extending to first cousins is not authorized.
Even if the Commission had authority to make an employment prohibition extending as far as first cousins there is no authority cited for the additional provision in (b) extending that prohibition to a person related not to a local board member but to a “member of any other authority that appoints members of the local board.”
§ 14-234. Public officers or employees benefiting from public contracts; exceptions.
(a) (1) No public officer or employee who is involved in making or administering a contract
on behalf of a public agency may derive a direct benefit from the contract except as
provided in this section, or as otherwise allowed by law.
(2) A public officer or employee who will derive a direct benefit from a contract with the
public agency he or she serves, but who is not involved in making or administering
the contract, shall not attempt to influence any other person who is involved in
making or administering the contract.
(3) No public officer or employee may solicit or receive any gift, reward, or promise of
reward in exchange for recommending, influencing, or attempting to influence the
award of a contract by the public agency he or she serves.
(a1) For purposes of this section:
(1) As used in this section, the term "public officer" means an individual who is elected
or appointed to serve or represent a public agency, other than an employee or
independent contractor of a public agency.
(2) A public officer or employee is involved in administering a contract if he or she
oversees the performance of the contract or has authority to make decisions regarding
the contract or to interpret the contract.
(3) A public officer or employee is involved in making a contract if he or she participates
in the development of specifications or terms or in the preparation or award of the
contract. A public officer is also involved in making a contract if the board,
commission, or other body of which he or she is a member takes action on the
contract, whether or not the public officer actually participates in that action, unless
the contract is approved under an exception to this section under which the public
officer is allowed to benefit and is prohibited from voting.
(4) A public officer or employee derives a direct benefit from a contract if the person or
his or her spouse: (i) has more than a ten percent (10%) ownership or other interest in
an entity that is a party to the contract; (ii) derives any income or commission directly
from the contract; or (iii) acquires property under the contract.
(5) A public officer or employee is not involved in making or administering a contract
solely because of the performance of ministerial duties related to the contract.
(b) Subdivision (a)(1) of this section does not apply to any of the following:
(1) Any contract between a public agency and a bank, banking institution, savings and
loan association, or with a public utility regulated under the provisions of Chapter 62
of the General Statutes.
(2) An interest in property conveyed by an officer or employee of a public agency under
a judgment, including a consent judgment, entered by a superior court judge in a
condemnation proceeding initiated by the public agency.
(3) Any employment relationship between a public agency and the spouse of a public
officer of the agency.
(4) Remuneration from a public agency for services, facilities, or supplies furnished
directly to needy individuals by a public officer or employee of the agency under any
program of direct public assistance being rendered under the laws of this State or the
United States to needy persons administered in whole or in part by the agency if: (i)
the programs of public assistance to needy persons are open to general participation
on a nondiscriminatory basis to the practitioners of any given profession, professions
or occupation; (ii) neither the agency nor any of its employees or agents, have control
over who, among licensed or qualified providers, shall be selected by the
beneficiaries of the assistance; (iii) the remuneration for the services, facilities or
supplies are in the same amount as would be paid to any other provider; and (iv)
although the public officer or employee may participate in making determinations of
eligibility of needy persons to receive the assistance, he or she takes no part in
approving his or her own bill or claim for remuneration.
(b1) No public officer who will derive a direct benefit from a contract entered into under
subsection (b) of this section may deliberate or vote on the contract or attempt to influence any other
person who is involved in making or administering the contract.
(c) through (d) Repealed by Session Laws 2001-409, s. 1, effective July 1, 2002.
(d1) Subdivision (a)(1) of this section does not apply to (i) any elected official or person appointed
to fill an elective office of a village, town, or city having a population of no more than 15,000 according
to the most recent official federal census, (ii) any elected official or person appointed to fill an elective
office of a county within which there is located no village, town, or city with a population of more than
15,000 according to the most recent official federal census, (iii) any elected official or person appointed to
fill an elective office on a city board of education in a city having a population of no more than 15,000
according to the most recent official federal census, (iv) any elected official or person appointed to fill an
elective office as a member of a county board of education in a county within which there is located no
village, town or city with a population of more than 15,000 according to the most recent official federal
census, (v) any physician, pharmacist, dentist, optometrist, veterinarian, or nurse appointed to a county
social services board, local health board, or area mental health, developmental disabilities, and substance
abuse board serving one or more counties within which there is located no village, town, or city with a
population of more than 15,000 according to the most recent official federal census, and (vi) any member
of the board of directors of a public hospital if all of the following apply:
(1) The undertaking or contract or series of undertakings or contracts between the village,
town, city, county, county social services board, county or city board of education,
local health board or area mental health, developmental disabilities, and substance
abuse board, or public hospital and one of its officials is approved by specific
resolution of the governing body adopted in an open and public meeting, and
recorded in its minutes and the amount does not exceed twenty thousand dollars
($20,000) for medically related services and forty thousand dollars ($40,000) for
other goods or services within a 12-month period.
(2) The official entering into the contract with the unit or agency does not participate in
any way or vote.
(3) The total annual amount of contracts with each official, shall be specifically noted in
the audited annual financial statement of the village, town, city, or county.
(4) The governing board of any village, town, city, county, county social services board,
county or city board of education, local health board, area mental health,
developmental disabilities, and substance abuse board, or public hospital which
contracts with any of the officials of their governmental unit shall post in a
conspicuous place in its village, town, or city hall, or courthouse, as the case may be,
a list of all such officials with whom such contracts have been made, briefly
describing the subject matter of the undertakings or contracts and showing their total
amounts; this list shall cover the preceding 12 months and shall be brought up-to-date
at least quarterly.
(d2) Subsection (d1) of this section does not apply to contracts that are subject to Article 8 of
Chapter 143 of the General Statutes, Public Building Contracts.
(d3) Subsection (a) of this section does not apply to an application for or the receipt of a grant
under the Agriculture Cost Share Program for Nonpoint Source Pollution Control created pursuant to Part
9 of Article 21 of Chapter 143 of the General Statutes or the Community Conservation Assistance
Program created pursuant to Part 11 of Article 21 of Chapter 143 of the General Statutes by a member of
the Soil and Water Conservation Commission if the requirements of G.S. 139-4(e) are met, and does not
apply to a district supervisor of a soil and water conservation district if the requirements of G.S. 139-8(b)
are met.
(d4) Subsection (a) of this section does not apply to an application for, or the receipt of a grant or
other financial assistance from, the Tobacco Trust Fund created under Article 75 of Chapter 143 of the
General Statutes by a member of the Tobacco Trust Fund Commission or an entity in which a member of
the Commission has an interest provided that the requirements of G.S. 143-717(h) are met.
