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NORTH CAROLINA REGISTER Volume 20, Issue 09 Pages 665 - 733 November 1, 2005 This issue contains documents officially filed through October 11, 2005. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Dana Sholes, Publications Coordinator Julie Brincefield, Editorial Assistant IN THIS ISSUE I. EXECUTIVE ORDERS Executive Order No. 91 ................................................................ 665 - 666 II. IN ADDITION Social Services Commission Notice of Public Hearing ................ 667 Voting Rights Letter ..................................................................... 668 Tax Review Board Decisions 455-465..................................................................... 669 - 683 III. PROPOSED RULES Health and Human Services Commission of MH/DD/SAS.................................................... 684 – 689 Licensing Boards Architecture............................................................................... 697 - 706 Dental Examiners ...................................................................... 706 - 710 Medical Board........................................................................... 710 - 714 Nursing...................................................................................... 714 - 719 Respiratory Care Board ............................................................. 719 - 721 Justice Company Police Program.......................................................... 689 - 697 IV. CONTESTED CASE DECISIONS Index to ALJ Decisions................................................................. 721 - 726 Text of Selected Decisions 04 DHR 1300 ............................................................................ 727 - 733 For the CUMULATIVE INDEX to the NC Register go to: http://reports.oah.state.nc.us/cumulativeIndex.pl North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2005 – December 2005 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule (first legislative day of the next regular session) 270th day from publication in the Register 19:13 01/03/05 12/08/04 01/18/05 03/04/05 03/21/05 05/01/05 05/06 09/30/05 19:14 01/18/05 12/22/04 02/02/05 03/21/05 04/20/05 06/01/05 05/06 10/15/05 19:15 02/01/05 01/10/05 02/16/05 04/04/05 04/20/05 06/01/05 05/06 10/29/05 19:16 02/15/05 01/25/05 03/02/05 04/18/05 04/20/05 06/01/05 05/06 11/12/05 19:17 03/01/05 02/08/05 03/16/05 05/02/05 05/20/05 07/01/05 05/06 11/26/05 19:18 03/15/05 02/22/05 03/30/05 05/16/05 05/20/05 07/01/05 05/06 12/10/05 19:19 04/01/05 03/10/05 04/16/05 05/31/05 06/20/05 08/01/05 05/06 12/27/05 19:20 04/15/05 03/24/05 04/30/05 06/14/05 06/20/05 08/01/05 05/06 01/10/06 19:21 05/02/05 04/11/05 05/17/05 07/01/05 07/20/05 09/01/05 05/06 01/27/06 19:22 05/16/05 04/25/05 05/31/05 07/15/05 07/20/05 09/01/05 05/06 02/10/06 19:23 06/01/05 05/10/05 06/16/05 08/01/05 08/22/05 10/01/05 05/06 02/26/06 19:24 06/15/05 05/24/05 06/30/05 08/15/05 08/22/05 10/01/05 05/06 03/12/06 20:01 07/01/05 06/10/05 07/16/05 08/30/05 09/20/05 11/01/05 05/06 03/28/06 20:02 07/15/05 06/23/05 07/30/05 09/13/05 09/20/05 11/01/05 05/06 04/11/06 20:03 08/01/05 07/11/05 08/16/05 09/30/05 10/20/05 12/01/05 05/06 04/28/06 20:04 08/15/05 07/25/05 08/30/05 10/14/05 10/20/05 12/01/05 05/06 05/12/06 20:05 09/01/05 08/11/05 09/16/05 10/31/05 11/21/05 01/01/06 05/06 05/29/06 20:06 09/15/05 08/25/05 09/30/05 11/14/05 11/21/05 01/01/06 05/06 06/12/06 20:07 10/03/05 09/12/05 10/18/05 12/02/05 12/20/05 02/01/06 05/06 06/30/06 20:08 10/17/05 09/26/05 11/01/05 12/16/05 12/20/05 02/01/06 05/06 07/14/06 20:09 11/01/05 10/11/05 11/16/05 01/03/06 01/20/06 03/01/06 05/06 07/29/06 20:10 11/15/05 10/24/05 11/30/05 01/17/06 01/20/06 03/01/06 05/06 08/12/06 20:11 12/01/05 11/07/05 12/16/05 01/30/06 02/20/06 04/01/06 05/06 08/28/06 20:12 12/15/05 11/22/05 12/30/05 02/13/06 02/20/06 04/01/06 05/06 09/11/06 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 665 EXECUTIVE ORDER NO. 91 GOVERNOR'S TASK FORCE FOR HEALTHY CAROLINIANS WHEREAS, North Carolina is blessed with some of the finest medical facilities and medical care found anywhere in the world; and WHEREAS, despite these resources, many North Carolinians die or are disabled prematurely every year due to preventable causes, exacting an enormous economic, social and personal toll upon our state; and WHEREAS, most premature deaths and disabilities are preventable by relatively simple changes in behavior that would reduce the causes of these deaths and disabilities, including diabetes, stroke, and obesity; and WHEREAS, in order to provide to the citizens of our state a way to prevent these tragic losses, a realistic plan needs to be developed that communities and individual citizens may implement to improve their health status and avoid premature death and disability; and WHEREAS, this plan must promote the advantages of healthy living and disease prevention. NOW THEREFORE, by the authority vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED: Section 1. Establishment and Rescission of Prior Orders The Governor’s Task Force for Healthy Carolinians (Governor’s Task Force) is hereby established. The Governor’s Task Force established herein is the successor organization to the Governor’s Task Force on Health Objectives for the Year 2000, established in Executive Order No. 56 issued by Governor James B. Hunt, Jr. on July 13, 1994. This Executive Order replaces Executive Order No. 13 dated October 9, 2001. Section 2. Membership The Governor’s Task Force shall have 37 members. The Governor shall appoint 33 members, including the Chair. The Vice Chair shall be elected by the Governor’s Task Force. The President Pro Tempore of the Senate shall be invited to appoint two Members of the Senate, one of whom serves on the Public Health Study Commission. The Speaker of the House of Representatives shall be invited to appoint two members of the House, one of whom serves on the Public Health Study Commission. Each member of the Task Force shall be appointed for terms of four years, and will serve until appointment of a successor. A vacancy on the Governor’s Task Force shall be filled by the original appointing authority. The Governor shall appoint representatives from the following: a. Secretary, Department of Health and Human Services, or designee; b. Association of North Carolina Boards of Health; c. North Carolina Hospital Association; d. North Carolina Medical Society; e. North Carolina Academy of Family Physicians; f. North Carolina Association of Local Health Directors; g. Dean, School of Public Health, University of North Carolina-CH, or designee; h. North Carolina Citizens for Business and Industry; i. North Carolina Commission on Indian Affairs; j. North Carolina Association of County Commissioners; k. National Association for the Advancement of Colored People; l. Mental Health/Developmental Disabilities/Substance Abuse Services Division, DHHS; m. State Health Director, Division Of Public Health, DHHS; n. Director, Office of Research, Demonstrations and Rural Health Development, DHHS or designee; o. North Carolina Dental Society; p. North Carolina Nurses’ Association q. Old North State Medical Society; r. North Carolina Public Health Association; s. Commissioner, NC Department of Agriculture and Consumer Services, or designee; t. Office of Minority Health, DHHS; u. Superintendent of Public Instruction, or designee; EXECUTIVE ORDERS 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 666 v. Governor’s Council on Physical Fitness and Health; w. Eleven at-large members, including a representative of local education, religious organization, older adults, and non-profit organizations. Section 3. Functions a. The Governor’s Task Force shall meet regularly at the call of the Chair. b. The Governor’s Task Force will advise the State Health Director and the Secretary of the Department of Health and Human Services on policies, programs and resources needed to improve the public’s health in North Carolina. c. The Governor's Task Force shall have the responsibility to periodically review the state health objectives, make amendments as necessary, and report progress toward achieving the objectives to the Governor, Secretary of DHHS, and the State Health Director. d. The Governor’s Task Force shall have the power to designate local Healthy Carolinians Task Forces, comprised of representatives of public and private organizations, and community members and leaders, which support the goals of the Governor's Task Force. e. The Governor’s Task Force shall provide encouragement and guidance to communities establishing their own local groups to accomplish the objectives developed by the Governor’s Task Force. f. The Governor's Task Force shall review the Preventative Health and Health Services Block Grant annually and carry out the necessary functions of the advisory committee as required by federal law. Section 4. Administration a. Administrative support for the Governor’s Task Force shall be provided by the Department of Health and Human Services. b. It shall be the responsibility of each Cabinet department to make every reasonable effort to cooperate with the Governor’s Task Force in carrying out the provisions of this Order. This Executive Order is effective immediately and shall remain in effect until rescinded. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in Raleigh, this the 27th day of September 2005. __________________________________________ Michael F. Easley Governor ATTEST: __________________________________________ Elaine F. Marshall Secretary of State IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 667 Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of Rules for publication. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SERVICES COMMISSION NOTICE OF DATE FOR PUBLIC HEARING Social Services Commission - Contract Services Rules: 10A NCAC 67B .0201-.0204; .0301-.0302; .0401-.0404; and .0501-.0505, originally noticed in NC Register Volume 20, Issue 05, pages 244-246. Date: November 16, 2005 Time: 10:00 a.m. Location: Albemarle Building, 8th floor (Conf. Room 832), 325 N. Salisbury St., Raleigh, NC IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 668 U.S. Department of Justice Civil Rights Division JKT:JBG:ALP:maf Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., NW 2005-1255 Washington, D.C. 20530 September 29, 2005 Karen M. McDonald. Esq. City Attorney 433 Hay Street Fayetteville, NC 28302 Mr. Jerry Wilson Reapportionment Group 2000 3009 Rainbow Drive, Suite 143 Decatur, Georgia 30034 Dear Ms. McDonald and Mr. Wilson: This refers to the annexation (Ordinance No. 2004-09-469) and its designation to District 7 of the City of Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on August 5, 2005. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. Procedures for the Administration of Section 5 of the Voting Rights Act (28 C.F.R. 51.41). Sincerely, John Tanner Chief, Voting Section IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 669 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated May 1, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 455 ) Fredy Barahona, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of State Treasurer, on Tuesday, February 8, 2005 Pursuant to the petition of Fredy Barahona (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue on February 24, 2004, regarding the proposed assessment of unauthorized substance tax dated May 1, 2003. The Taxpayer protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing on December 16, 2003, the Assistant Secretary of Revenue issued final decisions that sustained the proposed assessments. Form the Assistant Secretary's Final Decision in Docket Number 2003-242, the Taxpayer filed a petition for administrative review with the Board pursuant to N.C. Gen. Stat. 105-241.2. ISSUES The issues considered by the Board on administrative review of this matter are stated as follows: 1. Did the Taxpayer have actual and/or constructive possession of an unauthorized controlled substance without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary as provided in N.C. Gen. Stat. 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact and entered by the Assistant Secretary in his decision regarding this matter. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. 105-241(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decision, concluded that the findings of fact made by the Assistant Secretary were supported IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 670 by competent evidence in the record; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision be confirmed in every respect. Made and entered into this 29th day of April 2005. TAX REVIEW BOARD Signature_________________________________ Richard H. Moore, Chairman State Treasurer Signature_________________________________ Jo Anne Sanford, Member Chair, Utilities Commission Signature_________________________________ Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 671 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Additional ) Income Tax for the Taxable Years 2000 ) and 2001 by the Secretary of Revenue ) of North Carolina ) ) ADMINISTRATIVE DECISION Vs. ) Number: 456 ) Michael H. Finneran, ) Taxpayer ) This Matter is before the Regular Tax Review Board (hereinafter "Regular Board") upon petition for administrative review filed by Michael H. Finneran (hereinafter "Taxpayer") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessments of additional individual income tax for taxable years 2000 and 2001. Pursuant to N.C. Gen. Stat. 105-241.1, assessments proposing additional tax, penalty and accrued interest for taxable years 2000 and 2001 were mailed to the Taxpayer on September 30, 2002. The Taxpayer protested the assessments and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on November 4, 2003, that sustained the proposed assessments against the Taxpayer for tax years 2000 and 2001. Pursuant to N.C. Gen. Stat. 105- 241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer's petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for administrative review be and is herby Dismissed. Made and entered into this 29th day of April 2005. TAX REVIEW BOARD Signature_________________________________ Richard H. Moore, Chairman State Treasurer Signature_________________________________ Jo Anne Sanford, Member Chair, Utilities Commission Signature_________________________________ Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 672 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 26, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 457 ) Daniel G. Hamamoto, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Tuesday, February 8, 2005 pursuant to the petition of Daniel G. Hamamoto (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue on October 15, 2003, regarding the proposed assessment of unauthorized substance tax dated February 26, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing on July 22, 2003, the Assistant Secretary of Revenue entered a Final Decision that sustained the proposed assessment. From the Assistant Secretary decision, the Taxpayer filed a notice of intent and petition for administrative with the Board pursuant to N.C. Gen. Stat. § 105-241.2. ISSUES The issues considered by the Board on administrative review of this matter are stated as follows: 1. Did the Taxpayer have actual and/or constructive possession of an unauthorized controlled substance without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary as provided in N.C. Gen. Stat. § 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact entered by the Assistant Secretary in his decision regarding this appeal. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this appeal. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decisions, concluded that the findings of fact made by the Assistant Secretary were supported IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 673 by competent evidence in the record; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision be confirmed in every respect. Made and entered into the 29th day of April 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 674 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 11, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 458 ) Theodore Franklin Cheek, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Tuesday, February 8, 2005 pursuant to the petition of Theodore Franklin Cheek (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue on November 18, 2003, regarding the proposed assessment of unauthorized substance tax dated February 11, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing on July 22, 2003, the Assistant Secretary of Revenue entered a Final Decision that sustained the proposed assessment. From the Assistant Secretary decision, the Taxpayer filed a notice of intent and petition for administrative with the Board pursuant to N.C. Gen. Stat. § 105-241.2. ISSUES The issues considered by the Board on administrative review of this matter are stated as follows: 1. Did the Taxpayer have actual and/or constructive possession of an unauthorized controlled substance without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary at provided in N.C. Gen. Stat. § 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact entered by the Assistant Secretary in his decision regarding this appeal. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this appeal. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decisions, concluded that the findings of fact made by the Assistant Secretary were supported IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 675 by competent evidence in the record; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision be confirmed in every respect. Made and entered into the 29th day of April 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 676 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Individual ) Income Tax for taxable years 2001 and ) 2002 by the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 459 ) Larry A. and Geneva M. Gillus, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Tuesday, February 8, 2005 pursuant to the petition of Larry A. and Geneva M. Gillus (hereinafter "Taxpayers") for administrative review of the final decision entered by the Assistant Secretary of Revenue on November 13 2003, regarding the proposed assessment of individual income tax, plus penalties and interest. The Taxpayers protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing on August 21, 2003, the Assistant Secretary of Revenue issued his decision and ruled that the proposed tax assessment, as corrected, for taxable year 2001 and the proposed assessment for tax year 2002 were lawful and proper and sustained the tax, penalties and interest in this matter. From the Assistant Secretary's Final Decision, the Taxpayers filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. ISSUES The Board considered the following issues in this matter: 1. Whether the Taxpayers were residents of North Carolina for income tax purposes during the entire taxable years of 2001 and 2002. 2. Whether the assessments for additional tax, penalties and interest proposed against the Taxpayers for taxable years 2001 and 2002 were lawful and proper. EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary as provided in N.C. Gen. Stat. § 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact entered by the Assistant Secretary in his decision regarding this matter. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 677 The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decision, concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record as to the proposed tax and interest assessed in this matter; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact as to the proposed tax and interest assessed in this matter; therefore the decision of the Assistant Secretary sustaining the proposed tax and interest is sustained. Because the failure of the Taxpayers to pay the income taxes assessed in this matter was not the result of an intentional or negligent disregard of the law, the Board determines that the Taxpayers acted in good faith and finds reasonable cause to waive the penalties that were imposed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision, as modified herein is confirmed. Made and entered into the 29th day of April 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 678 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated August 13, 2002 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 460 ) James Patrick Rusk, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of James Patrick Rusk (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated August 13, 2002. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter and having reviewed the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were not supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were not supported by the findings of fact, and that the decision by the Assistant Secretary was not supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is reversed in every respect. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 679 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 4, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 461 ) William Alexander Richards, Jr., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of William Alexander Richards, Jr. (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated February 4, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter, and having considered the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were fully supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of fact, and that the decision by the Assistant Secretary was fully supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 680 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated May 14, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 462 ) Jashua Dean Cumbie, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of Jashua Dean Cumbie (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated May 14, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter, and having reviewed the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were fully supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of fact, and that the final decision by the Assistant Secretary was fully supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 681 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Additional ) Income Tax for the Taxable Years 1998 ) through 2000 by the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 463 ) Michael J. Williams, ) Taxpayer ) THIS MATTER is before the Regular Tax Review Board (hereinafter "Regular Board") upon petition for administrative review filed by Michael J. Williams (hereinafter "Taxpayer") regarding the final decision of Eugene J. Cella, Assistant Secretary of Revenue (hereinafter "Assistant Secretary"), entered on February 17, 2004, sustaining the proposed assessment of additional income tax for taxable years 1998 through 2000. Pursuant to G.S. 105-241.1, the Department of Revenue mailed the Taxpayer Notices of Individual Income Tax Assessments, assessing tax, penalties and accrued interest for the taxable years 1989 through 2000. The Taxpayer objected to the assessments and filed a request for hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision on February 17, 2004, sustaining the proposed assessments. Pursuant to G.S. 