North Carolina register, July 1998 - present

              NORTH CAROLINA
REGISTER
Volume 19, Issue 14
Pages 1130 - 1195
January 18, 2005
This issue contains documents officially filed
through December 22, 2004.
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, Publication Coordinator
Linda Dupree, Editorial Assistant
Julie Brincefield, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
Summary of Notice of Intent to Redevelop .............1130
A Brownfields Property, Southeast Gateway
Ventures, LLC
Summary of Notice of Intent to Redevelop .............1131
A Brownfields Property, Blue Devil
Ventures, LLC
Narrow Therapeutic Index Drugs Designated by.....1132
The NC Secretary of Human Resources
II. PROPOSED RULES
Agriculture & Consumer Services
Board of Agriculture ............................................1133 - 1134
Environment and Natural Resources
Wildlife Resources Commission ..........................1134 - 1143
Licensing Boards
Pharmacy, Board of..............................................1143
Real Estate Commission.......................................1143 - 1157
State Personnel
State Personnel Commission ................................1157 - 1158
III. TEMPORARY RULES
Health and Human Services
Commission for Health Services ..........................1171 - 1174
Division of Facility Services ................................1159 - 1171
Justice
Criminal Justice Education & Training ...............1174 - 1175
Standards Commission
Licensing Boards
Medical Board......................................................1175 - 1177
IV. RULES REVIEW COMMISSION.......................1178 - 1186
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions............................................1187 - 1192
Text of Selected Decisions
04 EHR 0996........................................................1193 - 1195
For the CUMULATIVE INDEX to the NC Register go to:
http://ncoah.com/register/CI.pdf
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.
IN ADDITION
19:14 NORTH CAROLINA REGISTER January 18, 2005
1130
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.
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Southeast Gateway Ventures, LLC
Pursuant to N.C.G.S. § 130A-310.34, Southeast Gateway Ventures, LLC has filed with the North Carolina Department of
Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Forsyth
County, North Carolina. The Property consists of 46.45 acres and is located at 1100, 1122 and 1315 S. Main Street, 1019, 1116 and
1100 S. Marshall Street, 24 and 30 W. Salem Avenue, 212 Stafford Street, and 1198, 1405 and 1480 S. Broad Street. Environmental
contamination exists on the Property in soil, groundwater and surface water. Southeast Gateway Ventures, LLC has committed itself
to make no use of the Brownfields Property other than for a mixed-use development featuring commercial, residential, institutional,
recreational and open space uses with associated impervious surface parking areas; impose various land use restrictions; and:
1) remediate underground storage tank ("UST") contamination at 1100 S. Main Street, 1100 South Marshall Street and 30
West Salem Street under the oversight of DENR's UST Section; and
2) to the extent DENR requires, cover with clean fill or conduct additional soil sampling in areas of the Property lacking
impervious ground cover and proposed for benches, picnic tables, recreation and sports sites, and other gathering sites.
Additional soil sampling shall also be conducted in the areas ultimately proposed for outdoor playgrounds and athletic/recreational
fields at the site of the school planned for 1480 S. Broad Street.
The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR
and Southeast Gateway Ventures, LLC which in turn includes (a) a map showing the location of the Property, (b) a description of the
contaminants involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use
of the Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in
accordance with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the North
Carolina Room of the Forsyth County Central Library, 660 West Fifth Street, Winston-Salem, NC 27101 by contacting Jerry Carroll
at (336) 727-2264 ext. 9; or at 401 Oberlin Rd., Raleigh, NC 27605 (where DENR will provide auxiliary aids and services for persons
with disabilities who wish to review the documents) by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at
(919) 733-2801, ext. 336.
Written public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of
general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later.
Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins.
All such comments and requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
IN ADDITION
19:14 NORTH CAROLINA REGISTER January 18, 2005
1131
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Blue Devil Ventures, LLC
Pursuant to N.C.G.S. § 130A-310.34, Blue Devil Ventures, LLC has filed with the North
Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property
("Property") in Durham, Durham County, North Carolina. The Property consists of 9.13 acres and is located at 601, 605, 700, 701 &
710 West Main Street, and 605 & 609 West Morgan Street. Blue Devil Ventures, LLC has committed itself to mixed residential and
commercial redevelopment of the Property.
The property is bounded to the north by West Morgan Street, across which is the first phase of Blue Devil Ventures, LLC's
West Village project, completed in 2000 from other historic Liggett Group structures and consisting of mixed commercial/residential
properties. To the south of the Property lie Southern Railroad Company tracks; to the east a parking lot also owned by West Village
and tracks of the Norfolk & Western Railway Company; and to the west South Duke Street, across which lies commercial properties,
including Brightleaf Square. The status of on-site environmental contamination will be known after Blue Devil Ventures, LLC
purchases the Property, which is expected to occur if and when the Brownfields Agreement associated with this project goes into
effect, and samples its groundwater and soil to DENR's satisfaction.
The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed provisional Brownfields Agreement
between DENR and Blue Devil Ventures, LLC which in turn includes (a) a map showing the location of the Property, (b) the above-stated
description of the intended future use of the Property, and (c) proposed investigation and remediation; and (2) a proposed
provisional Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35.
The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the reference section at the main location
of the Durham County Public Library, 300 N. Roxboro St, Durham, NC 27701, telephone number (919) 560-0100, or by contacting
Jennifer Malloy at the Durham Public Library's Administration offices, telephone number (919) 560-0163; or at 401 Oberlin Rd.,
Raleigh, NC 27605 by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 733-2801, ext. 336, where
DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written public
comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general circulation
serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Written requests
for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. All such
comments and requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
If Blue Devil Ventures, LLC samples the Property to DENR's satisfaction and a superseding Brownfields Agreement and
Notice of Brownfields Property are agreed upon, another Notice of Intent to Redevelop a Brownfields Property will be filed and
another Summary of Notice of Intent to Redevelop a Brownfields Property published, followed by an additional public comment
period. Though the unsampled state of the Property prevents the current Notice of Intent to Redevelop a Brownfields Property from
including an element required by N.C.G.S. § 130A-310.34 (a), i.e., a description of the contaminants involved and their concentrations
in the media of the Property, any superseding Brownfields Agreement and Notice of Brownfields Property agreed upon will include
that element and may modify the remediation to be performed by Blue Devil Ventures, LLC.
IN ADDITION
19:14 NORTH CAROLINA REGISTER January 18, 2005
1132
NARROW THERAPEUTIC INDEX DRUGS DESIGNATED
BY THE NORTH CAROLINA SECRETARY
OF HUMAN RESOURCES
Pursuant to N.C.G.S. G.S. 90-85.27(4a), this is a revised publication from the North Carolina Board of Pharmacy of narrow
therapeutic index drugs designated by the North Carolina Secretary of Human Resources upon the advice of the State Health Director,
North Carolina Board of Pharmacy, and North Carolina Medical Board:
Carbamazepine: all oral dosage forms
Cyclosporine: all oral dosage forms
Digoxin: all oral dosage forms
Ethosuximide
Levothyroxine sodium tablets
Lithium (including all salts): all oral dosage forms
Phenytoin (including all salts): all oral dosage forms
Procainamide
Theophylline (including all salts): all oral dosage forms
Warfarin sodium tablets
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1133
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 2 – DEPARTMENT OF AGRICULTURE &
CONSUMER SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Board of Agriculture intends to amend the rules cited as 02
NCAC 52A .0111; 52D .0101.
Proposed Effective Date: June 1, 2005
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): Any person may
request a public hearing on the proposed rules by submitting a
request in writing no later than February 2, 2005, to David S.
McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service
Center, Raleigh, NC 27699-1001.
Reason for Proposed Action:
02 NCAC 52A .0111 – To delete incorporation by reference of
obsolete program for eradication of pseudorabies and to adopt
current Federal program.
02 NCAC 52D .0101 – To update adoption by reference of
Federal standards for the meat and poultry inspection program.
Procedure by which a person can object to the agency on a
proposed rule: Any person may object to the proposed rules by
submitting a written statement of objections(s) to David S.
McLeod, Secretary, NC Board of Agriculture, 1001 Mail Service
Center, Raleigh, NC 27699-1001.
Written comments may be submitted to: David S. McLeod,
Secretary, NC Board of Agriculture, 1001 Mail Service Center,
Raleigh, NC 27699-1001, phone (919)733-7125 – x249, fax
(919)716-0105, email david.mcleod@ncmail.net.
Comment period ends: March 21, 2005
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 52 - VETERINARY DIVISION
SUBCHAPTER 52A - RULES AND REGULATIONS
ADOPTED BY REFERENCE
SECTION .0100 - ADOPTIONS BY REFERENCE
02 NCAC 52A .0111 PSEUDORABIES PROGRAM
The North Carolina Pseudorabies Program, as promulgated by
the Swine Diseases Committee, is hereby adopted by reference
in accordance with G.S. 150B-14(c). The document entitled
Pseudorabies Eradication Program Standards, published by the
United States Department of Agriculture, is incorporated by
reference, including subsequent amendments and editions.
Copies of this document may be obtained from the website of
the United States Department of Agriculture at
http://www.aphis.usda.gov/vs/nahps/pseudorabies/prv-prgm-std.
pdf.
Authority G.S. 106-307.3 through 106-307.5.
SUBCHAPTER 52D - MEAT AND POULTRY
INSPECTION
SECTION .0100 - STANDARDS: OFFICIAL MARK
02 NCAC 52D .0101 CERTAIN STANDARDS
ADOPTED: EXCEPTIONS
The Rules, Regulations, Definitions and Standards of the United
States Department of Agriculture governing meat and meat
products inspection, poultry products inspection, voluntary
inspection of poultry and humane methods for slaughtering
animals, Subchapters A, B, C, and D, Title 9, Part 301 et. seq.,
Code of Federal Regulations, Parts 300 through 500, are hereby
incorporated by reference, including subsequent amendments
and editions, subject to the following exceptions:
(1) Conformity of Federal Regulations to North
Carolina Authority is Assumed. To conform
federal regulations to North Carolina
Authority, authority, references in the federal
regulations to the "Secretary of Agriculture,"
the "United States Department of Agriculture,"
the "Food Safety and Inspection Service," its
"Administrator" and "Officer in Charge" shall
be deemed to refer to the corresponding North
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1134
Carolina authority, the "Commissioner of
Agriculture," the "North Carolina Department
of Agriculture and Consumer Services," the
"Meat and Poultry Inspection Service" and its
"Director for Meat and Poultry Inspection
Service" and the "Area Supervisors."
Supervisors," respectively. References to
"interstate commerce" shall be deemed to refer
to "intrastate commerce" within North
Carolina.
(2) Statutory references to the "Federal Meat
Inspection Act" shall be deemed to refer to the
corresponding provisions of the "North
Carolina Meat Inspection Law," Article 49B
and Article 49C of Chapter 106 of the North
Carolina General Statutes.
(3) Statutory references to the "Federal Poultry
Products Inspection Act" shall be deemed to
refer to the corresponding provisions of the
"North Carolina Poultry Products Inspection
Act," Article 49D of G.S. 106.