(d5) This section does not apply to a public hospital subject to G.S. 131E-14.2 or a public hospital
authority subject to G.S. 131E-21.
(d6) This section does not apply to employment contracts between the State Board of Education
and its chief executive officer.
(e) Anyone violating this section shall be guilty of a Class 1 misdemeanor.
(f) A contract entered into in violation of this section is void. A contract that is void under this
section may continue in effect until an alternative can be arranged when: (i) immediate termination would
result in harm to the public health or welfare, and (ii) the continuation is approved as provided in this
subsection. A public agency that is a party to the contract may request approval to continue contracts
under this subsection as follows:
(1) Local governments, as defined in G.S. 159-7(15), public authorities, as defined in
G.S. 159-7(10), local school administrative units, and community colleges may
request approval from the chair of the Local Government Commission.
(2) All other public agencies may request approval from the State Director of the Budget.
Approval of continuation of contracts under this subsection shall be given for the minimum period
necessary to protect the public health or welfare. (1825, c. 1269, P.R.; 1826, c. 29; R.C., c. 34, s. 38; Code, s. 1011;
Rev., s. 3572; C.S., s. 4388; 1929, c. 19, s. 1; 1969, c. 1027; 1975, c. 409; 1977, cc. 240, 761; 1979, c. 720; 1981, c. 103, ss. 1, 2,
5; 1983, c. 544, ss. 1, 2; 1985, c. 190; 1987, c. 570; 1989, c. 231; 1991 (Reg. Sess., 1992), c. 1030, s. 5; 1993, c. 539, s. 145;
1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 519, s. 4; 2000-147, s. 6; 2001-409, s. 1; 2001-487, ss. 44(a), 44(b), 45; 2002-159, s. 28;
2006-78, s. 2; 2009-2, s. 2; 2009-226, s. 1.)
§ 18B-201. Conflict of interest.
(a) Financial Interests Restricted. – No person shall be appointed to or employed by the
Commission, a local board, or the ALE Division if that person or a member of that person's family related
to that person by blood or marriage to the first degree has or controls, directly or indirectly, a financial
interest in any commercial alcoholic beverage enterprise, including any business required to have an ABC
permit. The Commission may exempt from this provision any person, other than a Commission member,
when the financial interest in question is so insignificant or remote that it is unlikely to affect the person's
official actions in any way. Exemptions may be granted only to individuals, not to groups or classes of
people, and each exemption shall be in writing, be available for public inspection, and contain a statement
of the financial interest in question.
(b) Self-dealing. – The provisions of G.S. 14-234 shall apply to the Commission and local
boards.
(c) Dealing for Family Members. – Neither the Commission nor any local board shall contract or
otherwise deal in any business matter so that a member's spouse or any person related to him by blood to
a degree of first cousin or closer in any way benefits, directly or indirectly, from the transaction unless:
(1) The member whose relative benefits from the transaction abstains from participating
in any way, including voting, in the decision;
(2) The minutes of the meeting at which the final decision is reached specifically note the
member whose spouse or relative is benefited and the amount involved in each
transaction;
(3) The next annual audit of the Commission or local board specifically notes the
member and the amount involved in each transaction occurring during the year
covered by the audit; and
(4) If the transaction is by a local board, the Commission is notified at least two weeks
before final board approval of the transaction. (1981, c. 412, s. 2; 1993, c. 415, s. 4.)
§ 18B-207. Rules.
The Commission shall have authority to adopt, amend, and repeal rules to carry out the provisions of
this Chapter. Those rules shall become effective when adopted and filed pursuant to the provisions of
Chapter 150B of the General Statutes. (1937, c. 49, s. 4; cc. 237, 411; 1945, c. 954; 1949, c. 974, s. 9; 1961, c. 956;
1963, c. 426, s. 12; c. 916, s. 2; c. 1119, s. 1; 1965, c. 1063; c. 1102, s. 3; 1967, c. 222, s. 2; c. 1240, s. 1; 1971, c. 872, s. 1; 1973,
c. 28; c. 473, s. 1; c. 476, s. 133; c. 606; c. 1288, s. 1; cc. 1369, 1396; 1975, cc. 240, 453, 640; 1977, c. 70, ss. 15.1, 15.2, 16; c.
176, ss. 2, 6; 1977, 2nd Sess., c. 1138, ss. 3, 4, 18; 1979, c. 384, s. 1; c. 445, s. 5; c. 482; c. 801, s. 4; 1981, c. 412, s. 2; 1987, c.
827, s.1.)
§ 18B-700. Appointment and organization of local ABC boards.
(a) Membership. – A local ABC board shall consist of three members appointed for three-year
terms, unless a different membership or term is provided by a local act enacted before the effective date
of this Chapter, or unless the board is a board for a merged ABC system under G.S. 18B-703 and a
different size membership has been provided for as part of the negotiated merger. One member of the
initial board of a newly created ABC system shall be appointed for a three-year term, one member for a
two-year term, and one member for a one-year term. As the terms of initial board members expire, their
successors shall each be appointed for three-year terms. The appointing authority shall designate one
member of the local board as chairman.
(b) City Boards. – City ABC board members shall be appointed by the city governing body,
unless a different method of appointment is provided in a local act enacted before the effective date of this
Chapter.
(c) County Boards. – County ABC board members shall be appointed by the board of county
commissioners, unless a different method of appointment is provided in a local act enacted before the
effective date of this Chapter.
(d) Qualifications. – The appointing authority shall appoint members of a local board on the basis
of the appointees' interest in public affairs, good judgment, knowledge, ability, and good moral character.
(e) Vacancy. – A vacancy on a local board shall be filled by the appointing authority for the
remainder of the unexpired term. If the chairman's seat becomes vacant, the appointing authority may
designate either the new member or an existing member of the local board to complete the chairman's
term.
(f) Removal. – A member of a local board may be removed for cause at any time by the
appointing authority. Local board members are subject to the removal provisions of G.S. 18B-202.
(g) Salary. – A local board member may be compensated as determined by the appointing
authority.
(h) Conflict of Interest. – The provisions of G.S. 18B-201 shall apply to local board members and
employees.
(i) Bond. – Each local board member shall be bonded in an amount not less than five thousand
dollars ($5,000), secured by a corporate surety, for the faithful performance of his duties. A public
employees' blanket position bond in the required amount satisfies the requirements of this subsection. The
bond shall be payable to the local board and shall be approved by the appointing authority for the local
board. The appointing authority may exempt from this bond requirement any board member who does not
handle board funds, and it may also increase the amount of the bond for any member who does handle
board funds.