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's Final Decision with the Tax Review Board. Pursuant to G.S. 105-241.2(c), the Board has examined the petition, and the records and documents transmitted by the Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly deemed by the Courts to be lacking in legal merit. Thus, the Board concludes that Taxpayer's petition is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for review be and is hereby Dismissed. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 682 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated August 13, 2002 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 464 ) Jeffery Lynn Prince, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of Jeffrey Lynn Prince (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue sustaining the proposed assessment of unauthorized substance tax dated August 13, 2002. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter concluded that the findings of fact made by the Assistant Secretary were fully supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of fact, and that the final decision by the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 25th day of July 2005. TAX REVIEW BOARD Signature Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 683 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Sales and ) Use Tax for the period of May 1, 2000 through ) March 31, 2003 by the Secretary ) of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 465 ) Docket Number 2003-441 Greene Bros. Well and Pump, W.T., Inc., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of Greene Bros. Well and Pump, W.T., Inc. (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of sales and use tax for the period of May 1, 2000 through March 31, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter, and having considered the petition and the Assistant Secretary's final decision, concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence of record, and that the conclusions of law made by the Assistant Secretary were supported by the findings of fact. The Assistant Secretary's final decision was supported by the conclusions of law. Because the Taxpayer's failure to pay the tax assessed in this matter was not the result of an intentional or negligent disregard of the law, the Board, in its discretion, deems that the Taxpayer acted in good faith and finds reasonable cause to waive the penalties that were imposed. IT IS THEREFORE ORDERED that the Assistant Secretary's final decision, as modified herein, is confirmed. Made and entered into the 25th day of July 2005. TAX REVIEW BOARD Signature Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 684 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission of MH/DD/SAS intends to adopt the rules cited as 10A NCAC 27G .1701-.1708 and amend the rule cited as 10A NCAC 27G .1301. Proposed Effective Date: March 1, 2006 Public Hearing: Date: January 18, 2006 Time: 2:00 p.m. Location: Holiday Inn(North)-2805 Highwoods Blvd., Raleigh, NC 27604 Reason for Proposed Action: The proposed amendment of 10A NCAC 27G .1301 and the adoption of 10A NCAC 27G .1700 is necessary to strengthen current residential treatment facility licensure rules. The proposed rule changes represent the first part of comprehensive plan to revamp the child residential treatment service continuum. The proposed rules add additional safeguards for children and adolescents and establish higher standards for providers of residential treatment services. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objection and the clearly identified portion of the rule to which the objection pertains, may be submitted in writing to Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018. Comments may be submitted to: Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018, phone (919)715- 2780, fax (919)733-1221 or email cindy.kornegay@ncmail.net. Comment period ends: January 18, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State – 10A NCAC 27G .1701-.1708 Local – 10A NCAC 27G .1701-.1708 Substantive (>$3,000,000) – 10A NCAC 27G .1701- .1708 None – 10A NCAC 27G .1301 CHAPTER 27 – MENTAL HEALTH: COMMUNITY FACILITIES AND SERVICES SUBCHAPTER 27G - RULES FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES, AND SUBSTANCE ABUSE FACILITIES AND SERVICES SECTION .1300 - RESIDENTIAL TREATMENT FOR CHILDREN OR ADOLESCENTS 10A NCAC 27G .1301 SCOPE (a) The rules of this Section apply only to a residential treatment facility that provides residential treatment, level II, program type service. (b) A residential treatment facility providing residential treatment, level III service, shall be licensed as set forth in 10A NCAC 27G .1700. (c) A residential treatment facility for children and adolescents is a free-standing residential facility which provides a structured living environment within a system of care approach for children and or adolescents who have a primary diagnosis of mental illness or emotional disturbance and who may also have other disabilities. disabilities and for whom removal from home is essential to facilitate treatment. (d) Services shall be designed to address the functioning level of the child or adolescent and include training in self-control, communication skills, social skills, and recreational skills. Some children Children or adolescents may be able to may receive services in a day treatment facility, have a job placement, or attend public school. schools; for others, special education services may need to be offered within the residential setting. (e)(c) Services shall be designed to support the child or adolescent in gaining the skills necessary to return to the natural, or therapeutic home setting. The target populations to be served in a residential setting are children and adolescents for whom removal from home to a community-based residential setting is essential to facilitate treatment. Residential treatment is targeted toward children and adolescents who no longer meet criteria for inpatient psychiatric services or intensive residential treatment and need a step-down placement in the community, or PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 685 those who have been placed in non-residential community setting and need a more intensive treatment program. (f)(d) Treatment, services, and discharge plans provided by. The residential treatment facilities facility shall coordinate be coordinated with other individuals and agencies within the client's local system of care. Authority G.S. 122C-26; 143B-147. SECTION .1700 - RESIDENTIAL TREATMENT STAFF SECURE FOR CHILDREN OR ADOLESCENTS 10A NCAC 27G .1701 SCOPE (a) A residential treatment staff secure facility for children or adolescents is one that is a free-standing residential facility that provides intensive, active therapeutic treatment and interventions within a system of care approach. It shall not be the primary residence of an individual who is not a client of the facility. (b) Staff secure means staff are required to be awake during client sleep hours and supervision shall be continuous as set forth in Rule .1704 of this Section. (c) The population served shall be children or adolescents who have a principal diagnosis of mental illness, emotional disturbance or substance-related disorders; and may also have co-occurring disorders including developmental disabilities. These children or adolescents shall not meet criteria for inpatient psychiatric services. (d) The children or adolescents served shall require the following: (1) removal from home to a community-based residential setting in order to facilitate treatment; and (2) treatment in a staff secure setting. (e) Services shall be designed to: (1) include individualized supervision and structure of daily living; (2) minimize the occurrence of behaviors related to functional deficits; (3) ensure safety and deescalate out of control behaviors including frequent crisis management with or without physical restraint; (4) assist the child or adolescent in the acquisition of adaptive functioning in self-control, communication, social and recreational skills; and (5) support the child or adolescent in gaining the skills needed to step-down to a less intensive treatment setting. (f) The residential treatment staff secure facility shall coordinate with other individuals and agencies within the child or adolescent's system of care. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1702 REQUIREMENTS OF QUALIFIED PROFESSIONALS (a) Each facility shall utilize at least one direct care staff who meets the requirements of a qualified professional as set forth in 10A NCAC 27G .0104(18). In addition, this qualified professional shall have two years of direct client care experience. (b) For each facility of five or less beds: (1) the qualified professional specified in Paragraph (a) of this Rule shall perform clinical and administrative responsibilities a minimum of 10 hours each week; and (2) 70% of the time shall occur when children or adolescents are awake and present in the facility. (c) For each facility of six or more beds: (1) the qualified professional specified in Paragraph (a) of this Rule shall perform clinical and administrative responsibilities a minimum of 32 hours each week; and (2) 70% of the time shall occur when children or adolescents are awake and present in the facility. (d) The governing body responsible for each facility shall develop and implement written policies that specify the clinical and administrative responsibilities of its qualified professional(s). At a minimum these policies shall include: (1) supervision of its associate professional(s) as set forth in Rule .1703 of this Section; (2) oversight of emergencies; (3) provision of direct psychoeducational services to children or adolescents; (4) participation in treatment planning meetings; (5) coordination of each child or adolescent's treatment plan; and (6) provision of basic case management functions. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1703 REQUIREMENTS FOR ASSOCIATE PROFESSIONALS (a) In addition to the qualified professional specified in Rule .1702 of this Section, each facility shall have at least one full-time direct care staff who meets or exceeds the requirements of an associate professional as set forth in 10A NCAC 27G .0104(1). (b) The governing body responsible for each facility shall develop and implement written policies that specify the responsibilities of its associate professional(s). At a minimum these policies shall address the following: (1) management of the day to day operations of the facility; (2) supervision of paraprofessionals regarding responsibilities related to the implementation of each child or adolescent's treatment plan; (3) participation in service planning meetings. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1704 MINIMUM STAFFING PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 686 REQUIREMENTS (a) One direct care staff shall be present in the facility at all times when children or adolescents are away from the facility. (b) A qualified professional shall be available by telephone or page. An additional direct care staff shall be able to reach the facility within 30 minute at all times. (c) The minimum number of direct care staff required when children or adolescents are present and awake is as follows: (1) two direct care staff shall be present for one, two, three or four children or adolescents; (2) three direct care staff shall be present for five, six, seven or eight children or adolescents; and (3) four direct care staff shall be present for 9, 10, 11 or 12 children or adolescents. (d) The minimum number of direct care staff during child or adolescent sleep hours is as follows: (1) two direct care staff shall be present and awake for eight or less children or adolescents; and (2) three direct care staff shall be present of which two shall be awake and the third may be asleep for 9, 10, 11 or 12 children or adolescents. (e) In addition to the minimum number of direct care staff set forth in Paragraphs (a)-(d) of this Rule, more direct care staff shall be required in the facility based on the child or adolescent's individual needs as specified in the treatment plan. (f) Each facility shall be responsible for insuring supervision of children or adolescents when they are away from the facility in accordance with the child or adolescent's individual strengths and needs as specified in the treatment plan. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1705 REQUIREMENTS OF LICENSED PROFESSIONALS (a) Face to face clinical consultation shall be provided in each facility at least four hours a week by a licensed professional. For purposes of this Rule, licensed professional means an individual who holds a license or provisional license issued by the governing board regulating a human service profession in the State of North Carolina. For substance-related disorders this shall include a certified Clinical Addiction Specialist or a Clinical Certified Supervisor. (b) The consultation specified in Paragraph (a) of this Rule shall include: (1) clinical supervision of the qualified professional specified in Rule .1702 of this Section; (2) individual, group or family therapy services; and (3) involvement in child or adolescent specific treatment plans or overall program issues. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1706 OPERATIONS (a) Each facility shall serve no more than a total of 12 children and adolescents. (b) Family members or other legally responsible persons shall be involved in development of plans in order to assure a smooth transition to a less restrictive setting. (c) The residential treatment staff secure facility shall coordinate with the local education agency to ensure that the child's educational needs are met as identified in the child's education plan and the treatment plan. Most of the children will be able to attend school; for others, the facility will coordinate services across settings such as alternative learning programs, day treatment, or a job placement. (d) Psychiatric consultation shall be available as needed for each child or adolescent. (e) If an adolescent has his 18th birthday while receiving treatment in the facility, he may remain for six months or until the end of the state fiscal year, whichever is longer. (f) Each child or adolescent shall be entitled to age-appropriate personal belongings unless such entitlement is counter-indicated in the treatment plan. (g) Each facility shall operate 24 hours per day, seven days per week, and each day of the year. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1707 PERSONS PERMITTED IN THE FACILITY (a) Only admitted children or adolescents, legally responsible persons, staff, other family and friends identified in the treatment plan, and others permitted by the facility director shall be permitted on the premises. (b) Individuals other than those specified in Paragraph (a) of this Rule are prohibited from entering the facility except in instances of emergency or as permitted by law. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1708 TRANSFER OR DISCHARGE (a) The purpose of this Rule is to address the transfer or discharge of a child or adolescent from the facility. (b) A child or adolescent shall not be discharged or transferred from a facility, except in case of emergency, without the advance written notification of the treatment team, including the legally responsible person. For purposes of this Rule, treatment team means the same as the existing child and family team or other involved persons as set forth in Paragraph (c) of this Rule. (c) The facility shall meet with existing child and family teams or other involved persons including the parent(s) or legal guardian, area authority or county program representative(s) and other representatives involved in the care and treatment of the child or adolescent, including local Department of Social Services, Local Education Agency and criminal justice agency, to make service planning decisions prior to the transfer or discharge of the child or adolescent from the facility. (d) In case of an emergency, the facility shall notify the treatment team including the legally responsible person of the transfer or discharge of the child or adolescent as soon as the emergency situation is stabilized. PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 687 (e) In case of an emergency, notification may be by telephone. A service planning meeting as set forth in Paragraph (c) of this Rule shall be held within five business days of an emergency transfer or discharge. Authority G.S. 122C-26; 143B-147. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for DMH/DD/SAS intends to adopt the rules cited as 10A NCAC 27G .1801-.1806. Proposed Effective Date: April 1, 2006 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): A person may demand a public hearing on the proposed rules by submitting a request in writing to Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018, by November 16, 2005. Reason for Proposed Action: The proposed adoption is necessary to establish a new licensure category for Intensive Residential Treatment for Children or Adolescents. The proposed rule changes represent a part of a comprehensive plan to revamp the child residential treatment service continuum. The proposed rules establish additional safeguards for children and adolescents and establish higher standards for providers of intensive residential treatment services. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objection and the clearly identified portion of the rule to which the objection pertains, may be submitted in writing to Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018. Comments may be submitted to: Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018, Phone (919)715- 2780, fax (919)733-1221 or email cindy.kornegay@ncmail.net. Comment period ends: January 3, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None CHAPTER 27 – MENTAL HEALTH: COMMUNITY FACILITIES AND SERVICES SUBCHAPTER 27G - RULES FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES, AND SUBSTANCE ABUSE FACILITIES AND SERVICES SECTION .1800 – INTENSIVE RESIDENTIAL TREATMENT FOR CHILDREN OR ADOLESCENTS 10A NCAC 27G .1801 SCOPE (a) An intensive residential treatment facility is one that is a 24-hour residential facility that provides a structured living environment within a system of care approach for children or adolescents whose needs require more intensive treatment and supervision than would be available in a residential treatment staff secure facility. (b) It shall not be the primary residence of an individual who is not a client of the facility. (c) The population served shall be children or adolescents who have a principal diagnosis of mental illness, severe emotional and behavioral disorders or substance-related disorders; and may also have co-occurring disorders including developmental disabilities. These children or adolescents shall not meet criteria for acute inpatient psychiatric services. (d) The children or adolescents served shall require the following: (1) removal from home to an intensive integrated treatment setting; and (2) treatment in a locked setting. (e) Services shall be designed to: (1) assist in the development of symptom and behavior management skills; (2) include intensive, frequent and pre-planned crisis management; (3) provide containment and safety from potentially harmful or destructive behaviors; (4) promote involvement in regular productive activity, such as school or work; and (5) support the child or adolescent in gaining the skills needed for reintegration into community living. (f) The intensive residential treatment facility shall coordinate with other individuals and agencies within the child or adolescent's system of care. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1802 REQUIREMENTS OF LICENSED PROFESSIONALS (a) Each facility shall have at least one full-time a licensed professional. For purposes of this Rule, licensed professional means an individual who holds a license or provisional license PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 688 issued by the governing board regulating a human service profession in the State of North Carolina. (b) The governing body responsible for each facility shall develop and implement written policies that specify the clinical and administrative responsibilities of its licensed professional(s). At a minimum these policies shall include: (1) supervision of direct care staff; (2) oversight of emergencies; (3) provision of direct clinical psychoeducational services to children, adolescents or families; (4) participation in treatment planning meetings; and (5) coordination of each child or adolescent's treatment plan. (c) Licensed professionals shall meet the Provider Requirement and Supervision standards as set forth in the Division of Medical Assistance Clinical Policy Number 8D-2, Intensive Residential Treatment Services, including subsequent amendments and editions. A copy of Clinical Policy 8D-2 is available at no cost from the Division of Medical Assistance website at http://www.dhhs.state.nc.us/dma/. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1803 REQUIREMENTS OF QUALIFIED PROFESSIONALS (a) Each facility shall have at least one full-time qualified professional as set forth in 10A NCAC 27G .0104(18). In addition, the qualified professional shall have two years of direct client care experience. (b) For each facility: (1) a qualified professional shall perform clinical and administrative responsibilities a minimum of 40 hours each week; and (2) 75% shall occur when children or adolescents are awake and present in the facility. (c) The governing body responsible for each facility shall develop and implement written policies that specify the clinical and administrative responsibilities of it's qualified professional(s). At a minimum these policies shall include: (1) management of the day to day operations of the facility; (2) supervision of paraprofessionals regarding responsibilities related to the implementation of each child or adolescent's treatment plan; (3) participation in treatment planning meetings; and (4) provision of basic case management functions. (d) The qualified professional shall meet the Provider Requirement and Supervision standards as set forth in the Division of Medical Assistance Clinical Policy Number 8D-2, Intensive Residential Treatment Services, including subsequent amendments and editions. A copy of Clinical Policy 8D-2 is available at no cost from the Division of Medical Assistance website at http://www.dhhs.state.nc.us/dma/. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1804 MINIMUM STAFFING REQUIREMENTS (a) One direct care staff is required to be present in the facility at all times when children or adolescents are away from the facility. (b) An additional on-call direct care staff shall be readily available by telephone or page and able to reach the facility within 30 minutes of the call or page. (c) If children or adolescents are cared for in separate units/buildings, the minimum staffing numbers shall apply to each unit/building. (d) The minimum number of direct care staff required when children or adolescents are present and awake is as follows: (1) three direct care staff shall be present for five or six children or adolescents; (2) four direct care staff shall be present for seven, eight or nine children or adolescents; and (3) five direct care staff shall be present for 10, 11 or 12 children or adolescents. (e) During child or adolescent sleep hours three direct care staff be present of which two shall be awake and the third may be asleep. (f) Direct care staff shall meet the Provider Requirement and Supervision standards as set forth in the Division of Medical Assistance Clinical Policy Number 8D-2, Intensive Residential Treatment Services, including subsequent amendments and editions. A copy of Clinical Policy 8D-2 is available at no cost from the Division of Medical Assistance website at http://www.dhhs.state.nc.us/dma/. (g) In addition to the minimum number of direct care staff set forth in Paragraphs (a)-(e) of this Rule, more direct care staff may be required in the facility based on the child or adolescent's individual needs as specified in the treatment plan. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1805 OPERATIONS (a) Each facility shall serve no more than 12 children or adolescents. (b) Family members or other legally responsible persons shall be involved in development of plans in order to assure a smooth transition to a less restrictive setting. (c) Educational services within the facility are arranged and designed to maintain the educational and intellectual development of the child or adolescent. Treatment staff shall coordinate with the local education agency to ensure that the child or adolescent's educational needs are met as identified in the education plan. (d) Psychiatric consultation shall be available as needed for each child or adolescent. (e) If an adolescent has his 18th birthday while receiving treatment in the facility, he may remain for six months or until the end of the state fiscal year, whichever is longer. (f) Each child or adolescent shall be entitled to age-appropriate personal belongings unless such entitlement is counter-indicated in the treatment plan. (g) Each facility shall operate 24 hours per day, seven days per week, and each day of the year. PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 689 Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1806 TRANSFER OR DISCHARGE (a) The purpose of this Rule is to address the transfer or discharge of a child or adolescent from the facility. (b) A child or adolescent shall not be discharged or transferred from a facility, except in case of emergency, without the advance written notification of the treatment team, including the legally responsible person. For purposes of this Rule, treatment team means the same as the existing child and family team or other involved persons as set forth in Paragraph (c) of this Rule. (c) The facility shall meet with existing child and family teams or other involved persons including the parent(s) or legal guardian, area authority or county program representative(s) and other representatives involved in the care and treatment of the child or adolescent, including local Department of Social Services, Local Education Agency and criminal justice agency, to make service planning decisions prior to the transfer or discharge of the child or adolescent from the facility. (d) In case of an emergency, the facility shall notify the treatment team including the legally responsible person of the transfer or discharge of the child or adolescent as soon as the emergency situation is stabilized. (e) In case of an emergency, notification may be by telephone. A service planning meeting as set forth in Paragraph (c) of this Rule shall be held within five business days of an emergency transfer or discharge. Authority G.S. 122C-26; 143B-147. TITLE 12 – DEPARTMENT OF JUSTICE Notice is hereby given in accordance with G.S. 150B-21.2 that the Attorney General intends to adopt the rules cited as 12 NCAC 02J .0101-.0104, .0201-.0211, .0301-.0304. Proposed Effective Date: March 1, 2006 Public Hearing: Date: January 10, 2006 Time: 9:00 a.m. Location: Old Education Building, Room G-22, 114 W. Edenton Street, Raleigh, NC Reason for Proposed Action: Due to ratification of Senate Bill 527, the Campus Police Act, in July 2005, the rules governing Campus Police, which were previously combined with Company and Railroad Police, have been moved to a separate Subchapter within Title 12, Chapter 02. These new rules also reflect new requirements within the Campus Police Program. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objections, and the clearly identified portion of the rule to which the objection pertains, must be submitted in writing to Vickie Huskey, Company Police Program Administrator, Department of Justice, 114 W. Edenton Street, Raleigh, NC 27602. Comments may be submitted to: Vickie Huskey, Company Police Program Administrator, Department of Justice, 114 W. Edenton Street, Raleigh, NC 27602, phone 919-716-6470, fax 919-716-6752, email vhuskey@ncdoj.com. Comment period ends: January 10, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None CHAPTER 2 - OFFICE OF THE ATTORNEY GENERAL SUBCHAPTER 02J- CAMPUS POLICE SECTION .0100 - GENERAL PROVISIONS 12 NCAC 02J .0101 LOCATION The administrative office for the commissioning of campus police officers and the certification of campus police agencies is located in the office of the Criminal Justice Standards Division. Correspondence shall be directed to: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 Authority G.S. 74G; 143A-54. 12 NCAC 02J .0102 PURPOSES The purposes of the Attorney General's Office in granting campus police commissions are: (1) to allow those private institutions of higher education described in G.S. 74G-2 to apply for certification as a campus police agency; (2) to allow those private institutions of higher education described in G.S. 74G-2 to employ PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 690 individuals commissioned as campus police officers pursuant to G.S. 74G-6; and (3) to ensure the integrity, proficiency, and competence of campus police officers and establishing minimum standards for obtaining and maintaining both campus police officer commissions and campus police agency certifications. Authority G.S. 74G-2; 74G-6. 12 NCAC 02J .0103 ADMINISTRATIVE STAFF The administrative staff responsible for campus police commissions and campus police agency certifications consists of assigned personnel from the Criminal Justice Standards Division. The duties of this staff are to carry out the policies of the law and regulations herein and to actively police the individuals already commissioned as campus police officers to assure compliance with the law in all respects. Authority G.S. 74G-4. 12 NCAC 02J .0104 DEFINITIONS In addition to any definitions set forth in G.S. 74G, the following definitions will apply throughout this Chapter, unless the context clearly defines otherwise: (1) "Agency Records" means those records specified pursuant to this Subchapter and that documentation required to be maintained and compiled under the requirements of G.S. 74G. (2) "Badge" means a shield bearing the title of "Campus Police" and the name of the certified campus police agency and the officer's issued identification card provided by the Attorney General which identifies the individual as a campus police officer. (3) "Calendar Year" shall be defined solely for the purpose of in-service training as a period beginning January 1 and ending on December 31. (4) "Certification" means: (a) campus police officers - the authority granted by the North Carolina Criminal Justice Education and Training Standards Commission to those individuals who meet the minimum requirements as a sworn law enforcement officer pursuant to Title 12, Chapter 09B of the North Carolina Administrative Code. (b) campus police agency - the authority granted by the Attorney General to those Campus Police agencies who meet the minimum requirements established for such agencies pursuant to this Chapter. (5) "Commission" as it pertains to criminal offenses, means a finding by an administrative body, pursuant to the provisions of G.S. 150B, that a person performed the acts necessary to satisfy the elements of a specified criminal offense. (6) "Commissioned Campus Police Officer" means those individuals authorized by the Campus Police Administrator to exercise all law enforcement powers within the constraints provided in G.S. 74G and classified as a campus police officer pursuant to G.S. 74G-6(b). (7) "Campus Police Administrator" means the individual who serves as the head of the administrative staff to whom the Attorney General designated the authority to act upon any campus police agency commission or campus police agency certification pursuant to the provisions of G.S. 74G and the rules promulgated thereunder. Said administrator is responsible for the individual officer's or agency's compliance with the Campus Police Act. (8) "Campus Police Agency" means any public or private campus as defined by G.S. 74G-2(b). (9) "Conviction or convicted" means and includes, for the purposes of this Chapter, the entry of: (a) a plea of guilty; (b) a verdict or finding of guilty by a jury, judge, magistrate, or other duly constituted, established, and recognized adjudicating body, tribunal, or official, either civilian or military; or (c) a plea of no contest, nolo contendere, or the equivalent. (10) "Department Head" means the chief administrator of any campus police agency. The Department Head is to include the Campus Police Chief or a designee formally appointed in writing as the Department Head, and who shall hold and maintain a commission as a campus police officer. (11) "Felony" means any offense designated a felony by the laws, statutes, or ordinances of the jurisdiction in which the offense occurred. (12) "High School" means a school accredited as a high school by: (a) the Department or Board of Education of the state in which the high school is located; or (b) the recognized regional accrediting body; or (c) the state university of the state in which the high school is located. (13) "In-Service Training" means any and all training as prescribed in 12 NCAC 02J .0201 which must be satisfactorily completed by campus police officers, in accordance with the standards established therein, during each PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 691 full calendar year of commissioning as a campus police officer. (14) "Insurance Carrier" means any entity, corporation, campus or professional association as defined in G.S. 58 and who is authorized by the North Carolina Commissioner of Insurance to do business in North Carolina as an insurance carrier or underwriter. (15) "Misdemeanor" means those criminal offenses not classified under the laws, statutes, or ordinances as felonies. Misdemeanor offenses are classified by the Criminal Justice Education and Training Standards Commission. (a) "Class A Misdemeanor" is defined in 12 NCAC 09A .0103(22)(a). (b) "Class B Misdemeanor" is defined in 12 NCAC 09A .0103(22)(b). (16) "On Duty" means that period of time which the commissioned campus police officer is being compensated for his or her services by the officer's employer and ending once the officer's compensation for his duties terminates. Authority G.S. 74G. SECTION .0200 - COMMISSIONING 12 NCAC 02J .0201 MINIMUM STANDARDS FOR CAMPUS POLICE OFFICERS Every campus police officer must meet the following requirements to obtain and maintain a campus police commission: (1) be a citizen of the United States; (2) be a high school graduate or have passed the General Educational Development Test indicating high school equivalency. A specific exception to this educational requirement is granted to: (a) an applicant who was the holder of a valid campus police commission on June 30, 1972; or (b) an applicant properly certified as a law enforcement officer by the Criminal Justice Education and Training Standards Commission on March 14, 1973; In either case, the exception will not be applicable if the applicant has had more than a 12 month break in service; (3) have attained a score of not less than 80 percent on a written examination of basic knowledge of laws of arrest, search, and investigation, and of these Rules to be administered by a representative of the North Carolina Department of Justice; Note: All examination questions will be based on the book Arrest, Search, and Investigation as published by and available from the Institute of Government, the University of North Carolina at Chapel Hill, Chapel Hill, North Carolina 27514, and these Rules. Applicants will be advised in writing of test dates and sites at least five days prior to the examination. In the event an applicant fails to successfully complete the examination, only one re-test will be allowed. Upon an applicant's failure to successfully complete the second test, the applicant must successfully complete accredited Basic Law Enforcement Training coursework prior to re-testing; (4) meet the minimum standards for criminal justice officers established by the North Carolina Criminal Justice Education and Training Standards Commission, appearing in Title 12, Chapter 09 of the North Carolina Administrative Code; which Standards are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced material; (5) applicants who do not hold general certification as a law enforcement officer issued by the Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission, must submit to and successfully complete a polygraph examination administered by the State Bureau of Investigation; (6) be at least 20 years of age; (7) have produced a negative result on a drug screen administered according to the following specifications: (a) the drug screen shall be a urine test consisting of an initial screening test using an immunoassay method and a confirmatory test on an initial positive test result using a gas chromatography mass spectrometry (GC/MS) or other reliable initial and confirmatory tests as may, from time to time, be authorized or mandated by the Department of Health and Human Services for Federal Workplace Drug Testing Programs; (b) a chain of custody shall be maintained on the specimen from collection to the eventual discarding of the specimen; (c) the drugs whose use shall be tested for shall include at least cannabis, cocaine, phencyclidine (PCP), opiates and amphetamines or their metabolites; (d) the test threshold values established by the Department of Health and Human Services for Federal Workplace Drug Testing Programs are hereby incorporated by reference, and shall automatically PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 692 include any later amendments and editions of the referenced material; (e) the test conducted shall be not more than 60 days old, calculated from the time when the laboratory reports the results to the date of employment; (f) the laboratory conducting the test must be certified for federal workplace drug testing programs, and must adhere to applicable federal rules, regulations and guidelines pertaining to the handling, testing, storage and preservation of samples, except that individual agencies may specify other drugs to be tested for in addition to those drugs set out in Subitem (7)(c) of this Rule; and (g) every agency head shall be responsible for making adequate arrangements for the services of a Medical Review officer (MRO) for the purpose of review of drug tests reported by the laboratory and such officer shall be a licensed physician; (8) notify the Campus Police Administrator in writing of all criminal offenses for which the officer is arrested, pleads no contest, pleads guilty, or is found guilty of. This shall include all criminal offenses except minor traffic offenses and shall specifically include any offense of Driving Under the Influence (DUI) or Driving While Impaired (DWI). A minor traffic offense is defined, for purposes of this Item, as an offense where the maximum punishment allowable is 60 days or less. The notifications required must specify the nature of the offense, the court in which the case was handled and the date of the conviction. The notifications must be received by the Campus Police Administrator within 30 days of the date of the case disposition. Applicants and officers required to notify the Campus Police Administrator under this Item shall also make the same notification to their Department Head within 20 days of the date the case was disposed of in court. However, the notification to the Campus Police Administrator does not excuse the officer from making an independent notification otherwise required by either the Criminal Justice Education and Training Standards Commission or the Sheriffs' Education and Training Standards Commission. The notifications required by this section shall be required while the application is pending as well as, subsequent to a commission being issued; (9) be of good moral character as referred to in G.S. 17C-10(c); (10) not having committed or been convicted of a crime or crimes as specified in 12 NCAC 02J .0209(b), such that the applicant would be ineligible for commissioning as a Campus Police officer. Authority G.S. 74G-4. 12 NCAC 02J .0202 APPLICATION FOR CAMPUS POLICE AGENCY Each campus police agency shall complete and submit to the Campus Police Administrator the following items and documentation: (1) an application form; (2) articles of incorporation or other agency originating documentation, which specifies the agency's law enforcement functions; (3) names and addresses for all corporate officers and directors; (4) a copy of the campus police agency's insurance policy, or if self insured, the certificate of self insurance (applicable to non-public entities only); (5) a criminal history record check on each corporate officer and director of the corporation through the clerk of superior court in each county where the individual resided or maintained a residence over a five year period prior to such application. However, this Rule does not require the agency to submit a criminal history record check on currently commissioned campus police officers; (6) the appropriate fees as required by 12 NCAC 02J .0205; (7) a listing of the names and addresses of all institutions for which the campus police agency has contracted with to provide services. Authority G.S. 74G. 12 NCAC 02J .0203 APPLICATION FOR CAMPUS POLICE OFFICER The application for a campus police officer must contain: (1) a written request from the Department Head of the campus, or agency requesting that a campus police commission be issued to the applicant. An oral request will not satisfy this requirement; and (2) if the applicant holds general certification issued by the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission, the application must contain the following: PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 693 (a) Medical History Statement (Form F-1); (b) Medical Examination Report (Form F-2); (c) Two complete fingerprint cards; (d) One digital photograph of applicant, not more than three months old, in JPEG format to be emailed to the Campus Police Administrator for picture I.D; (e) Proof of a negative drug screen as specified in 12 NCAC 02J .0201(7); (f) Proof of successful completion of all in-service training requirements specified by the North Carolina Criminal Justice Education and Training Standards Commission, which standards are hereby incorporated by reference and shall automatically include any later amendments and editions of the referenced material; (g) Authorization for release of records (CP-1); (h) Drug Screen Consent Form (CP-2); (i) Appropriate fees as specified in 12 NCAC 02J .0205; (j) An appropriate background investigation as specified in 12 NCAC 02J .0204 (Form F-8); and (k) Personal History Statement (Form F- 3) not more than three months old; or (3) if the applicant does not hold general certification, the application must contain the following: (a) Medical History Statement (Form F-1); (b) Medical Examination Report (Form F-2); (c) Personal History Statement not more than three months old, (Form F-3); (d) Report of Qualification Appraisal Interview (Form F-4); (e) Proof of High School graduation or GED; (f) Two complete fingerprint cards; (g) One digital photograph of applicant, not more than three months old, in JPEG format to be emailed to the Campus Police Administrator for picture I.D; (h) Proof of satisfactory completion of a Criminal Justice Education and Training Standards Commission accredited basic law enforcement training course; (i) Proof of a negative drug screen; (j) Authorization for Release of Records (CP-1); (k) Drug Screen Consent Form (CP-2); (l) Appropriate fees as specified in 12 NCAC 20J .0205; and (m) Background investigation as specified in 12 NCAC 02J .0204 (Form F-8); or All other documentation currently valid in the commissioned officer's file will be transferred to a new file for the officer under Chapter 74G. Authority G.S. 74G. 12 NCAC 02J .0204 BACKGROUND INVESTIGATION (a) Any campus police agency contemplating the commissioning of an applicant as a campus police officer shall, prior to employment, complete a background investigation on such applicant. The investigation shall examine the applicant's character traits and habits relevant to performance as a campus police officer and shall determine whether the applicant is of good moral character as referred to in G.S. 17C-10(c). The investigation shall be submitted to the Campus Police Administrator utilizing the Commission-approved Form F-8 (Summary of Background Investigation). (b) Prior to the investigation, the applicant shall complete a Personal History Statement (Form F-3) to provide a basis for the investigation. (c) The Department Head shall conduct the applicant's background investigation. The Department Head shall document the results of the investigation and shall include in the report of investigation: (1) biographical data; (2) family data; (3) scholastic data; (4) employment data; (5) interviews with the applicant's references; and (6) a summary of the Department Head's findings and conclusions regarding the applicant's moral character as referred to in G.S. 17C-10(c). (d) The agency may use the method of documenting the results of the background investigation it deems most appropriate to its needs. However, the campus police program's "Summary of Background Investigation" form shall be used as a guide for minimum information collected and recorded by the investigator. (e) In the event that an individual applying for commission as a campus police officer is the Department Head, he shall not conduct his own background investigation. The investigation must be performed by a city or county agency in the county where the campus police agency has jurisdiction, or contract with a private investigator. Authority G.S. 74G-4. 12 NCAC 02J .0205 FEE PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 694 (a) Upon notification that an application for a campus police agency certification or a campus police officer commission has been approved, the applicant shall forward a certified check or money order made out to the North Carolina Department of Justice to the: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 (b) The following fees shall be due and payable prior to the issuance of campus police agency certification or a campus police officer commission. (1) Application for certification as a campus police agency - $250.00. (2) Annual renewal of certification as a campus police agency - $200.00. (3) Application for reinstatement of certification as a campus police agency - $1,000.00. (4) Application for commission as a campus police officer - $100.00. (5) Annual renewal of commission as a campus police officer - $50.00. (6) Application for reinstatement of commission as a campus police officer - $150.00. (c) Currently commissioned campus police officers will be required to submit the Application for Commission as a campus police officer fee as set forth in Subparagraph (b)(4) of this Rule. Authority G.S. 74G-12. 