(4) References to federal marks of inspection,
forms, overtime rates and charges shall be
deemed to refer to the corresponding North
Carolina marks of inspection, forms, and
overtime rates and charges. These rates are
established by the Commissioner pursuant to
G.S. 106-549.69 to cover the cost of providing
the service. Standards of the Federal Food,
Drug and Cosmetic Act incorporated in the
federal regulations are applicable to these
articles.
Copies of the above are available for inspection in the Office
office of the Director of the State Meat and Poultry Inspection
Service and may be obtained at a cost of one hundred and
eighteen dollars ($118.00) per copy by contacting the
Superintendent of Documents, U.S. Government Printing Office,
Washington, D.C. 20402. no cost from the United States
Government Printing Office website at
http://www.access.gpo.gov/nara/cfr/waisidx_04/9cfrv2_04.html
#301.
Authority G.S. 106-549.21; 106-549.22; 106-549.28.
TITLE 15A – DEPARTMENT OF ENVIRONMENT &
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Wildlife Resources Commission intends to amend the rule
cited as 15A NCAC 10D .0103.
Proposed Effective Date: July 1, 2005
Public Hearing:
Date: February 3, 2005
Time: 7:00 p.m.
Location: Courthouse, 100 S. Wright Street, Burgaw, NC
Reason for Proposed Action: The proposed amendment would
make all deer and bear hunting north of the Bear Garden Road,
on Holly Shelter Game Land by permit only.
Procedure by which a person can object to the agency on a
proposed rule: Persons may object by writing to Dr. David
Cobb, 1701 Mail Service Center, Raleigh, NC 27699-1701.
Written comments may be submitted to: Joan Troy, 1701
Mail Service Center, Raleigh, NC 27699-1701
Comment period ends: March 26, 2005
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 10 - WILDLIFE RESOURCES AND
WATER SAFETY
SUBCHAPTER 10D - GAME LANDS
REGULATIONS
SECTION .0100 - GAME LANDS
REGULATIONS
15A NCAC 10D .0103 HUNTING ON GAME LANDS
(a) Safety Requirements. No person while hunting on any
designated game land shall be under the influence of alcohol or
any narcotic drug, or fail to comply with special restrictions
enacted by the National Park Service regarding the use of the
Blue Ridge Parkway where it adjoins game lands listed in this
Rule.
(b) Traffic Requirements. No person shall park a vehicle on
game lands in such a manner as to block traffic, gates or
otherwise prevent vehicles from using any roadway.
(c) Tree Stands. It is unlawful to erect or to occupy, for the
purpose of hunting, any tree stand or platform attached by nails,
screws, bolts or wire to a tree on any game land designated
herein. This prohibition shall not apply to lag-screw steps or
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1135
portable stands that are removed after use with no metal left
remaining in or attached to the tree.
(d) Time and Manner of Taking. Except where closed to
hunting or limited to specific dates by this Chapter, hunting on
game lands is permitted during the open season for the game or
furbearing species being hunted. On managed waterfowl
impoundments, hunters shall not enter the posted impoundment
areas earlier than 4:00 a.m. on the permitted hunting dates, and
hunting is prohibited after 1:00 p.m. on such hunting dates;
decoys shall not be set out prior to 4:00 a.m. and must be
removed by 3:00 p.m. each day. No person shall operate any
vessel or vehicle powered by an internal combustion engine on a
managed waterfowl impoundment. No person shall attempt to
obscure the sex or age of any bird or animal taken by severing
the head or any other part thereof, or possess any bird or animal
which has been so mutilated. No person shall place, or cause to
be placed on any game land, salt, grain, fruit, or other foods
without prior written authorization of the commission or its
agent. A decision to grant or deny authorization shall be made
based on the best management practices for the wildlife species
in question. No person shall take or attempt to take any game
birds or game animals attracted to such foods. No live wild
animals or wild birds shall be removed from any game land.
(e) Definitions:
(1) For purposes of this Section "Eastern" season
refers to seasons set for those counties or parts
of counties listed in 15A NCAC 10B
.0203(b)(1)(A); "Central" season refers to
seasons set for those counties or parts of
counties listed in 15A NCAC 10B
.0203(b)(1)(D); "Northwestern" season refers
to seasons set for those counties or parts of
counties listed in 15A NCAC 10B
.0203(b)(1)(B); "Western" season refers to
seasons set for those counties or parts of
counties listed in 15A NCAC 10B
.0203(b)(1)(C).
(2) For purposes of this Section, "Dove Only
Area" refers to a Game Land on which doves
may be taken and dove hunting is limited to
Mondays, Wednesdays, Saturdays and to
Thanksgiving, Christmas and New Year's
Days within the federally-announced season.
(3) For purposes of this Section, "Three Days per
Week Area" refers to a Game Land on which
any game may be taken during the open
seasons and hunting is limited to Mondays,
Wednesdays, Saturdays and Thanksgiving,
Christmas and New Year's Days. These "open
days" also apply to either-sex hunting seasons
listed under each game land. Raccoon and
opossum hunting may continue until 7:00 a.m.
on Tuesdays, until 7:00 a.m. on Thursdays,
and until midnight on Saturdays.
(4) For purposes of this Section, "Six Days per
Week Area" refers to a Game Land on which
any game may be taken during the open
seasons, except that:
(A) Bears shall not be taken on lands
designated and posted as bear
sanctuaries;
(B) Wild boar shall not be taken with the
use of dogs on such bear sanctuaries,
and wild boar may be hunted only
during the bow and arrow seasons,
the muzzle-loading deer season and
the regular gun season on deer on
bear sanctuaries;
(C) On game lands open to deer hunting
located in or west of the counties of
Rockingham, Guilford, Randolph,
Montgomery and Anson, the
following rules apply to the use of
dogs during the regular season for
hunting deer with guns:
(i) Except for the counties of
Cherokee, Clay, Graham,
Jackson, Macon, Madison,
Polk, and Swain, game birds
may be hunted with dogs.
(ii) In the counties of Cherokee,
Clay, Graham, Jackson,
Macon, Madison, Polk, and
Swain, small game in season
may be hunted with dogs on
all game lands except on
bear sanctuaries.
(iii) Additionally, raccoon and
opossum may be hunted
when in season on Uwharrie
Game Lands;
(D) On bear sanctuaries in and west of
Madison, Buncombe, Henderson and
Polk counties dogs shall not be
trained or allowed to run unleashed
between March 1 and the Monday on
or nearest October 15.
(f) The listed seasons and restrictions apply in the following
game lands:
(1) Alcoa Game Land in Davidson, Davie,
Montgomery, Rowan and Stanly counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season in that
portion in Montgomery county and
deer of either sex may be taken all the
open days of the applicable Deer
With Visible Antlers Season in those
portions in Davie, Davidson, Rowan
and Stanly counties.
(2) Alligator River Game Land in Tyrrell County
(A) Six Day per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
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19:14 NORTH CAROLINA REGISTER January 18, 2005
1136
(C) Bear may only be taken the first three
hunting days during the November
Bear Season and the first three
hunting days during the second week
of the December Bear Season.
(3) Angola Bay Game Land in Duplin and Pender
counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(4) Bachlelor Bay Game Land in Bertie and
Washington counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(5) Bertie County Game Land in Bertie County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(6) Bladen Lakes State Forest Game Land in
Bladen County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season. Deer of
either sex may also be taken the
Saturday preceding Eastern bow
season with bow and arrow and the
Friday preceding the Eastern muzzle-loading
season with any legal weapon
(with weapons exceptions described
in this Paragraph) by participants in
the Disabled Sportsman Program.
(C) Handguns shall not be carried and,
except for muzzle-loaders, rifles
larger than .22 caliber rimfire shall
not be used or possessed.
(D) On the Singletary Lake Tract deer
and bear may be taken only by still
hunting.
(E) Wild turkey hunting on the Singletary
Lake Tract is by permit only.
(F) Camping is restricted to Sep. 1-Feb
28 and April 7- May 14 in areas both
designated and posted as camping
areas.
(7) Broad River Game Land in Cleveland County.
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer with Visible Antlers Season.
(C) Use of centerfire rifles is prohibited.
(8) Brunswick County Game Land in Brunswick
County: Permit Only Area
(9) Buckridge Game Land in Tyrrell County.
(A) Three Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(C) Bear may only be taken the first three
hunting days during the November
Bear Season and the first three
hunting days of the second week of
the December Bear Season.
(10) Bullard and Branch Hunting Preserve Game
Lands in Robeson County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(11) Butner - Falls of Neuse Game Land in
Durham, Granville and Wake counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(C) Waterfowl may be taken only on
Tuesdays, Thursdays and Saturdays;
Christmas and New Year's Days, and
on the opening and closing days of
the applicable waterfowl seasons.
Waterfowl shall not be taken after
1:00 p.m. On the posted waterfowl
impoundments a special permit is
required for all waterfowl hunting
after November 1.
(D) Horseback riding, including all
equine species, is prohibited.
(E) Target shooting is prohibited
(F) Wild turkey hunting is by permit
only.
(12) Cape Fear Game Land in Pender County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(C) Turkey Hunting is by permit only on
that portion known as the Roan Island
Tract.
(13) Caswell Game Land in Caswell County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
Deer of either sex may also be taken
the Friday preceding the Central
muzzle-loading season by
participants in the Disabled
Sportsman Program.
(C) Horseback riding is allowed only
during June, July, and August and on
Sundays during the remainder of the
year except during open turkey and
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1137
deer seasons. Horseback riding is
allowed only on roads opened to
vehicular traffic. Participants must
obtain a game lands license prior to
engaging in such activity.
(D) Bearded or beardless turkeys may be
taken from the Monday on or nearest
to January 15 through the following
Saturday by permit only.
(E) The area encompassed by the
following roads is closed to all quail
and woodcock hunting and all bird
dog training: From Yanceyville
south on NC 62 to the intersection of
SR 1746, west on SR1746 to the
intersection of SR 1156, south on SR
1156 to the intersection of SR 1783,
east on SR 1783 to the intersection of
NC 62, north on NC62 to the
intersection of SR 1736, east on SR
1736 to the intersection of SR 1730,
east on SR 1730 to NC 86, north on
NC 86 to NC 62.
(14) Caswell Farm Game Land in Lenoir County-
Dove-Only Area
(A) Dove hunting is by permit only from
opening day through either the first
Saturday or Labor Day which ever
comes last of the first segment of
dove season.
(15) Catawba Game Land in Catawba County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
last open day of the applicable Deer
With Visible Antlers Season.
(C) Deer may be taken with bow and
arrow only from the tract known as
Molly's Backbone.
(16) Chatham Game Land in Chatham and Harnett
counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(C) Wild turkey hunting is by permit
only.
(D) Horseback riding, including all
equine species, is allowed only during
June, July, and August and on
Sundays during the remainder of the
year except during open turkey and
deer seasons.
(17) Cherokee Game Land in Ashe County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(18) Chowan Game Land in Chowan County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the days of the applicable Deer With
Visible Antlers Season.