(j) Limited Liability. – A person serving as a member of a local ABC board shall be immune
individually from civil liability for monetary damages, except to the extent covered by insurance, for any
act or failure to act arising out of this service, except where the person:
(1) Was not acting within the scope of his official duties;
(2) Was not acting in good faith;
(3) Committed gross negligence or willful or wanton misconduct that resulted in the
damage or injury;
(4) Derived an improper personal financial benefit from the transaction; or
(5) Incurred the liability from the operation of a motor vehicle.
The immunity in this subsection is personal to the members of local ABC boards, and does not immunize
the local ABC board for liability for the acts or omissions of the members of the local ABC board. (1981, c.
412, s. 2; c. 747, s. 50; 1981 (Reg. Sess., 1982), c. 1262, s. 10; 1989, c. 800, s. 19.)
RRC STAFF OPINION
X Object, based on:
COMMENT:
There is no authority cited for the markup price or formula as set out in (a) lines 4 - 6 to be “determined by the [ABC] Commission” outside rulemaking.
§ 18B-203. Powers and duties of the Commission.
(a) Powers. – The Commission shall have authority to:
(1) Administer the ABC laws;
(2) Provide for enforcement of the ABC laws, in conjunction with the ALE Division;
(3) Set the prices of alcoholic beverages sold in local ABC stores as provided in Article
8;
(4) Require reports and audits from local boards as provided in G.S. 18B-205;
(5) Determine what brands of alcoholic beverages may be sold in this State;
(6) Contract for State ABC warehousing, as provided in G.S. 18B-204;
(7) Dispose of damaged alcoholic beverages, as provided in G.S. 18B-806;
(8) Remove for cause any member or employee of a local board;
(9) Supervise or disapprove purchasing by any local board and inspect all records of
purchases by local boards;
(10) Approve or disapprove rules adopted by any local board;
(11) Approve or disapprove the opening and location of ABC stores, as provided in
Article 8;
(12) Issue ABC permits, and impose sanctions against permittees;
(13) Provide for the testing of alcoholic beverages, as provided in G.S. 18B-206;
(14) Fix the amount of bailment charges and bailment surcharges to be assessed on liquor
shipped from a Commission warehouse;
(15) Collect bailment charges and bailment surcharges from local boards;
(16) Notwithstanding any law to the contrary, enter into contracts for design and
construction of a warehouse or warehouses and supervise work and materials used in
the construction, as provided in G.S. 18B-204;
(17) Provide for the distribution of spirituous liquor to armed forces installations within
this State for resale on the installation;
(18) Provide for the distribution and posting of warning signs to local ABC boards
regarding the dangers of alcohol consumption during pregnancy as required under
G.S. 18B-808;
(19) Recognize the holder of a wine importer permit or nonresident wine vendor permit as
a primary American source of supply for the wine of a winery. To be considered a
primary American source of supply, a wine importer must establish that it has
lawfully purchased the wine from the winery, or from an agent of the winery, and by
written contract or otherwise has been authorized by the winery to distribute the wine
to wholesalers in the United States.
(b) Implied Powers. – The Commission shall have all other powers which may be reasonably
implied from the granting of the express powers stated in subsection (a), or which may be incidental to, or
convenient for, performing the duties given to the Commission. (1937, c. 49, s. 4; cc. 237, 411; 1945, c.
954; 1949, c. 974, s. 9; 1961, c. 956; 1963, c. 426, s. 12; c. 916, s. 2; c. 1119, s. 1; 1965, c. 1063; c. 1102,
s. 3; 1967, c. 222, s. 2; c. 1240, s. 1; 1971, c. 872, s. 1; 1973, c. 28; c. 473, s. 1; c. 476, s. 133; c. 606; c.
1288, s. 1; cc. 1369, 1396; 1975, cc. 240, 453, 640; 1977, c. 70, ss. 15.1, 15.2, 16; c. 176, ss. 2, 6; 1977,
2nd Sess., c. 1138, ss. 3, 4, 18; 1979, c. 384, s. 1; c. 445, s. 5; c. 482; c. 801, s. 4; 1981, c. 412, s. 2; c.
747, s. 38; 1981 (Reg. Sess., 1982), c. 1285, s. 2; 1987, c. 136, s. 1; 2003-339, s. 1; 2006-227, s. 10.)
§ 18B-207. Rules.
The Commission shall have authority to adopt, amend, and repeal rules to carry out the provisions of
this Chapter. Those rules shall become effective when adopted and filed pursuant to the provisions of
Chapter 150B of the General Statutes. (1937, c. 49, s. 4; cc. 237, 411; 1945, c. 954; 1949, c. 974, s. 9;
1961, c. 956; 1963, c. 426, s. 12; c. 916, s. 2; c. 1119, s. 1; 1965, c. 1063; c. 1102, s. 3; 1967, c. 222, s. 2;
c. 1240, s. 1; 1971, c. 872, s. 1; 1973, c. 28; c. 473, s. 1; c. 476, s. 133; c. 606; c. 1288, s. 1; cc. 1369,
1396; 1975, cc. 240, 453, 640; 1977, c. 70, ss. 15.1, 15.2, 16; c. 176, ss. 2, 6; 1977, 2nd Sess., c. 1138, ss.
3, 4, 18; 1979, c. 384, s. 1; c. 445, s. 5; c. 482; c. 801, s. 4; 1981, c. 412, s. 2; 1987, c. 827, s.1.)
§ 18B-804. Alcoholic beverage pricing.
(a) Uniform Price of Spirituous Liquor. – The retail price of spirituous liquor sold in ABC stores
shall be uniform throughout the State, unless otherwise provided by the ABC law.
(b) Sale Price of Spirituous Liquor. – The sale of spirituous liquor sold at the uniform State price
shall consist of the following components:
(1) The distiller's price.
(2) The freight and bailment charges of the State warehouse as determined by the
Commission.
(3) A markup for local boards as determined by the Commission.
(4) The tax levied under G.S. 105-113.80(c), which shall be levied on the sum of
subdivisions (1), (2), and (3).
(5) An additional markup for local boards equal to three and one-half percent (3 1/2%) of
the sum of subdivisions (1), (2), and (3).
(6) A bottle charge of one cent (1¢) on each bottle containing 50 milliliters or less and
five cents (5¢) on each bottle containing more than 50 milliliters.
(6a) The bailment surcharge.
(6b) An additional bottle charge for local boards of one cent (1¢) on each bottle containing
50 milliliters or less and five cents (5¢) on each bottle containing more than 50
milliliters.
(7) A rounding adjustment, the formula of which may be determined by the Commission,
so that the sale price will be divisible by five.
(8) If the spirituous liquor is sold to a mixed beverage permittee for resale in mixed
beverages, a charge of twenty dollars ($20.00) on each four liters and a proportional
sum on lesser quantities.