12 NCAC 02J .0206 OATH Every campus police officer so appointed shall, before entering upon the duties of his office, take and subscribe to the oath provided for in G.S. 11-11 before an officer authorized by G.S. 11-7.1 to administer oaths, and shall forward a copy of the executed oath within 10 days of the day on which the oath is subscribed to the Campus Police Administrator. Authority G.S. 11-11; 74G-6. 12 NCAC 02J .0207 LIABILITY INSURANCE (a) Any applicant for a non-public campus police agency certification must file with the Campus Police Administrator, either a copy of the liability insurance policy or a certificate of self insurance, at the following address: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 (b) Any notice of cancellation by an insurance carrier shall be delivered by certified mail, return receipt requested, to the following address: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 Authority G.S. 74G-3. 12 NCAC 02J .0208 SUSPENSION, REVOCATION OR DENIAL OF AGENCY CERTIFICATION (a) A campus police agency certification may be suspended, revoked or denied upon a finding that the agency has: (1) failed to pay any required fees; (2) failed to produce or maintain a copy of a liability insurance policy or a certificate of self insurance; (3) failed to meet any of the requirements for certification provided in 12 NCAC 02J .0202; (4) failed to provide any of the required documentation pursuant to 12 NCAC 02J .0202; (5) failed to allow for the reasonable inspection of the Campus Police agency records pursuant to G.S. 74G-4(3); (6) failed to ensure compliance by the agency's campus police officers of any and all in-service training requirements as specified by 12 NCAC 09E .0100; (7) failed to submit the required in-service training compliance reports as required by 12 NCAC 09E .0100; (8) failed to submit any and all reports, notification or other information required or requested by the Campus Police Administrator; (9) knowingly made a material misrepresentation of any information required for certification or commissioning from the Campus Police Administrator or the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission; (10) knowingly and willfully by any means of false pretense, deception, defraudation, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training, certification or commissioning from the Campus Police Administrator of the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission; (11) aided another in obtaining or attempting to obtain credit, training, or certification from the Campus Police Administrator, the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission by means of deceit, fraud or misrepresentation or cheating; or (12) failed to ensure that any employee not commissioned as a campus police officer is PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 695 not violating a prohibition set forth in 12 NCAC 02J .0302. (b) An agency whose certification has been suspended, revoked, or denied may appeal the action in accordance with the provisions of G.S. 150B. Authority G.S. 74G-4. 12 NCAC 02J .0209 SUSPENSION, REVOCATION, OR DENIAL OF OFFICER COMMISSION (a) A campus police commission shall be revoked or denied upon a finding that the officer has committed or been convicted of: (1) any felony (unless pardoned by the President of the United States or a state Governor); or (2) any crime for which the authorized punishment could have been imprisonment for more than two years. (b) The Attorney General, or his designee, may revoke, suspend, or deny the commission of a campus police officer when the Campus Police Administrator finds that the applicant for commission or the commissioned campus police officer has committed or been convicted of: (1) a crime or unlawful act as defined in 12 NCAC 09A .0103(22)(b) as a Class B misdemeanor and which occurred after the date of initial certification; (2) a crime or unlawful act as defined in 12 NCAC 09A .0103(22)(b) as a Class B misdemeanor within a five-year period prior to the date of application for certification; (3) four or more crimes or unlawful acts as defined in 12 NCAC 09A .0103(22)(b) as Class B misdemeanors regardless of the date of commission or conviction; (4) four or more crimes or unlawful acts as defined in 12 NCAC 09A .0103(22)(a) as a Class A misdemeanor, each of which occurred after the date of initial certification; or (5) four or more crimes or unlawful acts as defined in 12 NCAC 09A .0103(22)(a) as a Class A misdemeanor except the applicant may be certified if the last conviction or commission occurred more than two years prior to the date of the application for certification. (c) In addition, a campus police commission shall be revoked or denied upon a finding that the officer: (1) lacks good moral character as referred to in G.S. 17C-10(c); (2) fails to meet any of the required minimum standards as specified in 12 NCAC 02J .0203; (3) has been terminated from employment with the campus police agency for which the officer is commissioned or is no longer employed with such campus police agency; (4) has committed any act prohibited by 12 NCAC 02J .0302; or (5) termination, suspension, or revocation of the certification of the campus police agency with which the officer is commissioned. (d) An officer whose certification has been suspended, revoked, or denied may appeal the action in accordance with the provisions of G.S. 150B. Authority G.S. 74G-4. 12 NCAC 02J .0210 PERIOD OF SUSPENSION, REVOCATION OR DENIAL (a) When the Attorney General, or his designee, suspends or denies the commission of a campus police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may either reduce or suspend the period of sanction under 12 NCAC 02J .0211(b) or substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is: (1) commission or conviction of a crime other than those listed in Paragraph (a) of Rule 12 NCAC 02J .0208; (2) refusal to submit to the applicant or lateral transferee drug screen required by 12 NCAC 02J .0201(7); (3) production of a positive result on a drug screen reported to the Campus Police Administrator where the positive result cannot be explained to the Campus Police Administrator's satisfaction; (4) material misrepresentation of any information required for campus police commissioning; (5) obtaining, attempting to obtain, aiding another person to obtain, or aiding another person attempting to obtain credit, training or commissioning as a campus police officer by any means of false pretense, deception, defraudation, misrepresentation or cheating; or (6) failure to make either of the notifications as required by 12 NCAC 02J .0201(8). (b) When the Attorney General, or his designee, suspends or denies the commission of a campus police officer, the period of sanction shall be continued so long as the stated deficiency, infraction, or impairment continues to exist, where the cause of sanction is: (1) failure to meet or satisfy all basic training requirements; (2) failure to meet or maintain the minimum standards of employment specified in 12 NCAC 02J .0201(4); (3) discharge from a criminal justice agency for impairment of physical or mental capabilities; or (4) failure to meet the in-service training requirements as prescribed by the North Carolina Criminal Justice Education and Training Standards Commission. PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 696 Authority G.S. 74G-4. 12 NCAC 02J .0211 SUMMARY SUSPENSIONS (a) The Campus Police Administrator, through designation by the Attorney General, may summarily suspend the commission of the campus police officer before the commencement of proceedings for suspension or revocation of the certification when, in the opinion of the Campus Police Administrator, the public health, safety, or welfare requires this emergency action of summary suspension. The Campus Police Administrator has determined that the following conditions specifically affect the public health, safety, or welfare, and therefore, the Campus Police Administrator may utilize summary suspension when: (1) the person has committed or been convicted of a violation of the criminal code which would require a permanent revocation or denial of certification; or (2) the commissioned campus police officer fails to satisfactorily complete the minimum in-service training requirements as prescribed in Title 12, Chapter 09 of the North Carolina Administrative Code. (b) A summary suspension shall be effective on the date specified in the order of the summary suspension or upon the service of the certified copy of the order at the last known address of the person, whichever is later. The summary suspension shall remain in effect during the proceedings. (c) Upon verbal notification by the Campus Police Administrator that the campus police commission of any officer is being summarily suspended by written order, the Department Head of the campus police agency shall take such steps as are necessary to ensure that the officer does not perform duties requiring a campus police commission through the Attorney General. Authority G.S. 74G-4; 74G-10. SECTION .0300 - CONDUCT OF COMMISSIONED POLICEMEN 12 NCAC 02J .0301 TENURE A campus police officer commission or campus police agency certification shall remain in effect until: (1) The Attorney General directs termination; (2) The campus police officer ceases to be employed by a campus police agency; (3) The required liability insurance is terminated or suspended by the agency's insurance carrier; (4) The need for a commission no longer exists; (5) Evidence is presented that the person has committed an act which would have originally caused denial of the application or an act prohibited by Rule .0304 of this Section; or (6) The Criminal Justice Education and Training Standards Commission suspends or revokes an officer's certification for cause. Authority G.S. 74G-4; 74G-6; 74G-10. 12 NCAC 02J .0302 PROHIBITED ACTS In addition to the prohibited acts set forth elsewhere in these Rules and in Chapter 74G, the following acts are prohibited and may result in civil or criminal action or both: (1) use of excess force while in the performance of their official duties; (2) carrying a concealed weapon except: (a) when on his own business property or at home; (b) in conformity with G.S. 74G-6; (3) activating or operating a red light in or on any vehicle in this State unless such vehicle is exempted from the provisions of G.S. 20- 130.1(b); (4) activating or operating a blue light in or on any vehicle in this State except: (a) when operating a motor vehicle used primarily by campus police in the performance of their official duties; (b) when in property jurisdiction limitations specifically described under G.S. 74G-6; or (c) when in continuous or immediate pursuit of a person for an offense committed upon real property owned by or in the possession or control of their employer or real property or in the possession and control of a person who has contracted with the employer to provide on-site police security personnel services for the property; or (d) during the transportation of an arrestee, which the campus policy agency has taken into custody; (5) activating or operating a siren when operating any motor vehicle used primarily by any campus police agency in the performance of their official duties when outside of the property jurisdiction limitations specifically described under G.S. 74G-6 unless in immediate and continuous pursuit; (6) representing in any manner at any time that he is a federal, state, county, or municipal law enforcement officer, unless the campus police officer is dually certified as one of the classifications listed in this Rule; (7) impeding traffic, stopping motorists or pedestrians, or in any manner imposing or attempting to impose his will upon another person as police authority unless: (a) he is on the property specifically described under G.S. 74G-6; or (b) when in immediate and continuous pursuit of any person for an offense which occurred within the property PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 697 jurisdiction limitations specifically described under G.S. 74G-6; (8) using or attempting to use authority granted under a campus police commission pursuant to this Subchapter outside the political boundaries of North Carolina; or (9) violating Rule .0304 of this Section. Authority G.S. 74G-4; 74G-6. 12 NCAC 02J .0303 TRANSFERS No individual commissioned as a campus police officer can transfer his campus police commission from one employing campus police agency to another. Authority G.S. 74G-4; 74G-6. 12 NCAC 02J .0304 BADGES, UNIFORMS, VEHICLES AND OFFICER IDENTIFICATION (a) Badges: (1) All campus police officers shall, when on duty, wear a badge bearing the name of the certified campus police agency and the general title of Campus Police. (2) The badge is to be carried at all times by the campus police officer. The badge shall always be worn in plain view, except in situations where the officer's weapon is concealed under the provisions set forth in Rule .0302 of this Section. (3) No identification card shall be issued to or possessed by any campus police officer except in the form of identification issued to the officer by the Attorney General. (b) Uniforms: (1) All campus police officers shall, when on duty, wear the uniform of the campus police agency unless directed to wear other attire by the Department Head. (2) When wearing civilian attire, the campus police officer shall comply with 12 NCAC 02I .0304(a). (3) Those campus police agencies which employ both campus police commissioned and non-commissioned security personnel shall provide the commissioned campus police officers with a uniform of a different color that would clearly distinguish the campus police officer from other employees of the agency. (4) The uniform of the campus police officer shall bear shoulder patches that contain: (A) the term "Campus Police,"; and (B) the name of the campus police agency. (c) Vehicles: (1) Each marked vehicle used by a campus police agency subject to this Rule shall prominently display the agency name and the agency classification of " Campus Police". (2) The Department Head shall ensure that employees who have not been commissioned as campus police officers do not operate any marked vehicle used by the campus police agency. (3) The Department Head shall ensure that employees who are not commissioned as a campus police officer do not operate any campus police vehicle with a blue light contained therein. (4) The Department Head shall ensure that any marked campus police agency vehicle is not operated outside of those property jurisdiction limitations set forth in G.S. 74G-6, unless such operation is performed by an on-duty officer in the performance of his official duties and authorized by the Department Head. (d) All campus police agencies shall comply with the provisions of this Rule for badges, vehicles, uniforms, and other equipment no later than January 1, 2006. Authority G.S. 74G-7. TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 02 – BOARD OF ARCHITECTURE Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Architecture intends to adopt the rule cited as 21 NCAC 02 .0220 and amend the rules cited as 21 NCAC 02 .0205-.0206, 0208-.0210, .0213, .0217, .0302-.0303, .0901, .0904, .0906, .0910. Proposed Effective Date: March 1, 2006 Public Hearing: Date: November 16, 2005 Time: 1:00 p.m. Location: NC Board of Architecture, 127 W. Hargett Street, Suite 304, Raleigh, NC Reason for Proposed Action: To clarify submission requirements for plans and specifications done by architects; to clarify license renewal process and unprofessional conduct rules for active architects and those on emeritus status; to clarify continuing education requirements; to clarify architectural firm name and to adopt a new rule to allow non-resident firms to respond to Request for Proposals prior to firm registration. To revise examination and continuing education rule provisions that are no longer applicable because phase in periods have expired. To bring exam score retention in line with National Council of Architecture Registration Boards standards PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 698 Procedure by which a person can object to the agency on a proposed rule: Any objections and its reason may be submitted, in writing, until the expiration of the comment period on January 3, 2006 to Cathe Evans, Executive Director, NC Board of Architecture, 127 W. Hargett Street, Suite 304, Raleigh, NC 27601. Comments may be submitted to: Cathe Evans, Executive Director, NC Board of Architecture, 127 W. Hargett Street, Suite 304, Raleigh, NC 27601, email cathe@ncbarch.org. Comment period ends: January 3, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None SECTION .0200 - PRACTICE OF ARCHITECTURE 21 NCAC 02 .0205 NAME OF FIRM (a) A licensee shall not engage in the practice of architecture under a professional or firm name which is misleading or deceptive in any way as to the legal form of the firm or the persons who are partners, officers, members, or shareholders in the firm. Examples of misleading or deceptive firm names include but are not limited to the following: (1) Use of the plural in any form when the number of architects in a firm does not warrant such use or, (2) Use of the name of an employee unless that employee is a partner, member or shareholder or, (3) Use of the name of a deceased architect in order to benefit from his reputation, when that architect was not a former partner, officer, member or shareholder in the present firm, or (4) Use of a name which is deceptively similar to that of existing firm name. (5) Use of a fictitious name by a sole proprietor or partnership or limited liability partnership (b) Names of all architectural firms, whether sole proprietorships, partnerships, professional limited liability companies, registered limited liability partnerships or professional corporations, shall be approved in writing by the Board before adopted or used by such firm. Provided, however, that this Rule shall not be construed to require any firm to seek approval of, or to change, any name duly adopted in conformity with Board rules in effect at the date of such adoption other than a change that results in a violation of Subparagraph (a)(1) of this Rule. (c) Only firms established pursuant to 21 NCAC 02 .0214 (professional corporations), 21 NCAC 02 .0215 (qualified foreign corporations), or 21 NCAC 02 .0218 (professional limited liability companies) may engage in the practice of architecture under a fictitious name; provided, however, a registered firm in good standing having obtained written approval of its fictitious name prior to the adoption of this Rule and having continuously used such name may continue to use the previously approved name only for so long as: (1) said name complies with Paragraphs (a) and (b) of this Rule, (2) the firm's use of said name is continuous, and (3) the firm complies with any applicable statutes pertaining to the registration of fictitious names, including but not limited to G.S. 66, Article 14. Authority G.S. 55B-5; 83A-6; 83A-9; 83A-12. 21 NCAC 02 .0206 REQUIREMENT FOR AND USE OF PROFESSIONAL SEAL (a) As more fully set out in this Rule, an architect must seal his work whether or not the work is for an exempt project. An architect shall not sign nor seal drawings, specifications, reports or other professional work which were not prepared by the architect or under his direct supervision. (1) Provided, however, that the architect may sign or seal those portions of the professional work that: (A) were prepared by or under the direct supervision of persons who are registered under the architecture registration laws of this jurisdiction if the architect has reviewed in whole or in part such portions and has either coordinated their preparation or integrated them into his or her work; and (B) are not required by law to be prepared by or under the direct supervision of an architect if the architect has reviewed and adopted in whole or in part such portions and has integrated them into his or her work. (2) Individual Seal Design. Every licensed architect shall have an individual seal which shall be composed of two concentric circles with outer and inner circle diameters of PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 699 approximately 12 inches and 1 inch respectively. 1.5 inches and 1 inch respectively. The architect's name and place of business shall be between the inner and outer circles. The words "Registered Architect, North Carolina" shall be along the inside perimeter of the inner circle. The architect's North Carolina registration number shall be in the center of the inner circle. The signature of the individual named on the seal is a required part of an individual seal and a seal image lacking said signature is incomplete and shall not be considered a "seal" for purposes of these Rules. (3) Corporate Seal Design. Every corporation which shall have obtained from the Board a certificate for corporate practice shall have a corporate seal, which shall be composed of two concentric circles with outer and inner circle diameters of approximately 12 inches and 1 inch respectively. 1.5 inches and 1 inch respectively. The Architectural Corporation's approved North Carolina name and place of business shall be between the inner and outer circles. The words "Registered Architectural Corporation, North Carolina" shall be along the inside perimeter of the inner circle. The corporation's North Carolina registration number shall be in the center of the inner circle. (4) Seal Types. The seal required for use on opaque original contract documents technical submissions not intended for duplication shall be of a type which will produce an impression facsimile of the seal, or a rubber stamp which will produce an ink facsimile of the seal. The seal required for use on transparent original contract documents technical submissions intended for duplication shall be of a type which will produce an ink facsimile of the seal such as a rubber stamp, or computer generated type. a substantially similar electronic or digital representation of the design. The use of pre-printed documents bearing a pre-printed facsimile of the seal is prohibited. Technical subm
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Title | North Carolina register |
Date | 2005-11-01 |
Description | Volume 20, Issue 9, (November 1, 2005) |
Digital Characteristics-A | 472 KB; 73 p. |
Digital Format |