(19) Chowan Swamp Game Land in Gates County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(20) Cold Mountain Game Land in Haywood
County
(A) Six Days per Week Area
(B) Horseback riding is prohibited except
on designated trails May 16 through
August 31 and all horseback riding is
prohibited from September 1 through
May 15. This Rule includes all
equine species.
(21) Columbus County Game Land in Columbus
County.
(A) Three Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(22) Croatan Game Land in Carteret, Craven and
Jones counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(C) Waterfowl may be taken only on
Mondays, Wednesdays, Saturdays; on
Thanksgiving, Christmas and New
Year's Days; and on the opening and
closing days of the applicable
waterfowl seasons.
(23) Currituck Banks Game Land in Currituck
County
(A) Six Days per Week Area
(B) Permanent waterfowl blinds in
Currituck Sound on these game lands
shall be hunted by permit only after
November 1.
(C) Licensed hunting guides may
accompany the permitted individual
or party provided the guides do not
possess or use a firearm.
(D) The boundary of the Game Land shall
extend 5 yards from the edge of the
marsh or shoreline.
(E) Dogs shall be allowed only for
waterfowl hunting by permitted
waterfowl hunters on the day of their
hunt.
(F) No screws, nails, or other objects
penetrating the bark shall be used to
attach a tree stand or blind to a tree.
(24) Dare Game Land in Dare County
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1138
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last day of the Deer With Visible
Antlers Season.
(C) No hunting on posted parts of
bombing range.
(D) The use and training of dogs is
prohibited from March 1 through
June 30.
(25) Dupont State Forest Game Lands in
Henderson and Transylvania counties
(A) Hunting is by Permit only.
(B) The training and use of dogs for
hunting except during scheduled
small game permit hunts for squirrel,
grouse, rabbit, or quail is prohibited.
(C) Participants of the Disabled
Sportsman Program may also take
deer of either sex with any legal
weapon on the Saturday prior to the
first segment of the Western bow and
arrow season.
(26) Dysartsville Game Land in McDowell and
Rutherford counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(27) Elk Knob Game Land in Ashe and Watauga
counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(28) Goose Creek Game Land in Beaufort and
Pamlico counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(C) On posted waterfowl impoundments
waterfowl may be taken only on
Mondays, Wednesdays, Saturdays; on
Thanksgiving, Christmas and New
Year's Days; and on the opening and
closing days of the duck hunting
seasons. After November 1, on the
Pamlico Point, Campbell Creek,
Hunting Creek and Spring Creek
impoundments, a special permit is
required for hunting on opening and
closing days of the duck seasons,
Saturdays of the duck seasons, and on
Thanksgiving and New Year's Day.
(D) Camping is restricted to Sep. 1-Feb
28 and April 7- May 14 in areas both
designated and posted as camping
areas.
(29) Green River Game Land in Henderson, and
Polk counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last open day of the applicable Deer
With Visible Antlers Season.
(C) Horseback riding is prohibited except
on designated trails May 16 through-
August 31 and all horseback riding is
prohibited from September 1 through
May 15. This rule includes all equine
species.
(30) Green Swamp Game Land in Brunswick
County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(31) Gull Rock Game Land in Hyde County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(C) On the posted waterfowl
impoundments of Gull Rock Game
Land hunting of any species of
wildlife is limited to Mondays,
Wednesdays, Saturdays;
Thanksgiving, Christmas, and New
Year's Days; and the opening and
closing days of the applicable
waterfowl seasons.
(D) Camping is restricted to Sep. 1-Feb
28 and April 7- May 14 in areas both
designated and posted as camping
areas.
(F) Bear may only be taken the first three
hunting days during the November
Bear Season and the first three
hunting days during the second week
of the December Bear Season on the
Long Shoal River Tract of Gull Rock
Game Land.
(32) Holly Shelter Game Land in Pender County
(A) Three Days per Week Area Area,
except that the area of Holly Shelter
Game Land, east of the Shaw
Highway, south of NC Hwy 53, west
of NC Hwy 50 and north of the Bear
Garden Road, is open to gun deer
hunting and bear hunting by Special
Permit only.
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
Deer of either sex may also be taken
the Friday preceding the Eastern
muzzle-loading season with any legal
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1139
weapon and the Saturday preceding
Eastern bow season with bow and
arrow by participants in the Disabled
Sportsman Program
(C) Waterfowl may be taken on the
opening and closing days of the
applicable waterfowl seasons
regardless of the day of the week on
which they occur.
(D) Camping is restricted to Sep. 1-Feb
28 and April 7- May 14 in areas both
designated and posted as camping
areas.
(E) On that portion of Holly Shelter
Game Land east of the Shaw
Highway, south of NC Hwy 53, west
of NC Hwy 50 and north of the Bear
Garden road, gun deer hunting and
bear hunting is by Special Permit
only.
(33) Hyco Game land in Person County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(34) J. Morgan Futch Game Land in Tyrrell
County, Permit Only Area.
(35) Jordan Game Land in Chatham, Durham,
Orange and Wake counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(C) Waterfowl may be taken only on
Mondays, Wednesdays, Saturdays; on
Thanksgiving, Christmas and New
Year's Days; and on the opening and
closing days of the applicable
waterfowl seasons.
(D) Horseback riding, including all
equine species, is prohibited except
on those areas posted as American
Tobacco Trail and other areas
specifically posted for equestrian use.
Unless otherwise posted, horseback
riding is permitted on posted portions
of the American Tobacco Trail
anytime the trail is open for use. On
all other trails posted for equestrian
use, horseback riding is allowed only
during June, July and August, and on
Sundays the remainder of the year
except during open turkey and deer
seasons.
(E) Target shooting is prohibited.
(F) Wild turkey hunting is by permit
only.
(36) Lantern Acres Game Land in Tyrrell and
Washington counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(C) Wild turkey hunting is by permit
only.
(37) Lee Game Land in Lee County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(38) Linwood Game Land in Davidson County
(A) Six Days per Week Area
(B) Deer of either sex may be taken on all
of the open days of the applicable
Deer With Visible Antlers Season.
(39) Mayo Game Land in Person County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(C) Waterfowl may be taken only on
Tuesdays, Thursdays and Saturdays;
Christmas and New Year's Days, and
on the opening and closing days of
the applicable waterfowl seasons.
(40) Mitchell River Game Land in Surry County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
last six days of the applicable Deer
with Visible Antlers Season.
(C) Horseback riding, including all
equine species, is prohibited except
on designated trails May 16 through
August 31 and all horseback riding is
prohibited from September 1 through
May 15.
(41) Nantahala Game Land in Cherokee, Clay,
Graham, Jackson, Macon, Swain and
Transylvania counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last open day of the applicable Deer
With Visible Antlers Season in that
portion located in Transylvania
County.
(C) Raccoon and opossum may be hunted
only from sunset Friday until sunrise
on Saturday and from sunset until
12:00 midnight on Saturday on Fires
Creek Bear Sanctuary in Clay County
and in that part of Cherokee County
north of US 64 and NC 294, east of
Persimmon Creek and Hiwassee
Lake, south of Hiwassee Lake and
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1140
west of Nottely River; in the same
part of Cherokee County dog training
is prohibited from March 1 to the
Monday on or nearest October 15.
(42) Neuse River Game Land in Craven County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(43) New Lake Game Land in Hyde County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(44) North River Game Land in Currituck and
Camden counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season except
in that part in Camden County south
of US 158 where the season is the last
six open days of the applicable Deer
With Visible Antlers Season.
(C) The boundary of the Game Land shall
extend five yards from the edge of the
marsh or shoreline.
(D) Wild turkey hunting is by permit only
on that portion in Camden County.
(45) Northwest River Marsh Game Land in
Currituck County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(C) The boundary of the Game Land shall
extend five yards from the edge of the
marsh or shoreline.
(46) Pee Dee River Game Land in Anson,
Montgomery, Richmond and Stanly counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(C) Use of centerfire rifles prohibited in
that portion in Anson and Richmond
counties North of US-74.
(47) Perkins Game Land in Davie County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
last open day of the applicable Deer
With Visible Antlers Season.
(48) Pisgah Game Land in Avery, Buncombe,
Burke, Caldwell, Haywood, Henderson,
Madison, McDowell, Mitchell, Transylvania,
Watauga and Yancey counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last open day of the applicable Deer
With Visible Antlers Season except
on that portion in Avery and Yancey
counties and that portion in Haywood
County encompassed by US 276 on
the north, US 74 on the west, and the
Blue Ridge Parkway on the south and
east.
(C) Harmon Den and Sherwood Bear
Sanctuaries in Haywood County are
closed to hunting raccoon, opossum
and wildcat. Training raccoon and
opossum dogs is prohibited from
March 1 to the Monday on or nearest
October 15 in that part of Madison
County north of the French Broad
River, south of US 25-70 and west of
SR 1319.
(49) Pungo River Game Land in Hyde County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(50) Roanoke River Wetlands in Bertie, Halifax
and Martin counties
(A) Hunting is by Permit only.
(B) Vehicles are prohibited on roads or
trails except those operated on official
Commission business or by permit
holders.
(C) Camping is restricted to Sep. 1-Feb
28 and April 7- May 14 in areas both
designated and posted as camping
areas.
(51) Roanoke Sound Marshes Game Land in Dare
County-Hunting is by permit only.
(52) Robeson Game Land in Robeson County
(A) Three Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(53) Sampson Game Land in Sampson County
(A) Three Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(54) Sandhills Game Land in Hoke, Moore,
Richmond and Scotland counties
(A) Three Days per Week Area
(B) The Deer With Visible Antlers season
for deer consists of the open hunting
days from the second Saturday before
Thanksgiving through the third
Saturday after Thanksgiving except
on the field trial grounds where the
gun season is open days from the
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1141
second Monday before Thanksgiving
through the Saturday following
Thanksgiving. Deer may be taken
with bow and arrow on all open
hunting days during the bow and
arrow season, as well as during the
regular gun season. Deer may be
taken with muzzle-loading firearms
on open days beginning the third
Saturday before Thanksgiving
through the following Wednesday,
and during the Deer With Visible
Antlers season.
(C) Gun either-sex deer hunting is by
permit only. For participants in the
Disabled Sportsman Program, either-sex
deer hunting with any legal
weapon is permitted on all areas the
Thursday and Friday prior to the
muzzle-loading season described in
the preceding paragraph. Except for
the deer, opossum, rabbit, and
raccoon seasons specifically indicated
for the field trial grounds in this Rule
and Disabled Sportsman Program
hunts, the field trial grounds are
closed to all hunting during the period
October 22 to March 31.
(D) In addition to the regular hunting
days, waterfowl may be taken on the
opening and closing days of the
applicable waterfowl seasons
(E) Wild turkey hunting is by permit
only.
(F) Dove hunting on the field trial
grounds will be prohibited from the
second Sunday in September through
the remainder of the hunting season.