(9) If the spirituous liquor is sold to a guest room cabinet permittee for resale, a charge of
twenty dollars ($20.00) on each four liters and a proportional sum on lesser
quantities.
(c) Sale Price of Fortified Wine. – The sale price of fortified wine shall include the tax levied by
G.S. 105-113.80(b), as well as State and local sales taxes.
(d) Repealed by Session Laws 1985, c. 59, s. 2. (1937, c. 49, s. 4; cc. 237, 411; 1945, c. 954;
1949, c. 974, s. 9; 1961, c. 956; 1963, c. 426, s. 12; c. 916, s. 2; c. 1119, s. 1; 1965, c. 1063; c. 1102, s. 3;
1967, c. 222, s. 2; c. 1240, s. 1; 1971, c. 872, s. 1; 1973, c. 28; c. 473, s. 1; c. 476, s. 133; c. 606; c. 1288,
s. 1; cc. 1369, 1396; 1975, cc. 240, 453, 640; 1977, c. 70, ss. 15.1, 15.2, 16; c. 176, ss. 2, 6; 1977, 2nd
Sess., c. 1138, ss. 3, 4, 18; 1979, c. 384, s. 1; c. 445, s. 5; c. 482; c. 801, s. 4; 1981, c. 412, s. 2; 1981
(Reg. Sess., 1982), c. 1285, s. 5; 1983, c. 713, ss. 100, 101; 1985, c. 59, s. 2; c. 68, s. 1; c. 114, ss. 7-9;
1991, c. 565, ss. 4, 7; c. 689, ss. 304, 305; 1991 (Reg. Sess., 1992), c. 920, s. 3.)
RRC STAFF OPINION
AGENCY: NC DHHS – DIVISION OF HEALTH SERVICES REGULATION RULE CITATION: 10A NCAC 14C .1902 RECOMMENDED ACTION:
X Object, based on:
Lack of statutory authority
COMMENT:
In (c)(5) page 2 it is unclear what constitutes a “minority community.” What are the demographic parameters that lead us to identify a particular group as a minority community?
It is also unclear whether the rule is meant to focus on any minority or only African-American minorities that are the focus of the preceding sub-paragraph. It is also not clear whether “African American” is meant to refer to only American blacks or whether the rule intends to identify a black minority as a black person of any nationality and not just American.
RRC STAFF OPINION
AGENCY: APPRENTICESHIP COUNCIL and DEPARTMENT OF LABOR
RULE CITATION: ALL TITLE 13 Rules EXCEPT 14A .0108 and 14B .0101
RECOMMENDED ACTION:
Object, based on:
COMMENT: These rules were noticed in the Register and later submitted to the Rules Review
Commission as rules from the Department of Labor. The agency with statutory authority for these rules is
the Apprenticeship Council, subject to the approval of the Commissioner of Labor. The Council is an
agency all of whose voting members are appointed by the Commissioner. The only rulemaking authority
given directly to the Commissioner of Labor, the head of the Department of Labor, in G.S. Chapter 94 is
in relation to fees in G.S. 94-12.
Approval authority is not sufficient authority for the Department (Commissioner) to propose and adopt
these rules in place of the Apprenticeship Council. Only the Apprenticeship Council appears to have that
authority.
The Apprenticeship Council was notified by the Department that the Department planned to engage in
this rulemaking prior to the commencement of rulemaking without objection from the Council last
November. When the Department was notified that it appeared that the wrong agency had engaged in this
rulemaking activity, it called a meeting of the right agency, the Apprenticeship Council, on October 12.
At that meeting, the Apprenticeship Council formally adopted the rules.
Staff is satisfied that the Council has substantially complied with the Administrative Procedure Act
(APA). The Council was involved prior to the start of rulemaking and has formally adopted the rules.
The only real problem is that the published notice said the Department was proposing to adopt the rules.
Since all voting members are appointed by the Commissioner and the stated purpose of the Council is to
aid the Commissioner in formulating policies for the effective administration of the law pursuant to which
these rules were adopted, staff doubts that anyone was misled by the notice. Staff is satisfied that this is
substantial compliance with the Administrative Procedure Act as required by G.S. 150B-18.
If you find that the Apprenticeship Council did not substantially comply with the APA, then you should
object to the rules for the failure to comply with the APA.
Chapter 94.
§ 94-1. Purpose.
The purposes of this Chapter are: to open to young people the opportunity to obtain training
that will equip them for profitable employment and citizenship; to set up, as a means to this end,
a program of voluntary apprenticeship under approved apprentice agreements providing facilities
for their training and guidance in the arts and crafts of industry and trade, with parallel
instruction in related and supplementary education; to promote employment opportunities for
young people under conditions providing adequate training and reasonable earnings; to relate the
supply of skilled workers to employment demands; to establish standards for apprentice training;
to establish an Apprenticeship Council and apprenticeship committees and sponsors to assist in
effectuating the purposes of this Chapter; to provide for a Director of Apprenticeship within the
Department of Labor; to provide for reports to the legislature and to the public regarding the
status of apprentice training in the State; to establish a procedure for the determination of
apprentice agreement controversies; and to accomplish related ends. (1939, c. 229, s. 1; 1979, c.
673, s. 1.)
§ 94-2. Apprenticeship Council.
The Commissioner of Labor shall appoint an Apprenticeship Council composed of four
representatives each from employer and employee organizations respectively and three
representatives from the public at large. One State official designated by the Department of
Public Instruction and one State official designated by the Department of Community Colleges
shall be a member ex officio of said council, without vote. The terms of office of the members of
the Apprenticeship Council first appointed by the Commissioner of Labor shall expire as
designated by the Commissioner at the time of making the appointment: two representatives each
of employers and employees, being appointed for one year and one representative of the public at
large being appointed for two years; and one representative each of employers, employees, and
the public at large being appointed for a term of three years. Any member appointed to fill a
vacancy occurring prior to the expiration of the term of his predecessor shall be appointed for the
remainder of said term. Each member of the Council not otherwise compensated by public
moneys, shall be reimbursed for transportation and shall receive such per diem compensation as
is provided generally for boards and commissions under the biennial maintenance appropriation
acts for each day spent in attendance at meetings of the Apprenticeship Council. The
Commissioner of Labor shall annually appoint one member of the Council to act as its chairman.
The Apprenticeship Council shall meet at the call of the Commissioner of Labor and shall aid
him in formulating policies for the effective administration of this Chapter. Subject to the
approval of the Commissioner, the Apprenticeship Council shall establish standards for
apprentice agreement which in no case shall be lower than those prescribed by this Chapter, shall
issue such rules and regulations as may be necessary to carry out the intent and purposes of said
Chapter, and shall perform such other functions as the Commissioner may direct. Not less than
once a year the Apprenticeship Council shall make a report through the Commissioner of Labor
of its activities and findings to the legislature and to the public. (1939, c. 229, s. 2; 1973, c. 476,
s. 138; 1977, c. 896.)