application/pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | NORTH CAROLINA REGISTER Volume 20, Issue 09 Pages 665 - 733 November 1, 2005 This issue contains documents officially filed through October 11, 2005. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Dana Sholes, Publications Coordinator Julie Brincefield, Editorial Assistant IN THIS ISSUE I. EXECUTIVE ORDERS Executive Order No. 91 ................................................................ 665 - 666 II. IN ADDITION Social Services Commission Notice of Public Hearing ................ 667 Voting Rights Letter ..................................................................... 668 Tax Review Board Decisions 455-465..................................................................... 669 - 683 III. PROPOSED RULES Health and Human Services Commission of MH/DD/SAS.................................................... 684 – 689 Licensing Boards Architecture............................................................................... 697 - 706 Dental Examiners ...................................................................... 706 - 710 Medical Board........................................................................... 710 - 714 Nursing...................................................................................... 714 - 719 Respiratory Care Board ............................................................. 719 - 721 Justice Company Police Program.......................................................... 689 - 697 IV. CONTESTED CASE DECISIONS Index to ALJ Decisions................................................................. 721 - 726 Text of Selected Decisions 04 DHR 1300 ............................................................................ 727 - 733 For the CUMULATIVE INDEX to the NC Register go to: http://reports.oah.state.nc.us/cumulativeIndex.pl North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2005 – December 2005 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule (first legislative day of the next regular session) 270th day from publication in the Register 19:13 01/03/05 12/08/04 01/18/05 03/04/05 03/21/05 05/01/05 05/06 09/30/05 19:14 01/18/05 12/22/04 02/02/05 03/21/05 04/20/05 06/01/05 05/06 10/15/05 19:15 02/01/05 01/10/05 02/16/05 04/04/05 04/20/05 06/01/05 05/06 10/29/05 19:16 02/15/05 01/25/05 03/02/05 04/18/05 04/20/05 06/01/05 05/06 11/12/05 19:17 03/01/05 02/08/05 03/16/05 05/02/05 05/20/05 07/01/05 05/06 11/26/05 19:18 03/15/05 02/22/05 03/30/05 05/16/05 05/20/05 07/01/05 05/06 12/10/05 19:19 04/01/05 03/10/05 04/16/05 05/31/05 06/20/05 08/01/05 05/06 12/27/05 19:20 04/15/05 03/24/05 04/30/05 06/14/05 06/20/05 08/01/05 05/06 01/10/06 19:21 05/02/05 04/11/05 05/17/05 07/01/05 07/20/05 09/01/05 05/06 01/27/06 19:22 05/16/05 04/25/05 05/31/05 07/15/05 07/20/05 09/01/05 05/06 02/10/06 19:23 06/01/05 05/10/05 06/16/05 08/01/05 08/22/05 10/01/05 05/06 02/26/06 19:24 06/15/05 05/24/05 06/30/05 08/15/05 08/22/05 10/01/05 05/06 03/12/06 20:01 07/01/05 06/10/05 07/16/05 08/30/05 09/20/05 11/01/05 05/06 03/28/06 20:02 07/15/05 06/23/05 07/30/05 09/13/05 09/20/05 11/01/05 05/06 04/11/06 20:03 08/01/05 07/11/05 08/16/05 09/30/05 10/20/05 12/01/05 05/06 04/28/06 20:04 08/15/05 07/25/05 08/30/05 10/14/05 10/20/05 12/01/05 05/06 05/12/06 20:05 09/01/05 08/11/05 09/16/05 10/31/05 11/21/05 01/01/06 05/06 05/29/06 20:06 09/15/05 08/25/05 09/30/05 11/14/05 11/21/05 01/01/06 05/06 06/12/06 20:07 10/03/05 09/12/05 10/18/05 12/02/05 12/20/05 02/01/06 05/06 06/30/06 20:08 10/17/05 09/26/05 11/01/05 12/16/05 12/20/05 02/01/06 05/06 07/14/06 20:09 11/01/05 10/11/05 11/16/05 01/03/06 01/20/06 03/01/06 05/06 07/29/06 20:10 11/15/05 10/24/05 11/30/05 01/17/06 01/20/06 03/01/06 05/06 08/12/06 20:11 12/01/05 11/07/05 12/16/05 01/30/06 02/20/06 04/01/06 05/06 08/28/06 20:12 12/15/05 11/22/05 12/30/05 02/13/06 02/20/06 04/01/06 05/06 09/11/06 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 665 EXECUTIVE ORDER NO. 91 GOVERNOR'S TASK FORCE FOR HEALTHY CAROLINIANS WHEREAS, North Carolina is blessed with some of the finest medical facilities and medical care found anywhere in the world; and WHEREAS, despite these resources, many North Carolinians die or are disabled prematurely every year due to preventable causes, exacting an enormous economic, social and personal toll upon our state; and WHEREAS, most premature deaths and disabilities are preventable by relatively simple changes in behavior that would reduce the causes of these deaths and disabilities, including diabetes, stroke, and obesity; and WHEREAS, in order to provide to the citizens of our state a way to prevent these tragic losses, a realistic plan needs to be developed that communities and individual citizens may implement to improve their health status and avoid premature death and disability; and WHEREAS, this plan must promote the advantages of healthy living and disease prevention. NOW THEREFORE, by the authority vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED: Section 1. Establishment and Rescission of Prior Orders The Governor’s Task Force for Healthy Carolinians (Governor’s Task Force) is hereby established. The Governor’s Task Force established herein is the successor organization to the Governor’s Task Force on Health Objectives for the Year 2000, established in Executive Order No. 56 issued by Governor James B. Hunt, Jr. on July 13, 1994. This Executive Order replaces Executive Order No. 13 dated October 9, 2001. Section 2. Membership The Governor’s Task Force shall have 37 members. The Governor shall appoint 33 members, including the Chair. The Vice Chair shall be elected by the Governor’s Task Force. The President Pro Tempore of the Senate shall be invited to appoint two Members of the Senate, one of whom serves on the Public Health Study Commission. The Speaker of the House of Representatives shall be invited to appoint two members of the House, one of whom serves on the Public Health Study Commission. Each member of the Task Force shall be appointed for terms of four years, and will serve until appointment of a successor. A vacancy on the Governor’s Task Force shall be filled by the original appointing authority. The Governor shall appoint representatives from the following: a. Secretary, Department of Health and Human Services, or designee; b. Association of North Carolina Boards of Health; c. North Carolina Hospital Association; d. North Carolina Medical Society; e. North Carolina Academy of Family Physicians; f. North Carolina Association of Local Health Directors; g. Dean, School of Public Health, University of North Carolina-CH, or designee; h. North Carolina Citizens for Business and Industry; i. North Carolina Commission on Indian Affairs; j. North Carolina Association of County Commissioners; k. National Association for the Advancement of Colored People; l. Mental Health/Developmental Disabilities/Substance Abuse Services Division, DHHS; m. State Health Director, Division Of Public Health, DHHS; n. Director, Office of Research, Demonstrations and Rural Health Development, DHHS or designee; o. North Carolina Dental Society; p. North Carolina Nurses’ Association q. Old North State Medical Society; r. North Carolina Public Health Association; s. Commissioner, NC Department of Agriculture and Consumer Services, or designee; t. Office of Minority Health, DHHS; u. Superintendent of Public Instruction, or designee; EXECUTIVE ORDERS 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 666 v. Governor’s Council on Physical Fitness and Health; w. Eleven at-large members, including a representative of local education, religious organization, older adults, and non-profit organizations. Section 3. Functions a. The Governor’s Task Force shall meet regularly at the call of the Chair. b. The Governor’s Task Force will advise the State Health Director and the Secretary of the Department of Health and Human Services on policies, programs and resources needed to improve the public’s health in North Carolina. c. The Governor's Task Force shall have the responsibility to periodically review the state health objectives, make amendments as necessary, and report progress toward achieving the objectives to the Governor, Secretary of DHHS, and the State Health Director. d. The Governor’s Task Force shall have the power to designate local Healthy Carolinians Task Forces, comprised of representatives of public and private organizations, and community members and leaders, which support the goals of the Governor's Task Force. e. The Governor’s Task Force shall provide encouragement and guidance to communities establishing their own local groups to accomplish the objectives developed by the Governor’s Task Force. f. The Governor's Task Force shall review the Preventative Health and Health Services Block Grant annually and carry out the necessary functions of the advisory committee as required by federal law. Section 4. Administration a. Administrative support for the Governor’s Task Force shall be provided by the Department of Health and Human Services. b. It shall be the responsibility of each Cabinet department to make every reasonable effort to cooperate with the Governor’s Task Force in carrying out the provisions of this Order. This Executive Order is effective immediately and shall remain in effect until rescinded. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in Raleigh, this the 27th day of September 2005. __________________________________________ Michael F. Easley Governor ATTEST: __________________________________________ Elaine F. Marshall Secretary of State IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 667 Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of Rules for publication. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SERVICES COMMISSION NOTICE OF DATE FOR PUBLIC HEARING Social Services Commission - Contract Services Rules: 10A NCAC 67B .0201-.0204; .0301-.0302; .0401-.0404; and .0501-.0505, originally noticed in NC Register Volume 20, Issue 05, pages 244-246. Date: November 16, 2005 Time: 10:00 a.m. Location: Albemarle Building, 8th floor (Conf. Room 832), 325 N. Salisbury St., Raleigh, NC IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 668 U.S. Department of Justice Civil Rights Division JKT:JBG:ALP:maf Voting Section – NWB. DJ 166-012-3 950 Pennsylvania Ave., NW 2005-1255 Washington, D.C. 20530 September 29, 2005 Karen M. McDonald. Esq. City Attorney 433 Hay Street Fayetteville, NC 28302 Mr. Jerry Wilson Reapportionment Group 2000 3009 Rainbow Drive, Suite 143 Decatur, Georgia 30034 Dear Ms. McDonald and Mr. Wilson: This refers to the annexation (Ordinance No. 2004-09-469) and its designation to District 7 of the City of Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on August 5, 2005. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. Procedures for the Administration of Section 5 of the Voting Rights Act (28 C.F.R. 51.41). Sincerely, John Tanner Chief, Voting Section IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 669 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated May 1, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 455 ) Fredy Barahona, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of State Treasurer, on Tuesday, February 8, 2005 Pursuant to the petition of Fredy Barahona (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue on February 24, 2004, regarding the proposed assessment of unauthorized substance tax dated May 1, 2003. The Taxpayer protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing on December 16, 2003, the Assistant Secretary of Revenue issued final decisions that sustained the proposed assessments. Form the Assistant Secretary's Final Decision in Docket Number 2003-242, the Taxpayer filed a petition for administrative review with the Board pursuant to N.C. Gen. Stat. 105-241.2. ISSUES The issues considered by the Board on administrative review of this matter are stated as follows: 1. Did the Taxpayer have actual and/or constructive possession of an unauthorized controlled substance without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary as provided in N.C. Gen. Stat. 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact and entered by the Assistant Secretary in his decision regarding this matter. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. 105-241(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decision, concluded that the findings of fact made by the Assistant Secretary were supported IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 670 by competent evidence in the record; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision be confirmed in every respect. Made and entered into this 29th day of April 2005. TAX REVIEW BOARD Signature_________________________________ Richard H. Moore, Chairman State Treasurer Signature_________________________________ Jo Anne Sanford, Member Chair, Utilities Commission Signature_________________________________ Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 671 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Additional ) Income Tax for the Taxable Years 2000 ) and 2001 by the Secretary of Revenue ) of North Carolina ) ) ADMINISTRATIVE DECISION Vs. ) Number: 456 ) Michael H. Finneran, ) Taxpayer ) This Matter is before the Regular Tax Review Board (hereinafter "Regular Board") upon petition for administrative review filed by Michael H. Finneran (hereinafter "Taxpayer") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessments of additional individual income tax for taxable years 2000 and 2001. Pursuant to N.C. Gen. Stat. 105-241.1, assessments proposing additional tax, penalty and accrued interest for taxable years 2000 and 2001 were mailed to the Taxpayer on September 30, 2002. The Taxpayer protested the assessments and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on November 4, 2003, that sustained the proposed assessments against the Taxpayer for tax years 2000 and 2001. Pursuant to N.C. Gen. Stat. 105- 241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer's petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for administrative review be and is herby Dismissed. Made and entered into this 29th day of April 2005. TAX REVIEW BOARD Signature_________________________________ Richard H. Moore, Chairman State Treasurer Signature_________________________________ Jo Anne Sanford, Member Chair, Utilities Commission Signature_________________________________ Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 672 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 26, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 457 ) Daniel G. Hamamoto, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Tuesday, February 8, 2005 pursuant to the petition of Daniel G. Hamamoto (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue on October 15, 2003, regarding the proposed assessment of unauthorized substance tax dated February 26, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing on July 22, 2003, the Assistant Secretary of Revenue entered a Final Decision that sustained the proposed assessment. From the Assistant Secretary decision, the Taxpayer filed a notice of intent and petition for administrative with the Board pursuant to N.C. Gen. Stat. § 105-241.2. ISSUES The issues considered by the Board on administrative review of this matter are stated as follows: 1. Did the Taxpayer have actual and/or constructive possession of an unauthorized controlled substance without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary as provided in N.C. Gen. Stat. § 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact entered by the Assistant Secretary in his decision regarding this appeal. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this appeal. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decisions, concluded that the findings of fact made by the Assistant Secretary were supported IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 673 by competent evidence in the record; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision be confirmed in every respect. Made and entered into the 29th day of April 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 674 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 11, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 458 ) Theodore Franklin Cheek, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Tuesday, February 8, 2005 pursuant to the petition of Theodore Franklin Cheek (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue on November 18, 2003, regarding the proposed assessment of unauthorized substance tax dated February 11, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing on July 22, 2003, the Assistant Secretary of Revenue entered a Final Decision that sustained the proposed assessment. From the Assistant Secretary decision, the Taxpayer filed a notice of intent and petition for administrative with the Board pursuant to N.C. Gen. Stat. § 105-241.2. ISSUES The issues considered by the Board on administrative review of this matter are stated as follows: 1. Did the Taxpayer have actual and/or constructive possession of an unauthorized controlled substance without the proper tax stamps affixed? 2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax? EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary at provided in N.C. Gen. Stat. § 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact entered by the Assistant Secretary in his decision regarding this appeal. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this appeal. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decisions, concluded that the findings of fact made by the Assistant Secretary were supported IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 675 by competent evidence in the record; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact; therefore the decision of the Assistant Secretary should be confirmed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision be confirmed in every respect. Made and entered into the 29th day of April 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 676 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Individual ) Income Tax for taxable years 2001 and ) 2002 by the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 459 ) Larry A. and Geneva M. Gillus, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Tuesday, February 8, 2005 pursuant to the petition of Larry A. and Geneva M. Gillus (hereinafter "Taxpayers") for administrative review of the final decision entered by the Assistant Secretary of Revenue on November 13 2003, regarding the proposed assessment of individual income tax, plus penalties and interest. The Taxpayers protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing on August 21, 2003, the Assistant Secretary of Revenue issued his decision and ruled that the proposed tax assessment, as corrected, for taxable year 2001 and the proposed assessment for tax year 2002 were lawful and proper and sustained the tax, penalties and interest in this matter. From the Assistant Secretary's Final Decision, the Taxpayers filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. ISSUES The Board considered the following issues in this matter: 1. Whether the Taxpayers were residents of North Carolina for income tax purposes during the entire taxable years of 2001 and 2002. 2. Whether the assessments for additional tax, penalties and interest proposed against the Taxpayers for taxable years 2001 and 2002 were lawful and proper. EVIDENCE The Board reviewed all the documents, records, data, evidence and other materials that the parties presented at the hearing before the Assistant Secretary and the final decision issued by the Assistant Secretary as provided in N.C. Gen. Stat. § 105-241.2(b). FINDINGS OF FACT The Board reviewed and considered the findings of fact entered by the Assistant Secretary in his decision regarding this matter. CONCLUSIONS OF LAW The Board reviewed and considered the conclusions of law entered by the Assistant Secretary in his decision regarding this matter. DECISION The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It is the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based upon the evidence presented at the hearing before the Assistant Secretary. IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 677 The Board having conducted an administrative hearing in this matter, and having considered the petition, the brief, the whole record and the Assistant Secretary's final decision, concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record as to the proposed tax and interest assessed in this matter; that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact as to the proposed tax and interest assessed in this matter; therefore the decision of the Assistant Secretary sustaining the proposed tax and interest is sustained. Because the failure of the Taxpayers to pay the income taxes assessed in this matter was not the result of an intentional or negligent disregard of the law, the Board determines that the Taxpayers acted in good faith and finds reasonable cause to waive the penalties that were imposed. WHEREFORE, THE BOARD ORDERS that the Assistant Secretary's final decision, as modified herein is confirmed. Made and entered into the 29th day of April 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 678 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated August 13, 2002 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 460 ) James Patrick Rusk, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of James Patrick Rusk (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated August 13, 2002. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter and having reviewed the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were not supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were not supported by the findings of fact, and that the decision by the Assistant Secretary was not supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is reversed in every respect. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 679 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 4, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 461 ) William Alexander Richards, Jr., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of William Alexander Richards, Jr. (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated February 4, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter, and having considered the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were fully supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of fact, and that the decision by the Assistant Secretary was fully supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 680 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated May 14, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 462 ) Jashua Dean Cumbie, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of Jashua Dean Cumbie (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated May 14, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter, and having reviewed the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were fully supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of fact, and that the final decision by the Assistant Secretary was fully supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 681 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Additional ) Income Tax for the Taxable Years 1998 ) through 2000 by the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 463 ) Michael J. Williams, ) Taxpayer ) THIS MATTER is before the Regular Tax Review Board (hereinafter "Regular Board") upon petition for administrative review filed by Michael J. Williams (hereinafter "Taxpayer") regarding the final decision of Eugene J. Cella, Assistant Secretary of Revenue (hereinafter "Assistant Secretary"), entered on February 17, 2004, sustaining the proposed assessment of additional income tax for taxable years 1998 through 2000. Pursuant to G.S. 105-241.1, the Department of Revenue mailed the Taxpayer Notices of Individual Income Tax Assessments, assessing tax, penalties and accrued interest for the taxable years 1989 through 2000. The Taxpayer objected to the assessments and filed a request for hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision on February 17, 2004, sustaining the proposed assessments. Pursuant to G.S. 