(G) Opossum and raccoon hunting on the
field trial grounds will be allowed on
open days from the second Monday
before Thanksgiving through the
Saturday following Thanksgiving
and rabbit season on the field trial
grounds will be from the Saturday
preceding Thanksgiving through the
Saturday following Thanksgiving.
(H) The following areas are closed to all
quail and woodcock hunting and dog
training on birds: In Richmond
County: that part east of US 1; In
Scotland County: that part east of east
of SR 1001 and west of US 15/501.
(I) Horseback riding on field trial
grounds from October 22 through
March 31 shall be prohibited except
by participants in authorized field
trials.
(55) Scuppernong Game Land in Tyrrell and
Washington counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(56) Shearon Harris Game Land in Chatham and
Wake counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(C) Waterfowl may be taken only on
Tuesdays, Fridays, Saturdays; on
Thanksgiving, Christmas and New
Year's Days; and on the opening and
closing days of the applicable
waterfowl seasons.
(D) The use or construction of permanent
hunting blinds is prohibited.
(E) Wild turkey hunting is by permit
only.
(57) Shocco Creek Game Land in Franklin and
Warren counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last six
open days of the applicable Deer
With Visible Antlers Season.
(58) South Mountains Game Land in Burke,
Cleveland, McDowell and Rutherford counties
(A) Six Days per Week Area
(B) The Deer With Visible Antlers season
for deer consists of the open hunting
days from the Monday before
Thanksgiving through the third
Saturday after Thanksgiving.
(C) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(D) Horseback riding is prohibited except
on designated trails May 16 through
August 31 and all horseback riding is
prohibited from September 1 through
May 15. This Rule includes all
equine species.
(E) That part of South Mountains Game
Land in Cleveland, McDowell, and
Rutherford counties is closed to all
grouse, quail and woodcock hunting
and all bird dog training.
(59) Stones Creek Game Land in Onslow County
(A) Six Day Per Week Area
(B) Swimming lakes is prohibited.
(60) Suggs Mill Pond Game Land in Bladen
County;
(A) Hunting is by Permit only.
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19:14 NORTH CAROLINA REGISTER January 18, 2005
1142
(B) Camping is restricted to Sep. 1-Feb
28 and April 7- May 14 in areas both
designated and posted as camping
areas.
(61) Sutton Lake Game Land in New Hanover
County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(62) Three Top Mountain Game Land in Ashe
County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
(C) Horseback riding is prohibited except
on designated trails May 16 through
August 31 and all horseback riding is
prohibited from September 1 through
May 15. This Rule includes all
equine species.
(63) Thurmond Chatham Game Land in Wilkes
County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last six open days of the applicable
Deer With Visible Antlers Season.
Participants of the Disabled
Sportsman Program may also take
either-sex deer with bow and arrow
on the Saturday prior to Northwestern
bow and arrow season.
(C) Horseback riding is prohibited except
on designated trails May 16 through
August 31 and all horseback riding is
prohibited from September 1 through
May 15. This Rule includes all
equine species. Participants must
obtain a game lands license prior to
horseback riding on this area.
(64) Toxaway Game Land in Transylvania County
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
last open day of the applicable Deer
With Visible Antlers Season.
Participants of the Disabled
Sportsman Program may also take
deer of either sex with any legal
weapon on the Saturday prior to the
first segment of the Western bow and
arrow season.
(C) Horseback riding is prohibited except
on designated trails May 16 through
August 31 and all horseback riding is
prohibited from September 1 through
May 15. This Rule includes all
equine species.
(65) Uwharrie Game Land in Davidson,
Montgomery and Randolph counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken the
first six open days and the last open
six days of the applicable Deer With
Visible Antlers Season.
(66) Vance Game Land in Vance County
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(C) The use of dogs, centerfire rifles and
handguns for hunting deer is
prohibited on the Nutbush Peninsula
tract.
(67) Van Swamp Game Land in Beaufort and
Washington counties
(A) Six Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(68) White Oak River Impoundment Game Land in
Onslow County
(A) Three Days per Week Area
(B) Deer of either sex may be taken all
the open days of the applicable Deer
With Visible Antlers Season.
(C) Waterfowl may be taken only on
Mondays, Wednesdays, Saturdays; on
Thanksgiving, Christmas and New
Year's Days; and on the opening and
closing days of the statewide
waterfowl hunting seasons. After
October 1, a special permit is required
for hunting waterfowl on opening and
closing days of the duck seasons,
Saturdays of the duck seasons, and on
Thanksgiving and New Year's day.
(g) On permitted type hunts deer of either sex may be taken on
the hunt dates indicated on the permit. Completed applications
must be received by the Commission not later than the first day
of September next preceding the dates of hunt. Permits shall be
issued by random computer selection, shall be mailed to the
permittees prior to the hunt, and shall be nontransferable. A
hunter making a kill must validate the kill and report the kill to a
wildlife cooperator agent or by phone.
(h) The following game lands and refuges shall be closed to all
hunting except to those individuals who have obtained a valid
and current permit from the Wildlife Resources Commission:
Bertie, Halifax and Martin counties--Roanoke River
Wetlands
Bertie County--Roanoke River National Wildlife
Refuge
Bladen County—Suggs Mill Pond Game Lands
Burke County—John's River Waterfowl Refuge
Dare County--Dare Game Lands (Those parts of
bombing range posted against hunting)
Dare County--Roanoke Sound Marshes Game Lands
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1143
Davie--Hunting Creek Swamp Waterfowl Refuge
Gaston, Lincoln and Mecklenburg counties--Cowan's
Ford Waterfowl Refuge
Henderson and Transylvania counties--Dupont State
Forest Game Lands
Authority G.S. 113-134; 113-264; 113-291.2; 113-291.5;
113-305.
TITLE 21 – OCCUPATIONAL LICENSING BOARDS
CHAPTER 46 – NORTH CAROLINA BOARD OF
PHARMACY
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Board of Pharmacy intends to repeal the rule cited as 21
NCAC 46 .1508 with changes from the proposed text noticed in
the Register, Volume 19, Issue 04.
Proposed Effective Date: June 1, 2005
Reason for Proposed Action: To delete the rule setting out
prerequisites for the disease state management examination
because the Board no longer administers the examination.
Procedure by which a person can object to the agency on a
proposed rule: Persons may submit objections regarding the
proposed rule change to David R. Work, NC Board of
Pharmacy, 6015 Farrington Road, Suite 201, Chapel Hill, NC
27517.
Written comments may be submitted to: David R. Work, NC
Board of Pharmacy, 6015 Farrington Road, Suite 201, Chapel
Hill, NC 27517.
Comment period ends: March 21, 2005
Procedure for Subjecting a Proposed Rule to Legislative
Review: Any person who objects to the adoption of a permanent
rule may submit written comments to the agency. 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 6th business day preceding the end of the month in which a
rule is approved. 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 .1500 - ADMISSION REQUIREMENTS:
EXAMINATIONS
21 NCAC 46 .1508 PREREQUISITES FOR DISEASE
STATE MANAGEMENT EXAMINATION
In order to apply for the disease state management examination
administered by the Board, a pharmacist must be a North
Carolina licensed pharmacist.
Authority G.S. 90-85.6; 90-85.34.
* * * * * * * * * * * * * * * * * * * *
TITLE 21 – OCCUPATIONAL LICENSING BOARDS
CHAPTER 58 – REAL ESTATE COMMISSION
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Real Estate Commission intends to amend the rules cited as
21 NCAC 58A .0101, .0104, .0106-.0107, .0109-.0110, .0502,
.0504, .0506, .1702, .1807; 58C .0205, .0207, .0603-.0604,
.0607-.0608; 58E .0302, .0310, .0406-.0407.
Proposed Effective Date: July 1, 2005
Public Hearing:
Date: February 9, 2005
Time: 10:00 a.m.
Location: County Commissioner's Office, 301 West Market
Street, Greensboro, NC
Reason for Proposed Action: To clarify the current rules in
light of suggestions from the public, licensees, and the
Commission's staff.
Procedure by which a person can object to the agency on a
proposed rule: Any person who objects or who has comment
about the proposed rule changes may submit written comments
to rule-making coordinator Pamela Millward at the address
listed below.
Written comments may be submitted to: Pamela Millward,
NCREC, 1313 Navaho Drive, Raleigh, NC 27609, phone
(919)875-3700, fax (919)981-5023.
Comment period ends: March 21, 2005
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
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1144
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
SUBCHAPTER 58A - REAL ESTATE BROKERS
AND SALESMEN
SECTION .0100 - GENERAL BROKERAGE
21 NCAC 58A .0101 PROOF OF LICENSURE
(a) The annual license renewal pocket card issued by the
Commission to each licensee shall be retained by the licensee as
evidence of licensure. Each licensee shall carry his or her pocket
card on his or her person at all times while engaging in real
estate brokerage and shall produce the card as proof of licensure
whenever requested.
(b) The principal qualifying broker of a firm shall retain the
firm's renewal pocket card at the firm and shall produce it upon
request as proof of firm licensure as required by Rule .0502.
(c) Every licensed real estate business entity or firm shall
prominently display its license certificate or facsimile thereof in
each office maintained by the entity or firm. A broker-in-charge
shall also prominently display his or her license certificate in the
office where he or she is broker-in-charge.
(d) Every licensee shall include his or her license number in
agency contracts and disclosures as provided in Rule .0104 of
this Section.
Authority G.S. 93A-3(c).
21 NCAC 58A .0104 AGENCY AGREEMENTS AND
DISCLOSURE
(a) Every agreement for brokerage services in a real estate
transaction and every agreement for services connected with the
management of a property owners association shall be in
writing. Every agreement for brokerage services between a
broker and an owner of the property to be the subject of a
transaction must be in writing from the time of its formation.
Every agreement for brokerage services between a broker and a
buyer or tenant shall be express and shall be reduced to writing
not later than the time one of the parties makes an offer to
purchase, sell, rent, lease, or exchange real estate to another.
However, every agreement between a broker and a buyer or
tenant which seeks to bind the buyer or tenant for a period of
time or to restrict the buyer's or tenant's right to work with other
agents or without an agent shall be in writing from its formation.
A broker or salesperson shall not continue to represent a buyer
or tenant without a written agreement when such agreement is
required by this Rule. Every written agreement for brokerage
services of any kind in a real estate transaction shall provide for
its existence for a definite period of time time, shall include the
licensee's license number, and shall provide for its termination
without prior notice at the expiration of that period, except that
an agency agreement between a landlord and broker to procure
tenants or receive rents for the landlord's property may allow for
automatic renewal so long as the landlord may terminate with
notice at the end of any contract period and any subsequent
renewals. For the purposes of this rule, an agreement between
licensees to cooperate or share compensation shall not be
considered an agreement for brokerage services and, except as
required by Rule .1807 of this Subchapter, need not be
memorialized in writing.