§ 94-3. Director of Apprenticeship.
The Commissioner of Labor is hereby directed to appoint a Director of Apprenticeship which
appointment shall be subject to the confirmation of the State Apprenticeship Council by a
majority vote. The Commissioner of Labor is further authorized to appoint and employ such
clerical, technical, and professional help as shall be necessary to effectuate the purposes of this
Chapter. (1939, c. 229, s. 3.)
§ 94-4. Powers and duties of Director of Apprenticeship.
The Director, under the supervision of the Commissioner of Labor and with the advice and
guidance of the Apprenticeship Council is authorized to administer the provisions of this
Chapter; in cooperation with the Apprenticeship Council and apprenticeship committees and
sponsors, to set up conditions and training standards for apprentice agreements, which conditions
or standards shall in no case be lower than those prescribed by this Chapter; to act as secretary of
the Apprenticeship Council; to approve for the Council if in his opinion approval is for the best
interest of the apprenticeship any apprentice agreement which meets the standards established
under this Chapter; to terminate or cancel any apprentice agreement in accordance with the
provisions of such agreement; to keep a record of apprentice agreements and their disposition; to
issue certificates of completion of apprenticeship; and to perform such other duties as are
necessary to carry out the intent of this Chapter, including other on-job training necessary for
emergency and critical civilian production: Provided, that the administration and supervision of
related and supplemental instruction for apprentices, coordination of instruction with job
experiences, and the selection and training of teachers and coordinators for such instruction shall
be the responsibility of State and local boards responsible for vocational education. (1939, c.
229, s. 4; 1951, c. 1031, s. 1; 1979, c. 673, s. 2.)
§ 94-5. Apprenticeship committees and program sponsors.
(a) As used in this Chapter:
(1) "Apprenticeship program" means a plan containing all terms and conditions
for the qualification, recruitment, selection, employment, and training of
apprentices, including such matters as the requirement for a written
apprenticeship agreement.
(2) "Apprenticeship agreement" means a written agreement between an
apprentice and either his employer or an apprenticeship committee or sponsor
acting as agent for employer(s), which agreement satisfies the requirements of
G.S. 94-7.
(3) "Sponsor" means any person, firm, corporation, organization, association or
committee operating an apprenticeship program and in whose name the
apprenticeship program is approved.
(4) "Employer" means any person, firm, corporation or organization employing
an apprentice whether or not such person, firm, corporation or organization is
a party to an apprenticeship agreement with the apprentice.
(5) "Apprenticeship committee" means those persons designated by the sponsor,
and approved by the Apprenticeship Council, to act for it in the administration
of the apprenticeship program. A committee may be "joint," i.e., it is
composed of an equal number of representatives of the employer(s) and of the
employees represented by a bona fide collective bargaining agent(s) and has
been established to conduct, operate or administer an apprenticeship program
and enter into apprenticeship agreements with apprentices. A committee may
be "unilateral" or "nonjoint" which shall mean a program sponsor in which
employees or a bona fide collective bargaining agent is not a party.
(b) An apprenticeship committee may be appointed by the Apprenticeship Council in any
trade or group of trades in a city or trade area, whenever the apprentice training needs of such
trade or group of trades justifies such establishment.
(c) The function of the apprenticeship committee, or sponsor when there is no
apprenticeship committee, shall be: to cooperate with school authorities in regard to the
education of apprentices; in accordance with the standards set up by the apprenticeship
committee for the same trade or group of trades, where such committee has been appointed, to
work in an advisory capacity with employers and employees in matters regarding schedule of
operations, application of wage rates, and working conditions for apprentices and to specify the
number of apprentices which shall be employed locally in the trade under the apprenticeship
agreements under this Chapter; and to adjust apprenticeship disputes, subject to the approval of
the director; to ascertain the prevailing rate for journeymen in the city or trade area and specify
the graduated scale of wages applicable to apprentices in such trade in such area; to ascertain
employment needs in such trade or group of trades and specify the appropriate current ratio of
apprentices to journeymen; and to make recommendations for the general good of apprentices
engaged in the trade or trades represented by the committee. An apprenticeship committee may
appoint a representative and delegate to such representative the authority for implementation and
performance of any standards adopted by the committee pursuant to any of the aforementioned
functions. (1939, c. 229, s. 5; 1979, c. 673, s. 3.)
§ 94-6. Definition of an apprentice.
The term "apprentice," as used herein, shall mean a person at least 16 years of age who is
covered by a written apprenticeship agreement approved by the Apprenticeship Council, which
apprenticeship agreement provides for not less than 2,000 hours of reasonably continuous
employment for such person for his participation in an approved schedule of work experience
and for organized, related supplemental instruction in technical subjects related to the trade. A
minimum of 144 hours of related supplemental instruction for each year of apprenticeship is
recommended. The required hours for apprenticeship agreements and the recommended hours
for related supplemental instruction may be decreased or increased in accordance with standards
adopted by the apprenticeship committee or sponsor, subject to approval of the Commissioner of
Labor. (1939, c. 229, s. 6; 1979, c. 479, ss. 1, 2; c. 673, s. 4.)
§ 94-7. Contents of agreement.
Every apprentice agreement entered into under this Chapter shall contain:
(1) The names of the contracting parties.
(2) The date of birth of the apprentice.
(3) A statement of the trade, craft, or business which the apprentice is to be
taught, and the time at which the apprenticeship will begin and end.
(4) A statement showing (i) the number of hours to be spent by the apprentice in
work on the job, and (ii) the number of hours to be spent in related and
supplemental instruction, which is recommended to be not less than 144 hours
per year: Provided, that in no case shall the combined weekly hours of work
and of required related and supplemental instruction of the apprentice exceed
the maximum number of hours of work prescribed by law for a person of the
age of the apprentice.
(5) A statement setting forth a schedule of the processes in the trade or industry
division in which the apprentice is to be taught and the approximate time to be
spent at each process.
(6) A statement of the graduated scale of wages to be paid the apprentice and
whether the required school time shall be compensated.
(7) A statement providing for a period of probation of not more than 500 hours of
employment and instruction extending over not more than four months, during
which time the apprentice agreement shall be terminated by the Director at the
request in writing of either party, and providing that after such probationary
period the apprentice agreement may be terminated by the Director by mutual
agreement of all parties thereto, or canceled by the Director for good and
sufficient reason. The Council at the request of a joint apprentice committee
may lengthen the period of probation.
