North Carolina register, July 1998 - present

              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
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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.
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(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
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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.
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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
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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
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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
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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:
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(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
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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
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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.
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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
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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
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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