(b) Every listing agreement, written buyer agency agreement or
other written agreement for brokerage services in a real estate
sales transaction shall contain the following provision: The
broker shall conduct all his brokerage activities in regard to this
agreement without respect to the race, color, religion, sex,
national origin, handicap or familial status of any buyer,
prospective buyer, seller or prospective seller. party or
prospective party to the agreement. The provision shall be set
forth in a clear and conspicuous manner which shall distinguish
it from other provisions of the agreement. For the purposes of
this Rule, the term, familial status, shall be defined as it is in
G.S. 41A-3(1b).
(c) In every real estate sales transaction, a broker or salesperson
shall, at first substantial contact directly with a prospective buyer
or seller, provide the prospective buyer or seller with a copy of
the publication "Working with Real Estate Agents," set forth the
broker or salesperson's name and license number thereon, review
it the publication with him or her, the buyer or seller, and
determine whether the agent will act as the agent of the buyer or
seller in the transaction. If the first substantial contact with a
prospective buyer or seller occurs by telephone or other
electronic means of communication where it is not practical to
provide the "Working with Real Estate Agents" publication, the
broker or salesperson shall at the earliest opportunity thereafter,
but in no event later than three days from the date of first
substantial contact, mail or otherwise transmit a copy of the
publication to the prospective buyer or seller and review it with
him or her at the earliest practicable opportunity thereafter. For
the purposes of this Rule, "first substantial contact" shall include
contacts between a broker or salesperson and a consumer where
the consumer or broker or salesperson begins to act as though an
agency relationship exists and the consumer begins to disclose to
the broker or salesperson personal or confidential information.
(d) A real estate broker or salesperson representing one party in
a transaction shall not undertake to represent another party in the
transaction without the written authority of each party. Such
written authority must be obtained upon the formation of the
relationship except when a buyer or tenant is represented by a
broker without a written agreement in conformity with the
requirements of Paragraph (a) of this Rule. Under such
circumstances, the written authority for dual agency must be
reduced to writing not later than the time that one of the parties
represented by the broker or salesperson makes an offer to
purchase, sell, rent, lease, or exchange real estate to another
party.
(e) In every real estate sales transaction, a broker or salesperson
working directly with a prospective buyer as a seller's agent or
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1145
subagent shall disclose in writing to the prospective buyer at the
first substantial contact with the prospective buyer that the
broker or salesperson represents the interests of the seller. The
written disclosure shall include the broker or salesperson's
license number. If the first substantial contact occurs by
telephone or by means of other electronic communication where
it is not practical to provide written disclosure, the broker or
salesperson shall immediately disclose by similar means whom
he represents and shall immediately mail or otherwise transmit a
copy of the written disclosure to the buyer. In no event shall the
broker or salesperson mail or transmit a copy of the written
disclosure to the buyer later than three days from the date of first
substantial contact with the buyer.
(f) In every real estate sales transaction, a broker or salesperson
representing a buyer shall, at the initial contact with the seller or
seller's agent, disclose to the seller or seller's agent that the
broker or salesperson represents the buyer's interests. In
addition, in every real estate sales transaction other than
auctions, the broker or salesperson shall, no later than the time of
delivery of an offer to the seller or seller's agent, provide the
seller or seller's agent with a written confirmation disclosing that
he represents the interests of the buyer. The written
confirmation may be made in the buyer's offer to purchase
purchase and shall include the broker or salesperson's license
number.
(g) The provisions of Paragraphs (c), (d) and (e) of this Rule
shall not apply to real estate licensees representing sellers in
auction sales transactions.
(h) A broker or salesperson representing a buyer in an auction
sale transaction shall, no later than the time of execution of a
written agreement memorializing the buyer's contract to
purchase, provide the seller or seller's agent with a written
confirmation disclosing that he represents the interests of the
buyer. The written confirmation may be made in the written
agreement.
(i) A firm which represents more than one party in the same real
estate transaction is a dual agent and, through the brokers and
salespersons associated with the firm, shall disclose its dual
agency to the parties.
(j) When a firm represents both the buyer and seller in the same
real estate transaction, the firm may, with the prior express
approval of its buyer and seller clients, designate one or more
individual agents associated with the firm to represent only the
interests of the seller and one or more other individual brokers
and salespersons associated with the firm to represent only the
interests of the buyer in the transaction. The authority for
designated agency must be reduced to writing not later than the
time that the parties are required to reduce their dual agency
agreement to writing in accordance with Paragraph (d) of this
Rule. An individual broker or salesperson shall not be so
designated and shall not undertake to represent only the interests
of one party if the broker or salesperson has actually received
confidential information concerning the other party in
connection with the transaction. A broker-in-charge shall not act
as a designated agent for a party in a real estate sales transaction
when a salesperson under his or her supervision will act as a
designated agent for another party with a competing interest.
(k) When a firm acting as a dual agent designates an individual
broker or salesperson to represent the seller, the broker or
salesperson so designated shall represent only the interest of the
seller and shall not, without the seller's permission, disclose to
the buyer or a broker or salesperson designated to represent the
buyer:
(1) that the seller may agree to a price, terms, or
any conditions of sale other than those
established by the seller;
(2) the seller's motivation for engaging in the
transaction unless disclosure is otherwise
required by statute or rule; and
(3) any information about the seller which the
seller has identified as confidential unless
disclosure of the information is otherwise
required by statute or rule.
(l) When a firm acting as a dual agent designates an individual
broker or salesperson to represent the buyer, the broker or
salesperson so designated shall represent only the interest of the
buyer and shall not, without the buyer's permission, disclose to
the seller or a broker or salesperson designated to represent the
seller:
(1) that the buyer may agree to a price, terms, or
any conditions of sale other than those
established by the seller;
(2) the buyer's motivation for engaging in the
transaction unless disclosure is otherwise
required by statute or rule; and
(3) any information about the buyer which the
buyer has identified as confidential unless
disclosure of the information is otherwise
required by statute or rule.
(m) A broker or salesperson designated to represent a buyer or
seller in accordance with Paragraph (j) of this Rule shall disclose
the identity of all of the brokers and salespersons so designated
to both the buyer and the seller. The disclosure shall take place
no later than the presentation of the first offer to purchase or sell.
(n) When an individual broker or salesperson represents both
the buyer and seller in the same real estate sales transaction
pursuant to a written agreement authorizing dual agency, the
parties may provide in the written agreement that the broker or
salesperson shall not disclose the following information about
one party to the other without permission from the party about
whom the information pertains:
(1) that a party may agree to a price, terms or any
conditions of sale other than those offered;
(2) the motivation of a party for engaging in the
transaction, unless disclosure is otherwise
required by statute or rule; and
(3) any information about a party which that party
has identified as confidential, unless disclosure
is otherwise required by statute or rule.
Authority G.S. 41A-3(1b); 41A-4(a); 93A-3(c); 93A-9.
21 NCAC 58A .0106 DELIVERY OF INSTRUMENTS
(a) Except as provided in Paragraph (b) of this Rule, every
broker or salesperson shall immediately, but in no event later
than five days from the date of execution, deliver to the parties
thereto copies of any required written agency agreement,
contract, offer, lease, or option affecting real property.
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1146
(b) A broker or salesperson may be relieved of his or her duty
under Paragraph (a) of this Rule to deliver copies of leases or
rental agreements to the property owner, if the broker:
(1) obtains the express written authority of the
property owner to enter into and retain copies
of leases or rental agreements on behalf of the
property owner;
(2) executes the lease or rental agreement on a
pre-printed form, the material terms of which
may not be changed by the broker without
prior approval by the property owner except as
may be required by law;
(3) promptly provides a copy of the lease or rental
agreement to the property owner upon
reasonable request; and
(4) delivers to the property owner within 45 days
following the date of execution of the lease or
rental agreement, an accounting which
identifies the leased property and which sets
forth the names of the tenants, the rental rates
and rents collected.
Authority G.S. 93A-3(c).
21 NCAC 58A .0107 HANDLING AND ACCOUNTING
OF FUNDS
(a) Except as provided herein, all All monies received by a
licensee acting in his or her fiduciary capacity shall be deposited
in a trust or escrow account maintained by a broker not later than
three banking days following receipt of such monies except that
earnest money deposits paid by means other than currency which
are received on offers to purchase real estate and tenant security
deposits paid by means other than currency which are received
in connection with real estate leases shall be deposited in a trust
or escrow account not later than three banking days following
acceptance of such offer to purchase or lease; the date of
acceptance of such offer to purchase or lease shall be set forth in
the purchase or lease agreement. All monies received by a
salesperson shall be delivered immediately to the broker by
whom he or she is employed, except that all monies received by
nonresident commercial licensees shall be delivered as required
by Rule .1808 of this Subchapter. A licensee may accept
custody of a check or other negotiable instrument made payable
to the seller of real property as option money only for the
purpose of delivering the instrument to the optionor-seller.
While the instrument is in the custody of the licensee, the
licensee shall either deliver it to the seller-optionor or return it to
the buyer-optionee according to the instructions of the buyer-optionee.
The licensee shall safeguard the instrument and shall
be responsible to the parties on the instrument for its prompt and
safe delivery. In no event shall a licensee retain such an
instrument for more than three business days after the
acceptance of the option contract.
(b) In the event monies received by a licensee while acting in a
fiduciary capacity are deposited in a trust or escrow account
which bears interest, the broker having custody over such
monies shall first secure from all parties having an interest in the
monies written authorization for the deposit of the monies in an
interest-bearing account. Such authorization shall specify how
and to whom the interest will be disbursed, and, if contained in
an offer, contract, lease, or other transaction instrument, such
authorization shall be set forth in a conspicuous manner which
shall distinguish it from other provisions of the instrument.
(c) Closing statements shall be furnished to the buyer and the
seller in the transaction at the closing or not more than five days
after closing.
(d) Trust or escrow accounts shall be so designated by the bank
or savings and loan association in which the account is located,
and all deposit tickets and checks drawn on said account as well
as the monthly bank statement for the account shall bear the
words "Trust Account" or "Escrow Account."
(e) A licensee shall maintain and retain records sufficient to
identify the ownership of all funds belonging to others. Such
records shall be sufficient to show proper deposit of such funds
in a trust or escrow account and to verify the accuracy and
proper use of the trust or escrow account. The required records
shall include:
(1) bank statements;
(2) canceled checks which shall be referenced to
the corresponding journal entry or check stub
entries and to the corresponding sales
transaction ledger sheets or for rental
transactions, the corresponding property or
owner ledger sheets. Checks shall
conspicuously identify the payee and shall
bear a notation identifying the purpose of the
disbursement. When a check is used to
disburse funds for more than one sales
transaction, owner, or property, the check shall
bear a notation identifying each sales
transaction, owner, or property for which
disbursement is made, including the amount
disbursed for each, and the corresponding
sales transaction, property, or owner ledger
entries. When necessary, the check notation
may refer to the required information recorded
on a supplemental disbursement worksheet
which shall be cross-referenced to the
corresponding check. In lieu of retaining
canceled checks, a licensee may retain
digitally imaged copies of the canceled checks
provided that such images are legible
reproductions of the front and back of the
original instruments with no more than four
instruments per page and no smaller images
than 2.25 x 5.0 1.1875 x 3.0 inches, inches and
provided that the licensee's bank retains the
original checks or a "substitute check" as
described in 12 C.F.R. 229.51 on file for a
period of at least five six years and makes
them available to the licensee and the
Commission upon request;
(3) deposit tickets. For a sales transaction, the
deposit ticket shall identify the purpose and
remitter of the funds deposited, the property,
the parties involved, and a reference to the
corresponding sales transaction ledger entry.