(8) A provision that all controversies or differences concerning the apprentice
agreement which cannot be adjusted locally in accordance with G.S. 94-5
shall be submitted to the Director for determination.
(9) A provision that an employer who is unable to fulfill his obligation under the
apprentice agreement may with the approval of the Director transfer such
contract to any other employer: Provided, that the apprentice consents and
that such other employer agrees to assume the obligations of said apprentice
agreement.
(10) Such additional terms and conditions as may be prescribed or approved by the
Director not inconsistent with the provisions of this Chapter. (1939, c. 229, s.
7; 1945, c. 729, s. 1; 1977, c. 550, s. 1; 1979, c. 673, s. 5.)
§ 94-8. Approval of apprentice agreements; signatures.
No apprentice agreement under this Chapter shall be effective until approved by the Director.
Every apprentice agreement shall be signed by the employer, or by an association of employers
or an organization of employees as provided in G.S. 94-9, and by the apprentice, and if the
apprentice is a minor, by either of the minor's lawful parents, or by any person, agency,
organization or institution standing in loco parentis. Where a minor enters into an apprentice
agreement under this Chapter for a period of training extending into his majority, the apprentice
agreement shall likewise be binding for such a period as may be covered during the apprentice's
majority. (1939, c. 229, s. 8; 1977, c. 550, s. 2.)
§ 94-9. Rotation of employment.
For the purpose of providing greater diversity of training or continuity of employment, any
apprentice agreement made under this Chapter may in the discretion of the Director of
Apprenticeship be signed by an association of employers or an organization of employees
instead of by an individual employer. In such a case, the apprentice agreement shall expressly
provide that the association of employers or organization of employees does not assume the
obligation of an employer but agrees to use its best endeavors to procure employment and
training for such apprentice with one or more employers who will accept full responsibility, as
herein provided, for all the terms and conditions of employment and training set forth in said
agreement between the apprentice and employer association or employee organization during the
period of each such employment. The apprentice agreement in such a case shall also expressly
provide for the transfer of the apprentice, subject to the approval of the Director, to such
employer or employers who shall sign in written agreement with the apprentice, and if the
apprentice is a minor with his parent or guardian, as specified in G.S. 94-8, contracting to
employ said apprentice for the whole or a definite part of the total period of apprenticeship under
the terms and conditions of employment and training set forth in the said agreement entered into
between the apprentice and employer association or employee organization. (1939, c. 229, s. 9.)
§ 94-10. Repealed by Session Laws 1945, c. 729, s. 2.
§ 94-11. Limitation.
Nothing in this Chapter or in any apprentice agreement approved under this Chapter shall
operate to invalidate any apprenticeship provision in any collective agreement between
employers and employees, setting up higher apprenticeship standards; provided, that none of the
terms or provisions of this Chapter shall apply to any person, firm, corporation or crafts unless,
until, and only so long as such person, firm, corporation or crafts voluntarily elects that the terms
and provisions of this Chapter shall apply. Any person, firm, corporation or crafts terminating an
apprenticeship agreement shall notify the Director of Apprenticeship. (1939, c. 229, s. 11; 1945,
c. 729, s. 3.)
§ 94-12. Fees.
The following fees are imposed on each apprentice who is covered by a written
apprenticeship agreement entered into under this Chapter: (i) a new registration fee of
fifty dollars ($50.00); and (ii) an annual fee of fifty dollars ($50.00). Each fee authorized
by this section is payable as thirty dollars ($30.00) by the sponsor and twenty dollars
($20.00) by the apprentice. The sponsor shall collect the fees authorized by this section
from the apprentice and remit the total fees owed by the sponsor and the apprentice to the
Department of Labor. The fees are departmental receipts and must be applied to the costs
of administering the apprenticeship program. The Commissioner may adopt rules
pursuant to Chapter 150B of the General Statutes to implement this section. The
provisions of this section shall not apply to the State, a department or agency of the State,
or any political subdivision of the State or an apprentice of the State, a department or
agency of the State, or any political subdivision of the State. (2009-451, s. 12.1.)
RRC STAFF OPINION
AGENCY: APPRENTICESHIP COUNCIL
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (a)(4), there is no authority cited for the agency to set occupational requirements for apprenticeship
instructors. G.S. 94-4 specifically states that "the selection and training of teachers and coordinators of
such instruction shall be the responsibility of State and local boards responsible for vocational education."
ROBERT A. BRYAN, JR. COMMISSION COUNSEL
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (g)(2), it is not clear to whom the department is going to recommend a program for deregistration
procedures. It appears that the department itself has the deregistration authority.
There is the same issue in (h).
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
Item (5) is not consistent with G.S. 94-7(8). The statute provides that controversies or differences that
cannot be adjusted locally be submitted to the Director for determination. The rule requires the
designation of some other authority.
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
The provision in Paragraph (c) giving a sponsor 30 days to appeal the director's decision (file a contested
case) is not consistent with G.S. 150B-23(f) which gives 60 days.
§ 150B-23. Commencement; assignment of administrative law judge; hearing required;
notice; intervention.
(a) A contested case shall be commenced by paying a fee in an amount established in
G.S. 150B-23.2 and by filing a petition with the Office of Administrative Hearings and, except
as provided in Article 3A of this Chapter, shall be conducted by that Office. The party who files
the petition shall serve a copy of the petition on all other parties and, if the dispute concerns a
license, the person who holds the license. A party who files a petition shall file a certificate of
service together with the petition. A petition shall be signed by a party or a representative of the
party and, if filed by a party other than an agency, shall state facts tending to establish that the
agency named as the respondent has deprived the petitioner of property, has ordered the
petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner's
rights and that the agency:
(1) Exceeded its authority or jurisdiction;
(2) Acted erroneously;
(5) Failed to act as required by law or rule.
The parties in a contested case shall be given an opportunity for a hearing without undue delay.
Any person aggrieved may commence a contested case hereunder.
A local government employee, applicant for employment, or former employee to whom
Chapter 126 of the General Statutes applies may commence a contested case under this Article in
the same manner as any other petitioner. The case shall be conducted in the same manner as
other contested cases under this Article, except that the State Personnel Commission shall enter
final decisions only in cases in which it is found that the employee, applicant, or former
employee has been subjected to discrimination prohibited by Article 6 of Chapter 126 of the
General Statutes or in any case where a binding decision is required by applicable federal
standards. In these cases, the State Personnel Commission's decision shall be binding on the local
appointing authority. In all other cases, the final decision shall be made by the applicable
appointing authority.
(a1) Repealed by Session Laws 1985 (Regular Session, 1986), c. 1022, s. 1(9).