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's Final Decision with the Tax Review Board. Pursuant to G.S. 105-241.2(c), the Board has examined the petition, and the records and documents transmitted by the Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly deemed by the Courts to be lacking in legal merit. Thus, the Board concludes that Taxpayer's petition is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for review be and is hereby Dismissed. Made and entered into the 19th day of July 2005. TAX REVIEW BOARD Signature Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 682 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated August 13, 2002 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 464 ) Jeffery Lynn Prince, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of Jeffrey Lynn Prince (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue sustaining the proposed assessment of unauthorized substance tax dated August 13, 2002. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter concluded that the findings of fact made by the Assistant Secretary were fully supported by competent evidence of record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of fact, and that the final decision by the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 25th day of July 2005. TAX REVIEW BOARD Signature Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 683 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Sales and ) Use Tax for the period of May 1, 2000 through ) March 31, 2003 by the Secretary ) of Revenue ) ) ADMINISTRATIVE DECISION Vs. ) Number: 465 ) Docket Number 2003-441 Greene Bros. Well and Pump, W.T., Inc., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Monday, April 25, 2005 pursuant to the petition of Greene Bros. Well and Pump, W.T., Inc. (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of sales and use tax for the period of May 1, 2000 through March 31, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. The Board having conducted an administrative hearing in this matter, and having considered the petition and the Assistant Secretary's final decision, concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence of record, and that the conclusions of law made by the Assistant Secretary were supported by the findings of fact. The Assistant Secretary's final decision was supported by the conclusions of law. Because the Taxpayer's failure to pay the tax assessed in this matter was not the result of an intentional or negligent disregard of the law, the Board, in its discretion, deems that the Taxpayer acted in good faith and finds reasonable cause to waive the penalties that were imposed. IT IS THEREFORE ORDERED that the Assistant Secretary's final decision, as modified herein, is confirmed. Made and entered into the 25th day of July 2005. TAX REVIEW BOARD Signature Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, Chairman State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 684 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission of MH/DD/SAS intends to adopt the rules cited as 10A NCAC 27G .1701-.1708 and amend the rule cited as 10A NCAC 27G .1301. Proposed Effective Date: March 1, 2006 Public Hearing: Date: January 18, 2006 Time: 2:00 p.m. Location: Holiday Inn(North)-2805 Highwoods Blvd., Raleigh, NC 27604 Reason for Proposed Action: The proposed amendment of 10A NCAC 27G .1301 and the adoption of 10A NCAC 27G .1700 is necessary to strengthen current residential treatment facility licensure rules. The proposed rule changes represent the first part of comprehensive plan to revamp the child residential treatment service continuum. The proposed rules add additional safeguards for children and adolescents and establish higher standards for providers of residential treatment services. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objection and the clearly identified portion of the rule to which the objection pertains, may be submitted in writing to Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018. Comments may be submitted to: Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018, phone (919)715- 2780, fax (919)733-1221 or email cindy.kornegay@ncmail.net. Comment period ends: January 18, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State – 10A NCAC 27G .1701-.1708 Local – 10A NCAC 27G .1701-.1708 Substantive (>$3,000,000) – 10A NCAC 27G .1701- .1708 None – 10A NCAC 27G .1301 CHAPTER 27 – MENTAL HEALTH: COMMUNITY FACILITIES AND SERVICES SUBCHAPTER 27G - RULES FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES, AND SUBSTANCE ABUSE FACILITIES AND SERVICES SECTION .1300 - RESIDENTIAL TREATMENT FOR CHILDREN OR ADOLESCENTS 10A NCAC 27G .1301 SCOPE (a) The rules of this Section apply only to a residential treatment facility that provides residential treatment, level II, program type service. (b) A residential treatment facility providing residential treatment, level III service, shall be licensed as set forth in 10A NCAC 27G .1700. (c) A residential treatment facility for children and adolescents is a free-standing residential facility which provides a structured living environment within a system of care approach for children and or adolescents who have a primary diagnosis of mental illness or emotional disturbance and who may also have other disabilities. disabilities and for whom removal from home is essential to facilitate treatment. (d) Services shall be designed to address the functioning level of the child or adolescent and include training in self-control, communication skills, social skills, and recreational skills. Some children Children or adolescents may be able to may receive services in a day treatment facility, have a job placement, or attend public school. schools; for others, special education services may need to be offered within the residential setting. (e)(c) Services shall be designed to support the child or adolescent in gaining the skills necessary to return to the natural, or therapeutic home setting. The target populations to be served in a residential setting are children and adolescents for whom removal from home to a community-based residential setting is essential to facilitate treatment. Residential treatment is targeted toward children and adolescents who no longer meet criteria for inpatient psychiatric services or intensive residential treatment and need a step-down placement in the community, or PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 685 those who have been placed in non-residential community setting and need a more intensive treatment program. (f)(d) Treatment, services, and discharge plans provided by. The residential treatment facilities facility shall coordinate be coordinated with other individuals and agencies within the client's local system of care. Authority G.S. 122C-26; 143B-147. SECTION .1700 - RESIDENTIAL TREATMENT STAFF SECURE FOR CHILDREN OR ADOLESCENTS 10A NCAC 27G .1701 SCOPE (a) A residential treatment staff secure facility for children or adolescents is one that is a free-standing residential facility that provides intensive, active therapeutic treatment and interventions within a system of care approach. It shall not be the primary residence of an individual who is not a client of the facility. (b) Staff secure means staff are required to be awake during client sleep hours and supervision shall be continuous as set forth in Rule .1704 of this Section. (c) The population served shall be children or adolescents who have a principal diagnosis of mental illness, emotional disturbance or substance-related disorders; and may also have co-occurring disorders including developmental disabilities. These children or adolescents shall not meet criteria for inpatient psychiatric services. (d) The children or adolescents served shall require the following: (1) removal from home to a community-based residential setting in order to facilitate treatment; and (2) treatment in a staff secure setting. (e) Services shall be designed to: (1) include individualized supervision and structure of daily living; (2) minimize the occurrence of behaviors related to functional deficits; (3) ensure safety and deescalate out of control behaviors including frequent crisis management with or without physical restraint; (4) assist the child or adolescent in the acquisition of adaptive functioning in self-control, communication, social and recreational skills; and (5) support the child or adolescent in gaining the skills needed to step-down to a less intensive treatment setting. (f) The residential treatment staff secure facility shall coordinate with other individuals and agencies within the child or adolescent's system of care. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1702 REQUIREMENTS OF QUALIFIED PROFESSIONALS (a) Each facility shall utilize at least one direct care staff who meets the requirements of a qualified professional as set forth in 10A NCAC 27G .0104(18). In addition, this qualified professional shall have two years of direct client care experience. (b) For each facility of five or less beds: (1) the qualified professional specified in Paragraph (a) of this Rule shall perform clinical and administrative responsibilities a minimum of 10 hours each week; and (2) 70% of the time shall occur when children or adolescents are awake and present in the facility. (c) For each facility of six or more beds: (1) the qualified professional specified in Paragraph (a) of this Rule shall perform clinical and administrative responsibilities a minimum of 32 hours each week; and (2) 70% of the time shall occur when children or adolescents are awake and present in the facility. (d) The governing body responsible for each facility shall develop and implement written policies that specify the clinical and administrative responsibilities of its qualified professional(s). At a minimum these policies shall include: (1) supervision of its associate professional(s) as set forth in Rule .1703 of this Section; (2) oversight of emergencies; (3) provision of direct psychoeducational services to children or adolescents; (4) participation in treatment planning meetings; (5) coordination of each child or adolescent's treatment plan; and (6) provision of basic case management functions. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1703 REQUIREMENTS FOR ASSOCIATE PROFESSIONALS (a) In addition to the qualified professional specified in Rule .1702 of this Section, each facility shall have at least one full-time direct care staff who meets or exceeds the requirements of an associate professional as set forth in 10A NCAC 27G .0104(1). (b) The governing body responsible for each facility shall develop and implement written policies that specify the responsibilities of its associate professional(s). At a minimum these policies shall address the following: (1) management of the day to day operations of the facility; (2) supervision of paraprofessionals regarding responsibilities related to the implementation of each child or adolescent's treatment plan; (3) participation in service planning meetings. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1704 MINIMUM STAFFING PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 686 REQUIREMENTS (a) One direct care staff shall be present in the facility at all times when children or adolescents are away from the facility. (b) A qualified professional shall be available by telephone or page. An additional direct care staff shall be able to reach the facility within 30 minute at all times. (c) The minimum number of direct care staff required when children or adolescents are present and awake is as follows: (1) two direct care staff shall be present for one, two, three or four children or adolescents; (2) three direct care staff shall be present for five, six, seven or eight children or adolescents; and (3) four direct care staff shall be present for 9, 10, 11 or 12 children or adolescents. (d) The minimum number of direct care staff during child or adolescent sleep hours is as follows: (1) two direct care staff shall be present and awake for eight or less children or adolescents; and (2) three direct care staff shall be present of which two shall be awake and the third may be asleep for 9, 10, 11 or 12 children or adolescents. (e) In addition to the minimum number of direct care staff set forth in Paragraphs (a)-(d) of this Rule, more direct care staff shall be required in the facility based on the child or adolescent's individual needs as specified in the treatment plan. (f) Each facility shall be responsible for insuring supervision of children or adolescents when they are away from the facility in accordance with the child or adolescent's individual strengths and needs as specified in the treatment plan. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1705 REQUIREMENTS OF LICENSED PROFESSIONALS (a) Face to face clinical consultation shall be provided in each facility at least four hours a week by a licensed professional. For purposes of this Rule, licensed professional means an individual who holds a license or provisional license issued by the governing board regulating a human service profession in the State of North Carolina. For substance-related disorders this shall include a certified Clinical Addiction Specialist or a Clinical Certified Supervisor. (b) The consultation specified in Paragraph (a) of this Rule shall include: (1) clinical supervision of the qualified professional specified in Rule .1702 of this Section; (2) individual, group or family therapy services; and (3) involvement in child or adolescent specific treatment plans or overall program issues. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1706 OPERATIONS (a) Each facility shall serve no more than a total of 12 children and adolescents. (b) Family members or other legally responsible persons shall be involved in development of plans in order to assure a smooth transition to a less restrictive setting. (c) The residential treatment staff secure facility shall coordinate with the local education agency to ensure that the child's educational needs are met as identified in the child's education plan and the treatment plan. Most of the children will be able to attend school; for others, the facility will coordinate services across settings such as alternative learning programs, day treatment, or a job placement. (d) Psychiatric consultation shall be available as needed for each child or adolescent. (e) If an adolescent has his 18th birthday while receiving treatment in the facility, he may remain for six months or until the end of the state fiscal year, whichever is longer. (f) Each child or adolescent shall be entitled to age-appropriate personal belongings unless such entitlement is counter-indicated in the treatment plan. (g) Each facility shall operate 24 hours per day, seven days per week, and each day of the year. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1707 PERSONS PERMITTED IN THE FACILITY (a) Only admitted children or adolescents, legally responsible persons, staff, other family and friends identified in the treatment plan, and others permitted by the facility director shall be permitted on the premises. (b) Individuals other than those specified in Paragraph (a) of this Rule are prohibited from entering the facility except in instances of emergency or as permitted by law. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1708 TRANSFER OR DISCHARGE (a) The purpose of this Rule is to address the transfer or discharge of a child or adolescent from the facility. (b) A child or adolescent shall not be discharged or transferred from a facility, except in case of emergency, without the advance written notification of the treatment team, including the legally responsible person. For purposes of this Rule, treatment team means the same as the existing child and family team or other involved persons as set forth in Paragraph (c) of this Rule. (c) The facility shall meet with existing child and family teams or other involved persons including the parent(s) or legal guardian, area authority or county program representative(s) and other representatives involved in the care and treatment of the child or adolescent, including local Department of Social Services, Local Education Agency and criminal justice agency, to make service planning decisions prior to the transfer or discharge of the child or adolescent from the facility. (d) In case of an emergency, the facility shall notify the treatment team including the legally responsible person of the transfer or discharge of the child or adolescent as soon as the emergency situation is stabilized. PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 687 (e) In case of an emergency, notification may be by telephone. A service planning meeting as set forth in Paragraph (c) of this Rule shall be held within five business days of an emergency transfer or discharge. Authority G.S. 122C-26; 143B-147. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for DMH/DD/SAS intends to adopt the rules cited as 10A NCAC 27G .1801-.1806. Proposed Effective Date: April 1, 2006 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): A person may demand a public hearing on the proposed rules by submitting a request in writing to Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018, by November 16, 2005. Reason for Proposed Action: The proposed adoption is necessary to establish a new licensure category for Intensive Residential Treatment for Children or Adolescents. The proposed rule changes represent a part of a comprehensive plan to revamp the child residential treatment service continuum. The proposed rules establish additional safeguards for children and adolescents and establish higher standards for providers of intensive residential treatment services. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objection and the clearly identified portion of the rule to which the objection pertains, may be submitted in writing to Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018. Comments may be submitted to: Cindy Kornegay, 3018 Mail Service Center, Raleigh, NC 27699-3018, Phone (919)715- 2780, fax (919)733-1221 or email cindy.kornegay@ncmail.net. Comment period ends: January 3, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None CHAPTER 27 – MENTAL HEALTH: COMMUNITY FACILITIES AND SERVICES SUBCHAPTER 27G - RULES FOR MENTAL HEALTH, DEVELOPMENTAL DISABILITIES, AND SUBSTANCE ABUSE FACILITIES AND SERVICES SECTION .1800 – INTENSIVE RESIDENTIAL TREATMENT FOR CHILDREN OR ADOLESCENTS 10A NCAC 27G .1801 SCOPE (a) An intensive residential treatment facility is one that is a 24-hour residential facility that provides a structured living environment within a system of care approach for children or adolescents whose needs require more intensive treatment and supervision than would be available in a residential treatment staff secure facility. (b) It shall not be the primary residence of an individual who is not a client of the facility. (c) The population served shall be children or adolescents who have a principal diagnosis of mental illness, severe emotional and behavioral disorders or substance-related disorders; and may also have co-occurring disorders including developmental disabilities. These children or adolescents shall not meet criteria for acute inpatient psychiatric services. (d) The children or adolescents served shall require the following: (1) removal from home to an intensive integrated treatment setting; and (2) treatment in a locked setting. (e) Services shall be designed to: (1) assist in the development of symptom and behavior management skills; (2) include intensive, frequent and pre-planned crisis management; (3) provide containment and safety from potentially harmful or destructive behaviors; (4) promote involvement in regular productive activity, such as school or work; and (5) support the child or adolescent in gaining the skills needed for reintegration into community living. (f) The intensive residential treatment facility shall coordinate with other individuals and agencies within the child or adolescent's system of care. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1802 REQUIREMENTS OF LICENSED PROFESSIONALS (a) Each facility shall have at least one full-time a licensed professional. For purposes of this Rule, licensed professional means an individual who holds a license or provisional license PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 688 issued by the governing board regulating a human service profession in the State of North Carolina. (b) The governing body responsible for each facility shall develop and implement written policies that specify the clinical and administrative responsibilities of its licensed professional(s). At a minimum these policies shall include: (1) supervision of direct care staff; (2) oversight of emergencies; (3) provision of direct clinical psychoeducational services to children, adolescents or families; (4) participation in treatment planning meetings; and (5) coordination of each child or adolescent's treatment plan. (c) Licensed professionals shall meet the Provider Requirement and Supervision standards as set forth in the Division of Medical Assistance Clinical Policy Number 8D-2, Intensive Residential Treatment Services, including subsequent amendments and editions. A copy of Clinical Policy 8D-2 is available at no cost from the Division of Medical Assistance website at http://www.dhhs.state.nc.us/dma/. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1803 REQUIREMENTS OF QUALIFIED PROFESSIONALS (a) Each facility shall have at least one full-time qualified professional as set forth in 10A NCAC 27G .0104(18). In addition, the qualified professional shall have two years of direct client care experience. (b) For each facility: (1) a qualified professional shall perform clinical and administrative responsibilities a minimum of 40 hours each week; and (2) 75% shall occur when children or adolescents are awake and present in the facility. (c) The governing body responsible for each facility shall develop and implement written policies that specify the clinical and administrative responsibilities of it's qualified professional(s). At a minimum these policies shall include: (1) management of the day to day operations of the facility; (2) supervision of paraprofessionals regarding responsibilities related to the implementation of each child or adolescent's treatment plan; (3) participation in treatment planning meetings; and (4) provision of basic case management functions. (d) The qualified professional shall meet the Provider Requirement and Supervision standards as set forth in the Division of Medical Assistance Clinical Policy Number 8D-2, Intensive Residential Treatment Services, including subsequent amendments and editions. A copy of Clinical Policy 8D-2 is available at no cost from the Division of Medical Assistance website at http://www.dhhs.state.nc.us/dma/. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1804 MINIMUM STAFFING REQUIREMENTS (a) One direct care staff is required to be present in the facility at all times when children or adolescents are away from the facility. (b) An additional on-call direct care staff shall be readily available by telephone or page and able to reach the facility within 30 minutes of the call or page. (c) If children or adolescents are cared for in separate units/buildings, the minimum staffing numbers shall apply to each unit/building. (d) The minimum number of direct care staff required when children or adolescents are present and awake is as follows: (1) three direct care staff shall be present for five or six children or adolescents; (2) four direct care staff shall be present for seven, eight or nine children or adolescents; and (3) five direct care staff shall be present for 10, 11 or 12 children or adolescents. (e) During child or adolescent sleep hours three direct care staff be present of which two shall be awake and the third may be asleep. (f) Direct care staff shall meet the Provider Requirement and Supervision standards as set forth in the Division of Medical Assistance Clinical Policy Number 8D-2, Intensive Residential Treatment Services, including subsequent amendments and editions. A copy of Clinical Policy 8D-2 is available at no cost from the Division of Medical Assistance website at http://www.dhhs.state.nc.us/dma/. (g) In addition to the minimum number of direct care staff set forth in Paragraphs (a)-(e) of this Rule, more direct care staff may be required in the facility based on the child or adolescent's individual needs as specified in the treatment plan. Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1805 OPERATIONS (a) Each facility shall serve no more than 12 children or adolescents. (b) Family members or other legally responsible persons shall be involved in development of plans in order to assure a smooth transition to a less restrictive setting. (c) Educational services within the facility are arranged and designed to maintain the educational and intellectual development of the child or adolescent. Treatment staff shall coordinate with the local education agency to ensure that the child or adolescent's educational needs are met as identified in the education plan. (d) Psychiatric consultation shall be available as needed for each child or adolescent. (e) If an adolescent has his 18th birthday while receiving treatment in the facility, he may remain for six months or until the end of the state fiscal year, whichever is longer. (f) Each child or adolescent shall be entitled to age-appropriate personal belongings unless such entitlement is counter-indicated in the treatment plan. (g) Each facility shall operate 24 hours per day, seven days per week, and each day of the year. PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 689 Authority G.S. 122C-26; 143B-147. 10A NCAC 27G .1806 TRANSFER OR DISCHARGE (a) The purpose of this Rule is to address the transfer or discharge of a child or adolescent from the facility. (b) A child or adolescent shall not be discharged or transferred from a facility, except in case of emergency, without the advance written notification of the treatment team, including the legally responsible person. For purposes of this Rule, treatment team means the same as the existing child and family team or other involved persons as set forth in Paragraph (c) of this Rule. (c) The facility shall meet with existing child and family teams or other involved persons including the parent(s) or legal guardian, area authority or county program representative(s) and other representatives involved in the care and treatment of the child or adolescent, including local Department of Social Services, Local Education Agency and criminal justice agency, to make service planning decisions prior to the transfer or discharge of the child or adolescent from the facility. (d) In case of an emergency, the facility shall notify the treatment team including the legally responsible person of the transfer or discharge of the child or adolescent as soon as the emergency situation is stabilized. (e) In case of an emergency, notification may be by telephone. A service planning meeting as set forth in Paragraph (c) of this Rule shall be held within five business days of an emergency transfer or discharge. Authority G.S. 122C-26; 143B-147. TITLE 12 – DEPARTMENT OF JUSTICE Notice is hereby given in accordance with G.S. 150B-21.2 that the Attorney General intends to adopt the rules cited as 12 NCAC 02J .0101-.0104, .0201-.0211, .0301-.0304. Proposed Effective Date: March 1, 2006 Public Hearing: Date: January 10, 2006 Time: 9:00 a.m. Location: Old Education Building, Room G-22, 114 W. Edenton Street, Raleigh, NC Reason for Proposed Action: Due to ratification of Senate Bill 527, the Campus Police Act, in July 2005, the rules governing Campus Police, which were previously combined with Company and Railroad Police, have been moved to a separate Subchapter within Title 12, Chapter 02. These new rules also reflect new requirements within the Campus Police Program. Procedure by which a person can object to the agency on a proposed rule: The objection, reasons for the objections, and the clearly identified portion of the rule to which the objection pertains, must be submitted in writing to Vickie Huskey, Company Police Program Administrator, Department of Justice, 114 W. Edenton Street, Raleigh, NC 27602. Comments may be submitted to: Vickie Huskey, Company Police Program Administrator, Department of Justice, 114 W. Edenton Street, Raleigh, NC 27602, phone 919-716-6470, fax 919-716-6752, email vhuskey@ncdoj.com. Comment period ends: January 10, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None CHAPTER 2 - OFFICE OF THE ATTORNEY GENERAL SUBCHAPTER 02J- CAMPUS POLICE SECTION .0100 - GENERAL PROVISIONS 12 NCAC 02J .0101 LOCATION The administrative office for the commissioning of campus police officers and the certification of campus police agencies is located in the office of the Criminal Justice Standards Division. Correspondence shall be directed to: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 Authority G.S. 74G; 143A-54. 12 NCAC 02J .0102 PURPOSES The purposes of the Attorney General's Office in granting campus police commissions are: (1) to allow those private institutions of higher education described in G.S. 74G-2 to apply for certification as a campus police agency; (2) to allow those private institutions of higher education described in G.S. 74G-2 to employ PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 690 individuals commissioned as campus police officers pursuant to G.S. 74G-6; and (3) to ensure the integrity, proficiency, and competence of campus police officers and establishing minimum standards for obtaining and maintaining both campus police officer commissions and campus police agency certifications. Authority G.S. 74G-2; 74G-6. 12 NCAC 02J .0103 ADMINISTRATIVE STAFF The administrative staff responsible for campus police commissions and campus police agency certifications consists of assigned personnel from the Criminal Justice Standards Division. The duties of this staff are to carry out the policies of the law and regulations herein and to actively police the individuals already commissioned as campus police officers to assure compliance with the law in all respects. Authority G.S. 74G-4. 12 NCAC 02J .0104 DEFINITIONS In addition to any definitions set forth in G.S. 74G, the following definitions will apply throughout this Chapter, unless the context clearly defines otherwise: (1) "Agency Records" means those records specified pursuant to this Subchapter and that documentation required to be maintained and compiled under the requirements of G.S. 74G. (2) "Badge" means a shield bearing the title of "Campus Police" and the name of the certified campus police agency and the officer's issued identification card provided by the Attorney General which identifies the individual as a campus police officer. (3) "Calendar Year" shall be defined solely for the purpose of in-service training as a period beginning January 1 and ending on December 31. (4) "Certification" means: (a) campus police officers - the authority granted by the North Carolina Criminal Justice Education and Training Standards Commission to those individuals who meet the minimum requirements as a sworn law enforcement officer pursuant to Title 12, Chapter 09B of the North Carolina Administrative Code. (b) campus police agency - the authority granted by the Attorney General to those Campus Police agencies who meet the minimum requirements established for such agencies pursuant to this Chapter. (5) "Commission" as it pertains to criminal offenses, means a finding by an administrative body, pursuant to the provisions of G.S. 150B, that a person performed the acts necessary to satisfy the elements of a specified criminal offense. (6) "Commissioned Campus Police Officer" means those individuals authorized by the Campus Police Administrator to exercise all law enforcement powers within the constraints provided in G.S. 74G and classified as a campus police officer pursuant to G.S. 74G-6(b). (7) "Campus Police Administrator" means the individual who serves as the head of the administrative staff to whom the Attorney General designated the authority to act upon any campus police agency commission or campus police agency certification pursuant to the provisions of G.S. 74G and the rules promulgated thereunder. Said administrator is responsible for the individual officer's or agency's compliance with the Campus Police Act. (8) "Campus Police Agency" means any public or private campus as defined by G.S. 74G-2(b). (9) "Conviction or convicted" means and includes, for the purposes of this Chapter, the entry of: (a) a plea of guilty; (b) a verdict or finding of guilty by a jury, judge, magistrate, or other duly constituted, established, and recognized adjudicating body, tribunal, or official, either civilian or military; or (c) a plea of no contest, nolo contendere, or the equivalent. (10) "Department Head" means the chief administrator of any campus police agency. The Department Head is to include the Campus Police Chief or a designee formally appointed in writing as the Department Head, and who shall hold and maintain a commission as a campus police officer. (11) "Felony" means any offense designated a felony by the laws, statutes, or ordinances of the jurisdiction in which the offense occurred. (12) "High School" means a school accredited as a high school by: (a) the Department or Board of Education of the state in which the high school is located; or (b) the recognized regional accrediting body; or (c) the state university of the state in which the high school is located. (13) "In-Service Training" means any and all training as prescribed in 12 NCAC 02J .0201 which must be satisfactorily completed by campus police officers, in accordance with the standards established therein, during each PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 691 full calendar year of commissioning as a campus police officer. (14) "Insurance Carrier" means any entity, corporation, campus or professional association as defined in G.S. 58 and who is authorized by the North Carolina Commissioner of Insurance to do business in North Carolina as an insurance carrier or underwriter. (15) "Misdemeanor" means those criminal offenses not classified under the laws, statutes, or ordinances as felonies. Misdemeanor offenses are classified by the Criminal Justice Education and Training Standards Commission. (a) "Class A Misdemeanor" is defined in 12 NCAC 09A .0103(22)(a). (b) "Class B Misdemeanor" is defined in 12 NCAC 09A .0103(22)(b). (16) "On Duty" means that period of time which the commissioned campus police officer is being compensated for his or her services by the officer's employer and ending once the officer's compensation for his duties terminates. Authority G.S. 74G. SECTION .0200 - COMMISSIONING 12 NCAC 02J .0201 MINIMUM STANDARDS FOR CAMPUS POLICE OFFICERS Every campus police officer must meet the following requirements to obtain and maintain a campus police commission: (1) be a citizen of the United States; (2) be a high school graduate or have passed the General Educational Development Test indicating high school equivalency. A specific exception to this educational requirement is granted to: (a) an applicant who was the holder of a valid campus police commission on June 30, 1972; or (b) an applicant properly certified as a law enforcement officer by the Criminal Justice Education and Training Standards Commission on March 14, 1973; In either case, the exception will not be applicable if the applicant has had more than a 12 month break in service; (3) have attained a score of not less than 80 percent on a written examination of basic knowledge of laws of arrest, search, and investigation, and of these Rules to be administered by a representative of the North Carolina Department of Justice; Note: All examination questions will be based on the book Arrest, Search, and Investigation as published by and available from the Institute of Government, the University of North Carolina at Chapel Hill, Chapel Hill, North Carolina 27514, and these Rules. Applicants will be advised in writing of test dates and sites at least five days prior to the examination. In the event an applicant fails to successfully complete the examination, only one re-test will be allowed. Upon an applicant's failure to successfully complete the second test, the applicant must successfully complete accredited Basic Law Enforcement Training coursework prior to re-testing; (4) meet the minimum standards for criminal justice officers established by the North Carolina Criminal Justice Education and Training Standards Commission, appearing in Title 12, Chapter 09 of the North Carolina Administrative Code; which Standards are hereby incorporated by reference, and shall automatically include any later amendments and editions of the referenced material; (5) applicants who do not hold general certification as a law enforcement officer issued by the Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission, must submit to and successfully complete a polygraph examination administered by the State Bureau of Investigation; (6) be at least 20 years of age; (7) have produced a negative result on a drug screen administered according to the following specifications: (a) the drug screen shall be a urine test consisting of an initial screening test using an immunoassay method and a confirmatory test on an initial positive test result using a gas chromatography mass spectrometry (GC/MS) or other reliable initial and confirmatory tests as may, from time to time, be authorized or mandated by the Department of Health and Human Services for Federal Workplace Drug Testing Programs; (b) a chain of custody shall be maintained on the specimen from collection to the eventual discarding of the specimen; (c) the drugs whose use shall be tested for shall include at least cannabis, cocaine, phencyclidine (PCP), opiates and amphetamines or their metabolites; (d) the test threshold values established by the Department of Health and Human Services for Federal Workplace Drug Testing Programs are hereby incorporated by reference, and shall automatically PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 692 include any later amendments and editions of the referenced material; (e) the test conducted shall be not more than 60 days old, calculated from the time when the laboratory reports the results to the date of employment; (f) the laboratory conducting the test must be certified for federal workplace drug testing programs, and must adhere to applicable federal rules, regulations and guidelines pertaining to the handling, testing, storage and preservation of samples, except that individual agencies may specify other drugs to be tested for in addition to those drugs set out in Subitem (7)(c) of this Rule; and (g) every agency head shall be responsible for making adequate arrangements for the services of a Medical Review officer (MRO) for the purpose of review of drug tests reported by the laboratory and such officer shall be a licensed physician; (8) notify the Campus Police Administrator in writing of all criminal offenses for which the officer is arrested, pleads no contest, pleads guilty, or is found guilty of. This shall include all criminal offenses except minor traffic offenses and shall specifically include any offense of Driving Under the Influence (DUI) or Driving While Impaired (DWI). A minor traffic offense is defined, for purposes of this Item, as an offense where the maximum punishment allowable is 60 days or less. The notifications required must specify the nature of the offense, the court in which the case was handled and the date of the conviction. The notifications must be received by the Campus Police Administrator within 30 days of the date of the case disposition. Applicants and officers required to notify the Campus Police Administrator under this Item shall also make the same notification to their Department Head within 20 days of the date the case was disposed of in court. However, the notification to the Campus Police Administrator does not excuse the officer from making an independent notification otherwise required by either the Criminal Justice Education and Training Standards Commission or the Sheriffs' Education and Training Standards Commission. The notifications required by this section shall be required while the application is pending as well as, subsequent to a commission being issued; (9) be of good moral character as referred to in G.S. 17C-10(c); (10) not having committed or been convicted of a crime or crimes as specified in 12 NCAC 02J .0209(b), such that the applicant would be ineligible for commissioning as a Campus Police officer. Authority G.S. 74G-4. 12 NCAC 02J .0202 APPLICATION FOR CAMPUS POLICE AGENCY Each campus police agency shall complete and submit to the Campus Police Administrator the following items and documentation: (1) an application form; (2) articles of incorporation or other agency originating documentation, which specifies the agency's law enforcement functions; (3) names and addresses for all corporate officers and directors; (4) a copy of the campus police agency's insurance policy, or if self insured, the certificate of self insurance (applicable to non-public entities only); (5) a criminal history record check on each corporate officer and director of the corporation through the clerk of superior court in each county where the individual resided or maintained a residence over a five year period prior to such application. However, this Rule does not require the agency to submit a criminal history record check on currently commissioned campus police officers; (6) the appropriate fees as required by 12 NCAC 02J .0205; (7) a listing of the names and addresses of all institutions for which the campus police agency has contracted with to provide services. Authority G.S. 74G. 12 NCAC 02J .0203 APPLICATION FOR CAMPUS POLICE OFFICER The application for a campus police officer must contain: (1) a written request from the Department Head of the campus, or agency requesting that a campus police commission be issued to the applicant. An oral request will not satisfy this requirement; and (2) if the applicant holds general certification issued by the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission, the application must contain the following: PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 693 (a) Medical History Statement (Form F-1); (b) Medical Examination Report (Form F-2); (c) Two complete fingerprint cards; (d) One digital photograph of applicant, not more than three months old, in JPEG format to be emailed to the Campus Police Administrator for picture I.D; (e) Proof of a negative drug screen as specified in 12 NCAC 02J .0201(7); (f) Proof of successful completion of all in-service training requirements specified by the North Carolina Criminal Justice Education and Training Standards Commission, which standards are hereby incorporated by reference and shall automatically include any later amendments and editions of the referenced material; (g) Authorization for release of records (CP-1); (h) Drug Screen Consent Form (CP-2); (i) Appropriate fees as specified in 12 NCAC 02J .0205; (j) An appropriate background investigation as specified in 12 NCAC 02J .0204 (Form F-8); and (k) Personal History Statement (Form F- 3) not more than three months old; or (3) if the applicant does not hold general certification, the application must contain the following: (a) Medical History Statement (Form F-1); (b) Medical Examination Report (Form F-2); (c) Personal History Statement not more than three months old, (Form F-3); (d) Report of Qualification Appraisal Interview (Form F-4); (e) Proof of High School graduation or GED; (f) Two complete fingerprint cards; (g) One digital photograph of applicant, not more than three months old, in JPEG format to be emailed to the Campus Police Administrator for picture I.D; (h) Proof of satisfactory completion of a Criminal Justice Education and Training Standards Commission accredited basic law enforcement training course; (i) Proof of a negative drug screen; (j) Authorization for Release of Records (CP-1); (k) Drug Screen Consent Form (CP-2); (l) Appropriate fees as specified in 12 NCAC 20J .0205; and (m) Background investigation as specified in 12 NCAC 02J .0204 (Form F-8); or All other documentation currently valid in the commissioned officer's file will be transferred to a new file for the officer under Chapter 74G. Authority G.S. 74G. 12 NCAC 02J .0204 BACKGROUND INVESTIGATION (a) Any campus police agency contemplating the commissioning of an applicant as a campus police officer shall, prior to employment, complete a background investigation on such applicant. The investigation shall examine the applicant's character traits and habits relevant to performance as a campus police officer and shall determine whether the applicant is of good moral character as referred to in G.S. 17C-10(c). The investigation shall be submitted to the Campus Police Administrator utilizing the Commission-approved Form F-8 (Summary of Background Investigation). (b) Prior to the investigation, the applicant shall complete a Personal History Statement (Form F-3) to provide a basis for the investigation. (c) The Department Head shall conduct the applicant's background investigation. The Department Head shall document the results of the investigation and shall include in the report of investigation: (1) biographical data; (2) family data; (3) scholastic data; (4) employment data; (5) interviews with the applicant's references; and (6) a summary of the Department Head's findings and conclusions regarding the applicant's moral character as referred to in G.S. 17C-10(c). (d) The agency may use the method of documenting the results of the background investigation it deems most appropriate to its needs. However, the campus police program's "Summary of Background Investigation" form shall be used as a guide for minimum information collected and recorded by the investigator. (e) In the event that an individual applying for commission as a campus police officer is the Department Head, he shall not conduct his own background investigation. The investigation must be performed by a city or county agency in the county where the campus police agency has jurisdiction, or contract with a private investigator. Authority G.S. 74G-4. 