For a rental transaction, the deposit ticket shall
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1147
identify the purpose and remitter of the funds
deposited, the tenant, and the corresponding
property or owner ledger entry. For deposits
of funds belonging to or collected on behalf of
a property owner association, the deposit ticket
shall identify the property or property interest
for which the payment is made, the property or
interest owner, the remitter, and the purpose of
the payment. When a single deposit ticket is
used to deposit funds collected for more than
one sales transaction, property owner, or
property, the required information shall be
recorded on the ticket for each sales
transaction, owner, or property, or the ticket
may refer to the same information recorded on
a supplemental deposit worksheet which shall
be cross-referenced to the corresponding
deposit ticket;
(4) a payment record sheet for each property or
interest for which funds are collected and
deposited into a property owner association
trust account as required by Paragraph (i) of
this Rule. Payment record sheets shall identify
the amount, date, remitter, and purpose of
payments received, the amount and nature of
the obligation for which payments are made,
and the amount of any balance due or
delinquency;
(5) a separate ledger sheet for each sales
transaction and for each property or owner of
property managed by the broker identifying
the property, the parties to the transaction, the
amount, date, and purpose of the deposits and
from whom received, the amount, date, check
number, and purpose of disbursements and to
whom paid, and the running balance of funds
on deposit for the particular sales transaction
or, in a rental transaction, the particular
property or owner of property. Monies held as
tenant security deposits in connection with
rental transactions may be accounted for on a
separate tenant security deposit ledger for each
property or owner of property managed by the
broker. For each security deposit the tenant
security deposit ledger shall identify the
remitter, the date the deposit was paid, the
amount, the tenant, landlord, and subject
property. For each disbursement of tenant
security deposit monies, the ledger shall
identify the check number, amount, payee,
date, and purpose of the disbursement. The
ledger shall also show a running balance.
When tenant security deposit monies are
accounted for on a separate ledger as provided
herein, deposit tickets, canceled checks and
supplemental worksheets shall reference the
corresponding tenant security deposit ledger
entries when appropriate;
(6) a journal or check stubs identifying in
chronological sequence each bank deposit and
disbursement of monies to and from the trust
or escrow account, including the amount and
date of each deposit and a reference to the
corresponding deposit ticket and any
supplemental deposit worksheet, and the
amount, date, check number, and purpose of
disbursements and to whom paid. The journal
or check stubs shall also show a running
balance for all funds in the account;
(7) copies of contracts, leases and management
agreements;
(8) closing statements and property management
statements;
(9) covenants, bylaws, minutes, management
agreements and periodic statements relating to
the management of a property owner
association; and
(10) invoices, bills, and contracts paid from the
trust account, and any documents not
otherwise described herein necessary and
sufficient to verify and explain record entries.
Records of all receipts and disbursements of trust or escrow
monies shall be maintained in such a manner as to create an
audit trail from deposit tickets and canceled checks to check
stubs or journals and to the ledger sheets. Ledger sheets and
journals or check stubs must be reconciled to the trust or escrow
account bank statements on a monthly basis. To be sufficient,
records of trust or escrow monies must include a worksheet for
each such monthly reconciliation showing the ledger sheets,
journals or check stubs, and bank statements to be in agreement
and balance.
(f) All trust or escrow account records shall be made available
for inspection by the Commission or its authorized
representatives in accordance with Rule 21 NCAC 58A .0108.
(g) In the event of a dispute between the seller and buyer or
landlord and tenant over the return or forfeiture of any deposit
other than a residential tenant security deposit held by a licensee,
the licensee shall retain said deposit in a trust or escrow account
until the licensee has obtained a written release from the parties
consenting to its disposition or until disbursement is ordered by
a court of competent jurisdiction. If it appears to a broker
holding a disputed deposit that a party has abandoned his or her
claim, the broker may disburse the money to the other claiming
parties according to their written agreement provided that the
broker first makes a reasonable effort to notify the party who has
apparently abandoned his or her claim and provides that party
with an opportunity to renew his or her claim to the disputed
funds. Tenant security deposit monies shall be disposed of in
accordance with the requirements of G.S. 42-50 through 56 and
G.S. 42A-18.
(h) A broker may transfer earnest money deposits in his or her
possession collected in connection with a sales transaction from
his or her trust account to the closing attorney or other settlement
agent not more than ten days prior to the anticipated settlement
date. A licensee shall not disburse prior to settlement any earnest
money in his or her possession for any other purpose without the
written consent of the parties.
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1148
(i) The funds of a property owner association, when collected,
maintained, disbursed or otherwise controlled by a licensee, are
trust monies and shall be treated as such in the manner required
by this Rule. Such funds must be deposited into and maintained
in a trust or escrow account or accounts dedicated exclusively
for funds belonging to a single property owners association and
may not be commingled with funds belonging to other property
owner associations or other persons or parties. A licensee who
undertakes to act as manager of a property owner association or
as the custodian of funds belonging to a property owner
association shall provide the association with periodic statements
which report the balance of association funds in the licensee's
possession or control and which account for the funds the
licensee has received and disbursed on behalf of the association.
Such statements must be made in accordance with the licensee's
agreement with the association, but in no event shall the
statements be made less frequently than every 90 days.
(j) Every licensee shall safeguard the money or property of
others coming into his or her possession in a manner consistent
with the requirements of the Real Estate License Law and the
rules adopted by the Commission. A licensee shall not convert
the money or property of others to his or her own use, apply
such money or property to a purpose other than that for which it
was paid or entrusted to him or her, or permit or assist any other
person in the conversion or misapplication of such money or
property.
(k) In addition to the records required by Paragraph (e) of this
Rule, a licensee acting as agent for the landlord of a residential
property used for vacation rentals shall create and maintain a
subsidiary ledger sheet for each property or owner of such
properties onto which all funds collected and disbursed are
identified in categories by purpose. On a monthly basis, the
licensee shall reconcile the subsidiary ledger sheets to the
corresponding property or property owner ledger sheet.
(l) In lieu of maintaining a subsidiary ledger sheet, the licensee
may maintain an accounts payable ledger sheet for each owner
or property and each vendor to whom trust monies are due for
monies collected on behalf of the owner or property identifying
the date of receipt of the trust monies, from whom the monies
were received, rental dates, and the corresponding property or
owner ledger sheet entry including the amount to be disbursed
for each and the purpose of the disbursement. The licensee may
also maintain an accounts payable ledger sheet in the format
described in Paragraph (k) of this Rule for vacation rental tenant
security deposit monies and vacation rental advance payments.
Authority G.S. 93A-3(c); 93A-9.
21 NCAC 58A .0109 BROKERAGE FEES AND
COMPENSATION
(a) A licensee shall not receive, either directly or indirectly, any
commission, rebate or other valuable consideration of more than
nominal value from a vendor or a supplier of goods and services
for an expenditure made on behalf of the licensee's principal in a
real estate transaction without the written consent of the
licensee's principal.
(b) A licensee shall not receive, either directly or indirectly, any
commission, rebate or other valuable consideration of more than
nominal value for services which the licensee recommends,
procures, or arranges relating to a real estate transaction for any
party, without full disclosure to such party; provided, however,
that nothing in this Rule shall be construed to permit a licensee
to accept any fee, kickback or other valuable consideration that
is prohibited by the Real Estate Settlement Procedures Act of
1974 (12 USC 2601 et. seq.) or any rules and regulations
promulgated by the United States Department of Housing and
Urban Development pursuant to such Act.
(c) The Commission shall not act as a board of arbitration and
shall not compel parties to settle disputes concerning such
matters as the rate of commissions, the division of commissions,
pay of salespersons, and similar matters.
(d) Except as provided in (e) of this rule, a licensee shall not
undertake in any manner, any arrangement, contract, plan or
other course of conduct, to compensate or share compensation
with unlicensed persons or entities for any acts performed in
North Carolina for which licensure by the Commission is
required.
(e) A broker may pay or promise to pay consideration to a travel
agent in return for procuring a tenant for a vacation rental as
defined by the Vacation Rental Act if:
(1) the travel agent only introduces the tenant to
the broker, but does not otherwise engage in
any activity which would require a real estate
license;
(2) the introduction by the travel agent is made in
the regular course of the travel agent's
business; and
(3) the travel agent has not solicited, handled or
received any monies in connection with the
vacation rental.
For the purpose of this Rule, a travel agent is any person or
entity who is primarily engaged in the business of acting as an
intermediary between persons who purchase air, land, and ocean
travel services and the providers of such services. A travel agent
is also any other person or entity who is permitted to handle and
sell tickets for air travel by the Airlines Reporting Corporation
(ARC). Payments authorized hereunder shall be made only after
the conclusion of the vacation rental tenancy. Prior to the
creation of a binding vacation rental agreement, the broker shall
provide a tenant introduced by a travel agent a written statement
advising him or her to rely only upon the agreement and the
broker's representations about the transaction. The broker shall
keep for a period of three years records of a payment made to a
travel agent including records identifying the tenant, the travel
agent and their addresses, the property and dates of the tenancy,
and the amount paid.
Authority G.S. 93A-3(c).
21 NCAC 58A .0110 BROKER-IN-CHARGE
(a) Every real estate firm shall designate a broker to serve as the
broker-in-charge at its principal office and a broker to serve as
broker-in-charge at any branch office. No broker shall be
broker-in-charge of more than one office or branch office. If a
firm shares office space with one or more other firms, one
broker may serve as broker-in-charge of each firm at that
location. No office or branch office of a firm shall have more
than one designated broker-in-charge. A broker who is a sole
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19:14 NORTH CAROLINA REGISTER January 18, 2005
1149
proprietor shall designate himself or herself as a broker-in-charge
if the broker engages in any transaction where the broker
is required to deposit and maintain monies belonging to others in
a trust account, engages in advertising or promoting his or her
services as a broker in any manner, or has one or more brokers
or salespersons affiliated with him or her in the real estate
business. Each broker-in-charge shall make written notification
of his or her status as broker-in-charge to the Commission on a
form prescribed by the Commission within 10 days following
the broker's designation as broker-in-charge. The broker-in-charge
shall assume the responsibility at his or her office for:
(1) the retention and display of current license
renewal pocket cards by all brokers and
salespersons employed at the office for which
he or she is broker-in-charge; the proper
display of licenses at such office in accordance
with Rule .0101 of this Section; and assuring
that each licensee employed at the office has
complied with Rules .0503, .0504, and .0506
of this Subchapter;
(2) the proper notification to the Commission of
any change of business address or trade name
of the firm and the registration of any assumed
business name adopted by the firm for its use;
(3) the proper conduct of advertising by or in the
name of the firm at such office;
(4) the proper maintenance at such office of the
trust or escrow account of the firm and the
records pertaining thereto;
(5) the proper retention and maintenance of
records relating to transactions conducted by
or on behalf of the firm at such office,
including those required to be retained
pursuant to Rule .0108 of this Section;
(6) the proper supervision of salespersons
associated with or engaged on behalf of the
firm at such office in accordance with the
requirements of Rule .0506 of this Subchapter;
(7) the verification to the Commission of the
experience of any salesperson at such office
who may be applying for licensure as a broker;
and
(8) the proper supervision of all brokers and
salespersons employed at the office for which
he or she is broker-in-charge with respect to
adherence to agency agreement and disclosure
requirements.