(a2) An administrative law judge assigned to a contested case may require a party to the
case to file a prehearing statement. A party's prehearing statement must be served on all other
parties to the contested case.
(b) The parties to a contested case shall be given a notice of hearing not less than 15 days
before the hearing by the Office of Administrative Hearings. If prehearing statements have been
filed in the case, the notice shall state the date, hour, and place of the hearing. If prehearing
statements have not been filed in the case, the notice shall state the date, hour, place, and nature
of the hearing, shall list the particular sections of the statutes and rules involved, and shall give a
short and plain statement of the factual allegations.
(c) Notice shall be given personally or by certified mail. If given by certified mail, it
shall be deemed to have been given on the delivery date appearing on the return receipt. If giving
of notice cannot be accomplished either personally or by certified mail, notice shall then be given
in the manner provided in G.S. 1A-1, Rule 4(j1).
(d) Any person may petition to become a party by filing a motion to intervene in the
manner provided in G.S. 1A-1, Rule 24. In addition, any person interested in a contested case
may intervene and participate in that proceeding to the extent deemed appropriate by the
administrative law judge.
(e) All hearings under this Chapter shall be open to the public. Hearings shall be
conducted in an impartial manner. Hearings shall be conducted according to the procedures set
out in this Article, except to the extent and in the particulars that specific hearing procedures and
time standards are governed by another statute.
(f) Unless another statute or a federal statute or regulation sets a time limitation for the
filing of a petition in contested cases against a specified agency, the general limitation for the
filing of a petition in a contested case is 60 days. The time limitation, whether established by
another statute, federal statute, or federal regulation, or this section, shall commence when notice
is given of the agency decision to all persons aggrieved who are known to the agency by
personal delivery or by the placing of the notice in an official depository of the United States
Postal Service wrapped in a wrapper addressed to the person at the latest address given by the
person to the agency. The notice shall be in writing, and shall set forth the agency action, and
shall inform the persons of the right, the procedure, and the time limit to file a contested case
petition. When no informal settlement request has been received by the agency prior to issuance
of the notice, any subsequent informal settlement request shall not suspend the time limitation
for the filing of a petition for a contested case hearing. (1973, c. 1331, s. 1; 1975, 2nd Sess., c.
983, s. 65; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, ss. 1(9), (10), 6(2), (3); 1987, c.
878, ss. 3-5; c. 879, s. 6.1; 1987 (Reg. Sess., 1988), c. 1111, s. 5; 1991, c. 35, s. 1; 1993 (Reg.
Sess., 1994), c. 572, s. 2; 2009-451, s. 21A.1(a).)
RRC STAFF OPINION
AGENCY: APPRENTICESHIP COUNCIL and DEPARTMENT OF LABOR
RULE CITATION: 13 NCAC 14B .0213
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (c)(3), it is not clear what factors the director will use in determining good cause for an extension. As
written this provision amounts to a modification provision without specific guidelines in violation of G.S.
150B-19(6).
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (a)(2)(C), it is not clear what constitutes "good and sufficient reason."
In (d), it is not clear what constitutes "good cause" for de-registration.
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (b)(4), it is not clear what is meant by "the extent to which the sponsor should be expected to correct
any deficiencies through the achievement of goals and timetables for the selection of apprentices."
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (b)(7), it is not clear what other records will be required by the director.
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (e)(3), it is not clear what standards the department will use in determining what is a reasonable time.
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
In (a), it is not clear what standards the director will use in determining what is a reasonable time.
RRC STAFF OPINION
AGENCY: BOARD OF ARCHITECTURE
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
There does not appear to be any authority for the two hundred fifty dollars ($250.00) reinstatement fee.
G.S. 83A-4 specifically prohibits the Board from collecting any fees not authorized by Chapter 83A. G.S.
83A-11 allows the Board to reinstate in its discretion after one year from the date of revocation, but it
does not authorize any special fee to do so. It appears that the only fees allowed to be charged are one
renewal fee plus a late penalty without any stacking.
§ 83A-4. Fees.
All fees and charges by the Board shall be established by Board rule subject to the provisions
of the Administrative Procedure Act.
Fees set by the Board shall not exceed the following amounts:
Initial Application
Reciprocal Registration $150.00
The above fees are provided in addition to any other fees prescribed by law. Reasonable fees for
examination materials, certificates, rosters and other published materials shall be established by
the Board, but the Board shall not collect any fees not authorized by this Chapter. (1915, c. 270,
ss. 3, 6; 1919, c. 336, ss. 1, 2; C.S., ss. 4992, 4994, 4995; 1951, c. 1130, s. 2; 1957, c. 794, ss. 7,
9, 10; 1971, c. 1231, s. 1; 1979, c. 871, s. 1; 1985, c. 364.)
§ 83A-11. Expirations and renewals.
Certificates must be renewed on or before the first day of July in each year. No less than 30
days prior to the renewal date, a renewal application shall be mailed to each individual and
corporate licensee. The completed application together with the required renewal fee shall be
returned to the Board on or before the renewal date. When the Board is satisfied as to the
continuing competency of an architect, it shall issue a renewal of the certificate. Upon failure to
renew within 30 days after the date set for expiration, the license shall be automatically revoked
but such license may be renewed at any time within one year following the expiration date upon
proof of continuing competency and payment of the renewal fee plus a late renewal fee. After
one year from the date of revocation, reinstatement may be made by the Board, or in its
discretion, the application may be treated as new subject to reexamination and qualification
requirements as in the case of new applications. (1919, c. 336, s. 2; C.S., s. 4995; 1951, c. 1130,
s. 2; 1957, c. 794, s. 10; 1979, c. 871, s. 1.)
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
There is no authority for the Board to adopt a rule limiting the practice of architecture beyond any
limitations in G.S. Chapter 83A. For instance, G.S. 83A-9 would appear to allow for a general
partnership, but the rule appears to prohibit that.
§ 83A-6. Board rules; bylaws; standards of professional conduct.
(a) The Board shall have the power to adopt bylaws, rules, and standards of professional
conduct to carry out the purposes of this Chapter, including, but not limited to:
(1) The adoption of bylaws governing its meetings and proceedings;
(2) The establishment of qualification requirements for admission to
examinations, and for individual or corporate licensure as provided in G.S.
83A-7 and 83A-8;
(3) The establishment of the types and contents of examinations, their conduct,
and the minimum scores or other criteria for passing such examinations;
(4) The adoption of mandatory standards of professional conduct concerning
misrepresentations, conflicts of interest, incompetence, disability, violations
of law, dishonest conduct, or other unprofessional conduct for those persons
or corporations regulated by this Chapter, which standards shall be
enforceable under the disciplinary procedures of the Board;
(5) The establishment or approval of requirements for renewal of licenses
designed to promote the continued professional development and competence
of licensees. Such requirements shall be designed solely to improve the
professional knowledge and skills of a licensee directly related to the current
and emerging bodies of knowledge and skills of the licensee's profession.