12 NCAC 02J .0205 FEE PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 694 (a) Upon notification that an application for a campus police agency certification or a campus police officer commission has been approved, the applicant shall forward a certified check or money order made out to the North Carolina Department of Justice to the: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 (b) The following fees shall be due and payable prior to the issuance of campus police agency certification or a campus police officer commission. (1) Application for certification as a campus police agency - $250.00. (2) Annual renewal of certification as a campus police agency - $200.00. (3) Application for reinstatement of certification as a campus police agency - $1,000.00. (4) Application for commission as a campus police officer - $100.00. (5) Annual renewal of commission as a campus police officer - $50.00. (6) Application for reinstatement of commission as a campus police officer - $150.00. (c) Currently commissioned campus police officers will be required to submit the Application for Commission as a campus police officer fee as set forth in Subparagraph (b)(4) of this Rule. Authority G.S. 74G-12. 12 NCAC 02J .0206 OATH Every campus police officer so appointed shall, before entering upon the duties of his office, take and subscribe to the oath provided for in G.S. 11-11 before an officer authorized by G.S. 11-7.1 to administer oaths, and shall forward a copy of the executed oath within 10 days of the day on which the oath is subscribed to the Campus Police Administrator. Authority G.S. 11-11; 74G-6. 12 NCAC 02J .0207 LIABILITY INSURANCE (a) Any applicant for a non-public campus police agency certification must file with the Campus Police Administrator, either a copy of the liability insurance policy or a certificate of self insurance, at the following address: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 (b) Any notice of cancellation by an insurance carrier shall be delivered by certified mail, return receipt requested, to the following address: Campus Police Administrator Campus Police Program 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Telephone: (919) 716-6470 Authority G.S. 74G-3. 12 NCAC 02J .0208 SUSPENSION, REVOCATION OR DENIAL OF AGENCY CERTIFICATION (a) A campus police agency certification may be suspended, revoked or denied upon a finding that the agency has: (1) failed to pay any required fees; (2) failed to produce or maintain a copy of a liability insurance policy or a certificate of self insurance; (3) failed to meet any of the requirements for certification provided in 12 NCAC 02J .0202; (4) failed to provide any of the required documentation pursuant to 12 NCAC 02J .0202; (5) failed to allow for the reasonable inspection of the Campus Police agency records pursuant to G.S. 74G-4(3); (6) failed to ensure compliance by the agency's campus police officers of any and all in-service training requirements as specified by 12 NCAC 09E .0100; (7) failed to submit the required in-service training compliance reports as required by 12 NCAC 09E .0100; (8) failed to submit any and all reports, notification or other information required or requested by the Campus Police Administrator; (9) knowingly made a material misrepresentation of any information required for certification or commissioning from the Campus Police Administrator or the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission; (10) knowingly and willfully by any means of false pretense, deception, defraudation, misrepresentation or cheating whatsoever, obtained or attempted to obtain credit, training, certification or commissioning from the Campus Police Administrator of the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission; (11) aided another in obtaining or attempting to obtain credit, training, or certification from the Campus Police Administrator, the North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriff's Education and Training Standards Commission by means of deceit, fraud or misrepresentation or cheating; or (12) failed to ensure that any employee not commissioned as a campus police officer is PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 695 not violating a prohibition set forth in 12 NCAC 02J .0302. (b) An agency whose certification has been suspended, revoked, or denied may appeal the action in accordance with the provisions of G.S. 150B. Authority G.S. 74G-4. 12 NCAC 02J .0209 SUSPENSION, REVOCATION, OR DENIAL OF OFFICER COMMISSION (a) A campus police commission shall be revoked or denied upon a finding that the officer has committed or been convicted of: (1) any felony (unless pardoned by the President of the United States or a state Governor); or (2) any crime for which the authorized punishment could have been imprisonment for more than two years. (b) The Attorney General, or his designee, may revoke, suspend, or deny the commission of a campus police officer when the Campus Police Administrator finds that the applicant for commission or the commissioned campus police officer has committed or been convicted of: (1) a crime or unlawful act as defined in 12 NCAC 09A .0103(22)(b) as a Class B misdemeanor and which occurred after the date of initial certification; (2) a crime or unlawful act as defined in 12 NCAC 09A .0103(22)(b) as a Class B misdemeanor within a five-year period prior to the date of application for certification; (3) four or more crimes or unlawful acts as defined in 12 NCAC 09A .0103(22)(b) as Class B misdemeanors regardless of the date of commission or conviction; (4) four or more crimes or unlawful acts as defined in 12 NCAC 09A .0103(22)(a) as a Class A misdemeanor, each of which occurred after the date of initial certification; or (5) four or more crimes or unlawful acts as defined in 12 NCAC 09A .0103(22)(a) as a Class A misdemeanor except the applicant may be certified if the last conviction or commission occurred more than two years prior to the date of the application for certification. (c) In addition, a campus police commission shall be revoked or denied upon a finding that the officer: (1) lacks good moral character as referred to in G.S. 17C-10(c); (2) fails to meet any of the required minimum standards as specified in 12 NCAC 02J .0203; (3) has been terminated from employment with the campus police agency for which the officer is commissioned or is no longer employed with such campus police agency; (4) has committed any act prohibited by 12 NCAC 02J .0302; or (5) termination, suspension, or revocation of the certification of the campus police agency with which the officer is commissioned. (d) An officer whose certification has been suspended, revoked, or denied may appeal the action in accordance with the provisions of G.S. 150B. Authority G.S. 74G-4. 12 NCAC 02J .0210 PERIOD OF SUSPENSION, REVOCATION OR DENIAL (a) When the Attorney General, or his designee, suspends or denies the commission of a campus police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may either reduce or suspend the period of sanction under 12 NCAC 02J .0211(b) or substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is: (1) commission or conviction of a crime other than those listed in Paragraph (a) of Rule 12 NCAC 02J .0208; (2) refusal to submit to the applicant or lateral transferee drug screen required by 12 NCAC 02J .0201(7); (3) production of a positive result on a drug screen reported to the Campus Police Administrator where the positive result cannot be explained to the Campus Police Administrator's satisfaction; (4) material misrepresentation of any information required for campus police commissioning; (5) obtaining, attempting to obtain, aiding another person to obtain, or aiding another person attempting to obtain credit, training or commissioning as a campus police officer by any means of false pretense, deception, defraudation, misrepresentation or cheating; or (6) failure to make either of the notifications as required by 12 NCAC 02J .0201(8). (b) When the Attorney General, or his designee, suspends or denies the commission of a campus police officer, the period of sanction shall be continued so long as the stated deficiency, infraction, or impairment continues to exist, where the cause of sanction is: (1) failure to meet or satisfy all basic training requirements; (2) failure to meet or maintain the minimum standards of employment specified in 12 NCAC 02J .0201(4); (3) discharge from a criminal justice agency for impairment of physical or mental capabilities; or (4) failure to meet the in-service training requirements as prescribed by the North Carolina Criminal Justice Education and Training Standards Commission. PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 696 Authority G.S. 74G-4. 12 NCAC 02J .0211 SUMMARY SUSPENSIONS (a) The Campus Police Administrator, through designation by the Attorney General, may summarily suspend the commission of the campus police officer before the commencement of proceedings for suspension or revocation of the certification when, in the opinion of the Campus Police Administrator, the public health, safety, or welfare requires this emergency action of summary suspension. The Campus Police Administrator has determined that the following conditions specifically affect the public health, safety, or welfare, and therefore, the Campus Police Administrator may utilize summary suspension when: (1) the person has committed or been convicted of a violation of the criminal code which would require a permanent revocation or denial of certification; or (2) the commissioned campus police officer fails to satisfactorily complete the minimum in-service training requirements as prescribed in Title 12, Chapter 09 of the North Carolina Administrative Code. (b) A summary suspension shall be effective on the date specified in the order of the summary suspension or upon the service of the certified copy of the order at the last known address of the person, whichever is later. The summary suspension shall remain in effect during the proceedings. (c) Upon verbal notification by the Campus Police Administrator that the campus police commission of any officer is being summarily suspended by written order, the Department Head of the campus police agency shall take such steps as are necessary to ensure that the officer does not perform duties requiring a campus police commission through the Attorney General. Authority G.S. 74G-4; 74G-10. SECTION .0300 - CONDUCT OF COMMISSIONED POLICEMEN 12 NCAC 02J .0301 TENURE A campus police officer commission or campus police agency certification shall remain in effect until: (1) The Attorney General directs termination; (2) The campus police officer ceases to be employed by a campus police agency; (3) The required liability insurance is terminated or suspended by the agency's insurance carrier; (4) The need for a commission no longer exists; (5) Evidence is presented that the person has committed an act which would have originally caused denial of the application or an act prohibited by Rule .0304 of this Section; or (6) The Criminal Justice Education and Training Standards Commission suspends or revokes an officer's certification for cause. Authority G.S. 74G-4; 74G-6; 74G-10. 12 NCAC 02J .0302 PROHIBITED ACTS In addition to the prohibited acts set forth elsewhere in these Rules and in Chapter 74G, the following acts are prohibited and may result in civil or criminal action or both: (1) use of excess force while in the performance of their official duties; (2) carrying a concealed weapon except: (a) when on his own business property or at home; (b) in conformity with G.S. 74G-6; (3) activating or operating a red light in or on any vehicle in this State unless such vehicle is exempted from the provisions of G.S. 20- 130.1(b); (4) activating or operating a blue light in or on any vehicle in this State except: (a) when operating a motor vehicle used primarily by campus police in the performance of their official duties; (b) when in property jurisdiction limitations specifically described under G.S. 74G-6; or (c) when in continuous or immediate pursuit of a person for an offense committed upon real property owned by or in the possession or control of their employer or real property or in the possession and control of a person who has contracted with the employer to provide on-site police security personnel services for the property; or (d) during the transportation of an arrestee, which the campus policy agency has taken into custody; (5) activating or operating a siren when operating any motor vehicle used primarily by any campus police agency in the performance of their official duties when outside of the property jurisdiction limitations specifically described under G.S. 74G-6 unless in immediate and continuous pursuit; (6) representing in any manner at any time that he is a federal, state, county, or municipal law enforcement officer, unless the campus police officer is dually certified as one of the classifications listed in this Rule; (7) impeding traffic, stopping motorists or pedestrians, or in any manner imposing or attempting to impose his will upon another person as police authority unless: (a) he is on the property specifically described under G.S. 74G-6; or (b) when in immediate and continuous pursuit of any person for an offense which occurred within the property PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 697 jurisdiction limitations specifically described under G.S. 74G-6; (8) using or attempting to use authority granted under a campus police commission pursuant to this Subchapter outside the political boundaries of North Carolina; or (9) violating Rule .0304 of this Section. Authority G.S. 74G-4; 74G-6. 12 NCAC 02J .0303 TRANSFERS No individual commissioned as a campus police officer can transfer his campus police commission from one employing campus police agency to another. Authority G.S. 74G-4; 74G-6. 12 NCAC 02J .0304 BADGES, UNIFORMS, VEHICLES AND OFFICER IDENTIFICATION (a) Badges: (1) All campus police officers shall, when on duty, wear a badge bearing the name of the certified campus police agency and the general title of Campus Police. (2) The badge is to be carried at all times by the campus police officer. The badge shall always be worn in plain view, except in situations where the officer's weapon is concealed under the provisions set forth in Rule .0302 of this Section. (3) No identification card shall be issued to or possessed by any campus police officer except in the form of identification issued to the officer by the Attorney General. (b) Uniforms: (1) All campus police officers shall, when on duty, wear the uniform of the campus police agency unless directed to wear other attire by the Department Head. (2) When wearing civilian attire, the campus police officer shall comply with 12 NCAC 02I .0304(a). (3) Those campus police agencies which employ both campus police commissioned and non-commissioned security personnel shall provide the commissioned campus police officers with a uniform of a different color that would clearly distinguish the campus police officer from other employees of the agency. (4) The uniform of the campus police officer shall bear shoulder patches that contain: (A) the term "Campus Police,"; and (B) the name of the campus police agency. (c) Vehicles: (1) Each marked vehicle used by a campus police agency subject to this Rule shall prominently display the agency name and the agency classification of " Campus Police". (2) The Department Head shall ensure that employees who have not been commissioned as campus police officers do not operate any marked vehicle used by the campus police agency. (3) The Department Head shall ensure that employees who are not commissioned as a campus police officer do not operate any campus police vehicle with a blue light contained therein. (4) The Department Head shall ensure that any marked campus police agency vehicle is not operated outside of those property jurisdiction limitations set forth in G.S. 74G-6, unless such operation is performed by an on-duty officer in the performance of his official duties and authorized by the Department Head. (d) All campus police agencies shall comply with the provisions of this Rule for badges, vehicles, uniforms, and other equipment no later than January 1, 2006. Authority G.S. 74G-7. TITLE 21 – OCCUPATIONAL LICENSING BOARDS CHAPTER 02 – BOARD OF ARCHITECTURE Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Architecture intends to adopt the rule cited as 21 NCAC 02 .0220 and amend the rules cited as 21 NCAC 02 .0205-.0206, 0208-.0210, .0213, .0217, .0302-.0303, .0901, .0904, .0906, .0910. Proposed Effective Date: March 1, 2006 Public Hearing: Date: November 16, 2005 Time: 1:00 p.m. Location: NC Board of Architecture, 127 W. Hargett Street, Suite 304, Raleigh, NC Reason for Proposed Action: To clarify submission requirements for plans and specifications done by architects; to clarify license renewal process and unprofessional conduct rules for active architects and those on emeritus status; to clarify continuing education requirements; to clarify architectural firm name and to adopt a new rule to allow non-resident firms to respond to Request for Proposals prior to firm registration. To revise examination and continuing education rule provisions that are no longer applicable because phase in periods have expired. To bring exam score retention in line with National Council of Architecture Registration Boards standards PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 698 Procedure by which a person can object to the agency on a proposed rule: Any objections and its reason may be submitted, in writing, until the expiration of the comment period on January 3, 2006 to Cathe Evans, Executive Director, NC Board of Architecture, 127 W. Hargett Street, Suite 304, Raleigh, NC 27601. Comments may be submitted to: Cathe Evans, Executive Director, NC Board of Architecture, 127 W. Hargett Street, Suite 304, Raleigh, NC 27601, email cathe@ncbarch.org. Comment period ends: January 3, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact State Local Substantive (>$3,000,000) None SECTION .0200 - PRACTICE OF ARCHITECTURE 21 NCAC 02 .0205 NAME OF FIRM (a) A licensee shall not engage in the practice of architecture under a professional or firm name which is misleading or deceptive in any way as to the legal form of the firm or the persons who are partners, officers, members, or shareholders in the firm. Examples of misleading or deceptive firm names include but are not limited to the following: (1) Use of the plural in any form when the number of architects in a firm does not warrant such use or, (2) Use of the name of an employee unless that employee is a partner, member or shareholder or, (3) Use of the name of a deceased architect in order to benefit from his reputation, when that architect was not a former partner, officer, member or shareholder in the present firm, or (4) Use of a name which is deceptively similar to that of existing firm name. (5) Use of a fictitious name by a sole proprietor or partnership or limited liability partnership (b) Names of all architectural firms, whether sole proprietorships, partnerships, professional limited liability companies, registered limited liability partnerships or professional corporations, shall be approved in writing by the Board before adopted or used by such firm. Provided, however, that this Rule shall not be construed to require any firm to seek approval of, or to change, any name duly adopted in conformity with Board rules in effect at the date of such adoption other than a change that results in a violation of Subparagraph (a)(1) of this Rule. (c) Only firms established pursuant to 21 NCAC 02 .0214 (professional corporations), 21 NCAC 02 .0215 (qualified foreign corporations), or 21 NCAC 02 .0218 (professional limited liability companies) may engage in the practice of architecture under a fictitious name; provided, however, a registered firm in good standing having obtained written approval of its fictitious name prior to the adoption of this Rule and having continuously used such name may continue to use the previously approved name only for so long as: (1) said name complies with Paragraphs (a) and (b) of this Rule, (2) the firm's use of said name is continuous, and (3) the firm complies with any applicable statutes pertaining to the registration of fictitious names, including but not limited to G.S. 66, Article 14. Authority G.S. 55B-5; 83A-6; 83A-9; 83A-12. 21 NCAC 02 .0206 REQUIREMENT FOR AND USE OF PROFESSIONAL SEAL (a) As more fully set out in this Rule, an architect must seal his work whether or not the work is for an exempt project. An architect shall not sign nor seal drawings, specifications, reports or other professional work which were not prepared by the architect or under his direct supervision. (1) Provided, however, that the architect may sign or seal those portions of the professional work that: (A) were prepared by or under the direct supervision of persons who are registered under the architecture registration laws of this jurisdiction if the architect has reviewed in whole or in part such portions and has either coordinated their preparation or integrated them into his or her work; and (B) are not required by law to be prepared by or under the direct supervision of an architect if the architect has reviewed and adopted in whole or in part such portions and has integrated them into his or her work. (2) Individual Seal Design. Every licensed architect shall have an individual seal which shall be composed of two concentric circles with outer and inner circle diameters of PROPOSED RULES 20:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2005 699 approximately 12 inches and 1 inch respectively. 1.5 inches and 1 inch respectively. The architect's name and place of business shall be between the inner and outer circles. The words "Registered Architect, North Carolina" shall be along the inside perimeter of the inner circle. The architect's North Carolina registration number shall be in the center of the inner circle. The signature of the individual named on the seal is a required part of an individual seal and a seal image lacking said signature is incomplete and shall not be considered a "seal" for purposes of these Rules. (3) Corporate Seal Design. Every corporation which shall have obtained from the Board a certificate for corporate practice shall have a corporate seal, which shall be composed of two concentric circles with outer and inner circle diameters of approximately 12 inches and 1 inch respectively. 1.5 inches and 1 inch respectively. The Architectural Corporation's approved North Carolina name and place of business shall be between the inner and outer circles. The words "Registered Architectural Corporation, North Carolina" shall be along the inside perimeter of the inner circle. The corporation's North Carolina registration number shall be in the center of the inner circle. (4) Seal Types. The seal required for use on opaque original contract documents technical submissions not intended for duplication shall be of a type which will produce an impression facsimile of the seal, or a rubber stamp which will produce an ink facsimile of the seal. The seal required for use on transparent original contract documents technical submissions intended for duplication shall be of a type which will produce an ink facsimile of the seal such as a rubber stamp, or computer generated type. a substantially similar electronic or digital representation of the design. The use of pre-printed documents bearing a pre-printed facsimile of the seal is prohibited. Technical subm |
OCLC number | 13686205 |