(b) When used in this Rule, the term:
(1) "Branch Office" means any office in addition
to the principal office of a broker which is
operated in connection with the broker's real
estate business; and
(2) "Office" means any place of business where
acts are performed for which a real estate
license is required.
(c) A broker-in-charge must continually maintain his or her
license on active status.
(d) Each broker-in-charge shall notify the Commission in
writing of any change in his or her status as broker-in-charge
within 10 days following the change. Upon written request of a
salesperson within five years after termination of his or her
association with a broker-in-charge, the broker-in-charge shall
provide the salesperson, on a form prescribed by the
Commission, an accurate written statement regarding the
number and type of properties listed, sold, bought, leased, or
rented for others by the salesperson while under the supervision
of the broker-in-charge.
(e) A licensed real estate firm shall not be required to designate
a broker-in-charge if it:
(1) has been organized for the sole purpose of
receiving compensation for brokerage services
furnished by its principal qualifying broker
through another firm or broker;
(2) is designated a Subchapter S corporation by
the United States Internal Revenue Service;
(3) has no principal or branch office; and
(4) has no person associated with it other than its
principal qualifying broker.
(f) Except as provided herein every broker-in-charge designated
before October 1, 2000 shall complete the Commission's broker-in-
charge course not later than October 1, 2005 in order to
remain broker-in-charge on that date and thereafter. Except as
provided herein, every broker-in-charge designated after October
1, 2000 shall complete the broker-in-charge course within 120
days following designation in order to remain broker-in-charge
thereafter. Every broker who has completed the broker-in-charge
course shall take the course on a recurring basis at
intervals not to exceed five years between courses in order to
remain eligible to be designated broker-in-charge of the
principal or branch office of any real estate firm. If a broker
who is designated broker-in-charge fails to complete the broker-in-
charge course within the prescribed time period, the broker-in-
charge status of that broker shall be immediately terminated,
and the broker must complete the broker-in-charge course before
he or she may again be designated as broker-in-charge. A
broker-in-charge residing outside of North Carolina who is the
broker-in-charge of a principal or branch office not located in
North Carolina shall not be required to complete the broker-in-charge
course.
(g) A nonresident commercial real estate broker licensed under
the provisions of Section .1800 of this Subchapter shall not act
as or serve in the capacity of a broker-in-charge of a firm or
office in North Carolina.
Authority G.S. 93A-2; 93A-3(c); 93A-4; 93A-9.
SECTION .0500 - LICENSING
21 NCAC 58A .0502 BUSINESS ENTITIES
(a) Every business entity other than a sole proprietorship shall
apply for and obtain from the Commission a firm license prior to
engaging in business as a real estate broker. An entity that
changes its business form shall be required to submit a new
application immediately upon making the change and to obtain a
new license. Incomplete applications shall not be acted upon by
the Commission. Application forms for partnerships,
corporations, limited liability companies, associations and other
business entities required to be licensed as brokers shall be
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19:14 NORTH CAROLINA REGISTER January 18, 2005
1150
available upon request to the Commission and shall require the
applicant to set forth:
(1) the name of the entity;
(2) the name under which the entity will do
business;
(3) the type of business entity;
(4) the address of its principal office;
(5) the entity's NC Secretary of State
Identification Number if required to be
registered with the Office of the NC Secretary
of State;
(6) the name, real estate license number and
signature of the proposed principal qualifying
broker for the proposed firm;
(7) the address of and name of the proposed
broker-in-charge for each office where
brokerage activities will be conducted, along
with a completed broker-in-charge declaration
form for each proposed broker-in-charge;
(8) any past criminal conviction of and any
pending criminal charge against any principal
in the company or any proposed broker-in-charge;
(9) any past revocation, suspension or denial of a
business or professional license of any
principal in the company or any proposed
broker-in-charge;
(10) if a general partnership, a full description of
the applicant entity, including a copy of its
written partnership agreement or if no written
agreement exists, a written description of the
rights and duties of the several partners;
(11) if a business entity other than a corporation,
limited liability company or partnership, a full
description of the organization of the applicant
entity, including a copy of its organizational
documents evidencing its authority to engage
in real estate brokerage;
(12) if a foreign business entity, a certificate of
authority to transact business in North
Carolina and an executed consent to service of
process and pleadings; and
(13) any other information required by this Rule.
The Commission also may require the applicant to declare in the
license application that the applicant's organizational documents
authorize the firm to engage in the real estate business and to
submit organizational documents, addresses of affiliated persons
and similar information. For purposes of this Paragraph, the
term principal shall mean any person or entity owning 10
percent or more of the business entity, or who is an officer,
director, manager, member, partner or who holds any other
comparable position.
(b) After filing a written application with the Commission and
upon a showing that at least one principal of said business entity
holds a broker license on active status and in good standing and
will serve as principal qualifying broker of the entity, the entity
shall be licensed provided it appears that the applicant entity
employs and is directed by personnel possessed of the requisite
truthfulness, honesty, and integrity. The principal qualifying
broker of a partnership of any kind must be a general partner of
the partnership; the principal qualifying broker of a limited
liability company must be a manager of the company; and the
principal qualifying broker of a corporation must be an officer of
the corporation. A licensed business entity may serve as the
principal qualifying broker of another licensed business entity if
the principal qualifying broker-entity has as its principal
qualifying broker a natural person who is himself licensed as a
broker. The natural person who is principal qualifying broker
shall assure the performance of the principal qualifying broker's
duties with regard to both entities.
(c) The licensing of a business entity shall not be construed to
extend to the licensing of its partners, managers, members,
directors, officers, employees or other persons acting for the
entity in their individual capacities regardless of whether they
are engaged in furthering the business of the licensed entity.
(d) The principal qualifying broker of a business entity shall
assume responsibility for:
(1) designating and assuring that there is at all
times a broker-in-charge for each office and
branch office of the entity at which real estate
brokerage activities are conducted;
(2) renewing the real estate broker license of the
entity;
(3) retaining the firm's renewal pocket card at the
firm and producing it as proof of firm
licensure upon request and maintaining a
photocopy of the firm license certificate and
pocket card at each branch office thereof;
(4) notifying the Commission of any change of
business address or trade name of the entity
and the registration of any assumed business
name adopted by the entity for its use;
(5) notifying the Commission in writing of any
change of his or her status as principal
qualifying broker within ten days following
the change;
(6) securing and preserving the transaction and
trust account records of the firm whenever
there is a change of broker-in-charge at the
firm or any office thereof and notifying the
Commission if the trust account records are
out-of-balance out of balance or have not been
reconciled as required by Rule .0107 of this
Chapter;
(7) retaining and preserving the transaction and
trust account records of the firm upon
termination of his or her status as principal
qualifying broker until a new principal
qualifying broker has been designated with the
Commission or, if no new principal qualifying
broker is designated, for the period of time for
which said records are required to be retained
by Rule .0108 of this Chapter; and
(8) notifying the Commission if, upon the
termination of his or her status as principal
qualifying broker, the firm's transaction and
trust account records cannot be retained or
preserved or if the trust account records are
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1151
out-of-balance out of balance or have not been
reconciled as required by Rule .0107(e) of this
Chapter.
(e) Every licensed business entity and every entity applying for
licensure shall conform to all the requirements imposed upon it
by the North Carolina General Statutes for its continued
existence and authority to do business in North Carolina. Failure
to conform to such requirements shall be grounds for
disciplinary action or denial of the entity's application for
licensure. Upon receipt of notice from an entity or agency of
this state that a licensed entity has ceased to exist or that its
authority to engage in business in this state has been terminated
by operation of law, the Commission shall cancel the license of
the entity.
Authority G.S. 93A-3(c); 93A-4(a),(b),(d).
21 NCAC 58A .0504 ACTIVE AND INACTIVE
LICENSE STATUS
(a) Except for licenses that have expired or that have been
revoked, suspended or surrendered, all licenses issued by the
Commission shall be designated as being either on active status
or inactive status. The holder of a license on active status may
engage in any activity requiring a real estate license and may be
compensated for the provision of any lawful real estate
brokerage service. The holder of a license on inactive status
may not engage in any activity requiring a real estate license,
including the referral for compensation of a prospective seller,
buyer, landlord or tenant to another real estate licensee or any
other party. A licensee holding a license on inactive status must
renew such license and pay the prescribed license renewal fee in
order to continue to hold such license. The Commission may
take disciplinary action against a licensee holding a license on
inactive status for any violation of G.S. 93A or any rule
promulgated by the Commission, including the offense of
engaging in an activity for which a license is required while a
license is on inactive status.
(b) Except as provided by Rule .1804 of this Subchapter, a
salesperson's license shall, upon initial licensure, be assigned to
inactive status. The license of a broker or firm shall be assigned
to active status. Except for persons licensed under the
provisions of Section .1800 of this Subchapter, a broker or
salesperson may change the status of his or her license from
active to inactive status by submitting a written request to the
Commission. Except for salespersons licensed under Section
.1800 of this Subchapter, a salesperson's license shall be
assigned by the Commission to inactive status when the
salesperson is not under the active, personal supervision of a
broker-in-charge. A firm's license shall be assigned by the
Commission to inactive status when the firm does not have a
principal qualifying broker. Except for persons licensed under
the provisions of Section .1800 of this Subchapter, a broker or
salesperson shall also be assigned to inactive status if, upon the
second renewal of his or her license following initial licensure,
or upon any subsequent renewal, he or she has not satisfied the
continuing education requirement described in Rule .1702 of this
Subchapter.
(c) A salesperson with an inactive license who desires to have
such license placed on active status must comply with the
procedures prescribed in Rule .0506 of this Section.
(d) A broker with an inactive license who desires to have such
license placed on active status shall file with the Commission a
request for license activation on a form prescribed by the
Commission containing identifying information about the
broker, a statement that the broker has satisfied the continuing
education requirements prescribed by Rule .1703 of this
Subchapter, the date of the request, and the signature of the
broker. Upon the mailing or delivery of this form, the broker
may engage in real estate brokerage activities requiring a
license; however, if the broker does not receive from the
Commission a written acknowledgment of the license activation
within 30 days of the date shown on the form, the broker shall
immediately terminate his or her real estate brokerage activities
pending receipt of the written acknowledgment from the
Commission. If the broker is notified that he or she is not
eligible for license activation due to a continuing education
deficiency, the broker must terminate all real estate brokerage
activities until such time as the continuing education deficiency
is satisfied and a new request for license activation is submitted
to the Commission.