When necessary to protect the public health, safety, or welfare, the Board shall require such
evidence as it deems necessary to establish the continuing competency of architects as a
condition of renewal of licenses.
(b) The Board shall not adopt any rule or regulation which prohibits advertising.
(c) The adoption, amendment or revocation of rules, regulations, and standards of
professional conduct, and the publication and distribution of the same shall be subject to the
provisions of the Administrative Procedure Act. (1979, c. 871, s. 1.)
§ 83A-8. Qualification for corporate practice.
(a) Any corporation desiring to practice architecture in this State shall file corporate
application on forms provided by the Board, accompanied by the required application fee. To be
eligible for a corporate certificate, the corporation must meet all requirements of the Professional
Corporation Act.
(b) Architectural corporations of other states may be granted corporate certificates for
practice in this State upon filing application with the Board and satisfying the Board that they
meet the requirements of subsection (a) above. Such corporations shall designate the individual
or individuals licensed to practice architecture in this State who shall be in responsible charge of
all architectural work offered or performed by such corporation in this State. Such corporations
shall notify the Board of changes in such designation.
(c) All corporations holding corporate certificates from the Board shall be subject to the
applicable rules and regulations adopted by the Board, and to all the disciplinary powers
applicable to individual licensees who are officers or employees of the corporation. Corporations
may perform no acts or things forbidden to officers or employees as licensees. (1979, c. 871, s.
1.)
§ 83A-9. Partnership practice.
This Chapter neither prevents practice of architecture by a partnership nor requires
partnership seals or certificates of practice provided that the members of the partnership are duly
licensed to practice architecture, and, provided that the partnership files with the Board and
keeps current a list of the partners, their license identifications, and the types of services offered
by the partnership. (1979, c. 871, s. 1.)
RRC STAFF OPINION
RECOMMENDED ACTION:
X Object, based on:
COMMENT:
There is no authority cited for the Board to require seals for a Limited Liability Partnership as the rule
does in (a)(3)(C), or for a partnership as the rule does in (a)(3)(D). G.S. 83A-9 specifically states that
G.S. Chapter 83A does not require partnership seals. The only seals required by statute are individual
seals and corporate seals. G.S. 57C-2-01(c) would extend that to Professional Limited Liability
Companies.
§ 83A-6. Board rules; bylaws; standards of professional conduct.
(a) The Board shall have the power to adopt bylaws, rules, and standards of professional
conduct to carry out the purposes of this Chapter, including, but not limited to:
(1) The adoption of bylaws governing its meetings and proceedings;
(2) The establishment of qualification requirements for admission to
examinations, and for individual or corporate licensure as provided in G.S.
83A-7 and 83A-8;
(3) The establishment of the types and contents of examinations, their conduct,
and the minimum scores or other criteria for passing such examinations;
(4) The adoption of mandatory standards of professional conduct concerning
misrepresentations, conflicts of interest, incompetence, disability, violations
of law, dishonest conduct, or other unprofessional conduct for those persons
or corporations regulated by this Chapter, which standards shall be
enforceable under the disciplinary procedures of the Board;
(5) The establishment or approval of requirements for renewal of licenses
designed to promote the continued professional development and competence
of licensees. Such requirements shall be designed solely to improve the
professional knowledge and skills of a licensee directly related to the current
and emerging bodies of knowledge and skills of the licensee's profession.
When necessary to protect the public health, safety, or welfare, the Board shall require such
evidence as it deems necessary to establish the continuing competency of architects as a
condition of renewal of licenses.
(b) The Board shall not adopt any rule or regulation which prohibits advertising.
(c) The adoption, amendment or revocation of rules, regulations, and standards of
professional conduct, and the publication and distribution of the same shall be subject to the
provisions of the Administrative Procedure Act. (1979, c. 871, s. 1.)
§ 83A-9. Partnership practice.
This Chapter neither prevents practice of architecture by a partnership nor requires
partnership seals or certificates of practice provided that the members of the partnership are duly
licensed to practice architecture, and, provided that the partnership files with the Board and
keeps current a list of the partners, their license identifications, and the types of services offered
by the partnership. (1979, c. 871, s. 1.)
§ 83A-10. Professional seals.
Every licensed architect shall have a seal of a design authorized by the Board, and shall
imprint all drawings and sets of specifications prepared for use in this State with an impression
of such seal. Licensed architectural corporations shall employ corporate professional seals, of a
design approved by the Board, for use in identifying plans, specifications and other professional
documents issued by the corporation, but use of such corporate seals shall be in addition to and
not in substitution for the requirement that the individual seal of the author of such plans and
professional documents be affixed. (1915, c. 270, s. 7; C.S., s. 4997; 1979, c. 871, s. 1.)
§ 83A-12. Prohibited practice.
The purpose of the Chapter is to safeguard life, health and property. It shall be unlawful for
any individual, firm or corporation to practice or offer to practice architecture in this State as
defined in this Chapter, or to use the title "Architect" or any form thereof, except as provided in
Chapter 89A for Landscape Architects, or to display or use any words, letters, figures, titles,
sign, card, advertisement, or other device to indicate that such individual or firm practices or
offers to practice architecture as herein defined or is an architect or architectural firm qualified to
perform architectural work, unless such person holds a current individual or corporate certificate
of admission to practice architecture under the provisions of this Chapter. (1915, c. 270, s. 4;
C.S., s. 4996; 1941, c. 369, ss. 1, 2; 1951, c. 1130, s. 3; 1957, c. 794, s. 11; 1965, c. 1100; 1969,
c. 718, s. 21; 1973, c. 1414, s. 1; 1979, c. 871, s. 1.)
Article 2.
Purposes, Powers, Formation, Annual Report, Name, Registered Office, and Agent.
Part 1. Purposes and Powers.
§ 57C-2-01. Purposes.
(a) Every limited liability company formed under this Chapter has the purpose of
engaging in any lawful business unless a more limited lawful purpose is set forth in its articles of
organization.
(b) A domestic or foreign limited liability company engaging in a business that is subject
to regulation under another statute of this State may be formed or authorized to transact business
under this Chapter only if permitted by and subject to all limitations of the other statute giving
effect to subsection (c) of this section.
(c) Subsections (a) and (b) of this section to the contrary notwithstanding and except as
set forth in this subsection, a domestic or foreign limited liability company shall engage in
rendering professional services only to the extent that a professional corporation acting pursuant
to Chapter 55B of the General Sta

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