(e) A firm with an inactive license which desires to have its
license placed on active status shall file with the Commission a
request for license activation on a form prescribed by the
Commission containing identifying information about the firm
and its principal qualifying broker. If the principal qualifying
broker has an inactive license, he or she must satisfy the
requirements of Paragraph (d) of this Rule. Upon the mailing or
delivery of the completed form by the principal qualifying
broker, the firm may engage in real estate brokerage activities
requiring a license; however, if the firm's principal qualifying
broker does not receive from the Commission a written
acknowledgment of the license activation within 30 days of the
date shown on the form, the firm shall immediately terminate its
real estate brokerage activities pending receipt of the written
acknowledgment from the Commission. If the principal
qualifying broker is notified that the firm is not eligible for
license activation due to a continuing education deficiency on
the part of the principal qualifying broker, the firm must
terminate all real estate brokerage activities until such time as
the continuing education deficiency is satisfied and a new
request for license activation is submitted to the Commission.
(f) A person licensed as a broker or salesperson under Section
.1800 of this Subchapter shall maintain his or her license on
active status at all times as required by Rule .1804 of this
Subchapter.
Authority G.S. 93A-3(c); 93A-4(d); 93A-4A; 93A-6; 93A-9.
21 NCAC 58A .0506 SALESPERSON TO BE
SUPERVISED BY BROKER
(a) This Rule shall apply to all real estate salespersons except
those salespersons licensed under the provisions of Section
.1800 of this Subchapter.
(b) A salesperson may engage in or hold himself or herself out
as engaging in activities requiring a real estate license only while
his or her license is on active status and he or she is supervised
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19:14 NORTH CAROLINA REGISTER January 18, 2005
1152
by the broker-in-charge of the real estate firm or office where the
salesperson is associated. A salesperson may be supervised by
only one broker-in-charge at a time.
(c) Upon a salesperson's association with a real estate broker or
brokerage firm, the salesperson and the broker-in-charge of the
office where the salesperson will be engaged in the real estate
business shall immediately file with the Commission a
salesperson supervision notification on a form prescribed by the
Commission containing identifying information about the
salesperson and the broker-in-charge, a statement from the
broker-in-charge certifying that he or she will supervise the
salesperson in the performance of all acts for which a license is
required, the date that the broker-in-charge assumes
responsibility for such supervision, and the signatures of the
salesperson and broker-in-charge. If the salesperson is on
inactive status at the time of associating with a broker or
brokerage firm, the salesperson and broker-in-charge shall also
file, along with the salesperson supervision notification, the
salesperson's request for license activation on a form prescribed
by the Commission containing identifying information about the
salesperson, the salesperson's statement that he or she has
satisfied the continuing education requirements prescribed by
Rule .1703 of this Subchapter, the date of the request, and the
signatures of the salesperson and the salesperson's proposed
broker-in-charge. Upon the mailing or delivery of the required
form(s), the salesperson may engage in real estate brokerage
activities requiring a license under the supervision of the broker-in-
charge; however, if the salesperson and broker-in-charge do
not receive from the Commission a written acknowledgment of
the salesperson supervision notification and, if appropriate, the
request for license activation, within 30 days of the date shown
on the form, the broker-in-charge shall immediately terminate
the salesperson's real estate brokerage activities pending receipt
of the written acknowledgment from the Commission. If the
salesperson and broker-in-charge are notified that the
salesperson is not eligible for license activation due to a
continuing education deficiency, the broker-in-charge shall
cause the salesperson to immediately cease all activities
requiring a real estate license until such time as the continuing
education deficiency is satisfied and a new salesperson
supervision notification and request for license activation is
submitted to the Commission.
(d) A broker-in-charge who certifies to the Commission that he
or she will supervise a licensed salesperson shall actively and
personally directly supervise the salesperson in a manner which
reasonably assures that the salesperson performs all acts for
which a real estate license is required in accordance with the
Real Estate License Law and Commission rules. A supervising
broker who fails to supervise a salesperson as prescribed in this
Rule may be subject to disciplinary action by the Commission.
(e) Upon the termination of the supervisory relationship
between a salesperson and his or her broker-in-charge, the
salesperson and the broker-in-charge shall provide written
notification of the date of termination to the Commission not
later than 10 days following said termination.
Authority G.S. 93A-2(b); 93A-3; 93A-9.
SECTION .1700 – MANDATORY CONTINUING
EDUCATION
21 NCAC 58A .1702 CONTINUING EDUCATION
REQUIREMENT
(a) Except as provided in A.1708 and A.1711, in In order to
renew a broker or salesperson license on active status, the person
requesting renewal of a license shall, upon the second renewal of
such license following initial licensure, and upon each
subsequent annual renewal, have completed, within one year
preceding license expiration, eight classroom hours of real estate
continuing education in courses approved by the Commission as
provided in Subchapter 58E. Four of the required eight
classroom hours must be obtained each license period by
completing a mandatory update course developed annually by
the Commission. The remaining four hours must be obtained by
completing one or more Commission-approved elective courses
described in Rule .0305 of Subchapter 58E. The licensee bears
the responsibility for providing, upon request of the
Commission, evidence of continuing education course
completion satisfactory to the Commission. A licensed
salesperson who applies for a broker license after the first
renewal of his or her salesperson license must have completed
the current mandatory update course and one approved elective
course during the license period in which the broker license
application is filed.
(b) No continuing education shall be required to renew a broker
or salesperson license on inactive status; however, to change a
license from inactive status to active status, the licensee must
satisfy the continuing education requirement described in Rule
.1703 of this Section.
(c) No continuing education shall be required for a licensee who
is a member of the U.S. Congress or the North Carolina General
Assembly in order to renew his or her license on active status.
(d) The terms "active status" and "inactive status" are defined in
Rule .0504 of this Subchapter. For continuing education
purposes, the term "initial licensure" shall include the first time
that a license of a particular type is issued to a person, and the
reinstatement of a revoked or surrendered license, and any or a
license expired for more than six months.
Authority G.S. 93A-3(c); 93A-4A.
SECTION .1800 - LIMITED NONRESIDENT
COMMERCIAL LICENSING
21 NCAC 58A .1807 AFFILIATION WITH RESIDENT
BROKER
(a) No person licensed under this Section shall enter North
Carolina to perform any act or service for which licensure as a
real broker or salesperson is required unless he or she has first
entered into a brokerage cooperation agreement and declaration
of affiliation with an individual who is a resident in North
Carolina licensed as a North Carolina real estate broker.
(b) A brokerage cooperation agreement as contemplated by this
Rule shall be in writing and signed by the resident North
Carolina broker and the non-resident commercial licensee. It
shall contain:
PROPOSED RULES
19:14 NORTH CAROLINA REGISTER January 18, 2005
1153
(1) the material terms of the agreement between
the signatory licenses;
(2) a description of the agency relationships, if
any, which are created by the agreement
among the nonresident commercial licensee,
the resident North Carolina broker, and the
parties each represents;
(3) a description of the property or the identity of
the parties and other information sufficient to
identify the transaction which is the subject of
the affiliation agreement; and
(4) a definite expiration date.
(c) A declaration of affiliation shall be written and on the form
prescribed by the Commission and shall identify the nonresident
commercial licensee and the affiliated resident North Carolina
licensee. It shall also contain a description of the duties and
obligations of each as required by the North Carolina Real Estate
License Law and rules duly adopted by the Commission. The
declaration of affiliation may be a part of the brokerage
cooperation agreement or separate from it.
(d) A nonresident commercial licensee may affiliate with more
than one resident North Carolina broker at any time. However, a
nonresident commercial licensee may be affiliated with only one
resident North Carolina broker in a single transaction.
(e) A resident North Carolina broker who enters into a
brokerage cooperation agreement and declaration of affiliation
with a nonresident commercial licensee shall:
(1) verify that the nonresident commercial
licensee is licensed in North Carolina;
(2) actively and personally supervise the
nonresident commercial licensee in a manner
which reasonably insures that the nonresident
commercial licensee complies with the North
Carolina Real Estate License Law and rules
adopted by the Commission; and
(3) promptly notify the Commission if the
nonresident commercial licensee violates the
Real Estate License Law or rules adopted by
the Commission; and
(4) insure that records are retained in accordance
with the requirements of the Real Estate
License Law and rules adopted by the
Commission. Commission; and
(5) maintain his or her license on active status
continuously for the duration of the brokerage
cooperation agreement and the declaration of
affiliation.
(f) The nonresident commercial licensee and the affiliated
resident North Carolina broker shall each retain in his or her
records a copy of brokerage cooperation agreements and
declarations of affiliation from the time of their creation and for
at least three years following their expiration. Such records shall
be made available for inspection and reproduction by the
Commission or its authorized representatives without prior
notice.
Authority G.S. 93A-4; 93A-9.
SUBCHAPTER 58C - REAL ESTATE
PRELICENSING EDUCATION
SECTION .0200 - PRIVATE REAL ESTATE SCHOOLS
21 NCAC 58C .0205 ADDITIONAL COURSE
OFFERINGS
A school that is also a Commission-approved sponsor of
continuing education courses under Section .0100 or Section
.0300 of Subchapter 58E may offer such continuing education
courses in accordance with Commission rules governing such
courses and sponsors. Schools may also offer courses in
addition to those described in Section .0300 of this Subchapter
or Sections .0100 and .0300 of Subchapter 58E provided that
references to such courses are not made or published in a manner
which implies that such courses are sanctioned by the
Commission. However, if licensure as a private business or
trade school under G.S. 115D-90 is required in order for the
school to offer such additional courses, courses that are not
approved by the Commission, then the school must obtain such
license prior to offering such additional courses.
Authority G.S. 93A-4(a),(d); 93A-33.
21 NCAC 58C .0207 FACILITIES AND EQUIPMENT
(a) All school facilities and equipment shall be in compliance
with all applicable local, state and federal laws and regulations
regarding safety, health, safety and sanitation, welfare, including
the Americans with Disabilities Act and other laws relating to
accessibility standards for places of public accommodation.
Schools shall furnish the Commission with inspection reports
from appropriate local building, health and fire inspectors upon
request of the Commission.
(b) Classrooms shall be of sufficient size to accommodate
comfortably all students enrolled in a course, shall have
adequate light, heat, cooling and ventilation and shall be free of
distractions which would disrupt class sessions.
(c) Classrooms shall contain, at a minimum, an overhead
projector and student desks or worktables sufficient to
accommodate all students enrolled in a course.
Authority G.S. 93A-4(a),(d); 93A-33.
SECTION .0600 – PRE-LICENSING
INSTRUCTORS
21 NCAC 58C .0603 APPLICATION AND CRITERIA
FOR ORIGINAL APPROVAL
(a) An individual seeking original approval as a pre-licensing
course instructor shall make application on a form provided by
the Commission. An applicant who is not a resident of North
Carolina shall also file with the application a consent to service
of process and pleadings. No application fee shall