SECTION .0900 – VIOLATIONS AND CONTESTED CASE HEARINGS
.0901. APPLICANTS CONVICTED OF CRIMES
.0902. CHARGES AND PRELIMINARY PROCEDURES
.0903. PRELIMINARY DETERMINATION
.0904. ADMINISTRATIVE HEARING PROCEDURES
.0905. JUDICIAL REVIEW
.0906. LICENSE INELIGIBILITY AFTER VIOLATION
.0907. RESPONSIBILITY OF LICENSEES AND QUALIFIED INDIVIDUALS
.0909. MALPRACTICE FURTHER DEFINED
The Board shall not consider the examination application of a person who has been convicted of a crime involving fraud or moral turpitude until at least one year has elapsed following the applicant’s completion of the terms and conditions of any punishment for the conviction, except for unsupervised probation.
(a) The authority given to the Board’s executive director in this Rule shall include the executive director’s authority to delegate to other members of the Board’s staff.
(b) Charges filed pursuant to G.S. 87-47(a4) shall be handled according to the progressive steps set out in Paragraphs (c) through (f) of this Rule.
(c) A charge shall be handled initially by the executive director. The executive director may, recommend to the Board that the charge be dismissed as unfounded or trivial, without a hearing. Unless so recommended, the executive director shall:
(1) issue and cause to be served on the accused a written notice of violation, including a reprimand, or including an assessment of a civil penalty in a specific amount pursuant to G.S. 87-47(a3) and a reprimand; or
(2) give the accused written notice of the charge, including a request that the accused respond to it in writing within 20 days.
(d) The executive director may, upon receipt and evaluation of the response, recommend to the Board that the charge be dismissed as unfounded or trivial, without a hearing, or the executive director may turn the matter over to the Board’s disciplinary review committee.
(e) The disciplinary review committee will review regularly the actions of staff, and as to any particular matter, may take the actions outlined in paragraph (c) of this Rule or may schedule a conference before the Committee with the accused. If a conference is held, the Committee shall issue its findings in the form of a Recommended Order, that shall be provided to the accused and proposed for adoption by the full board as a Final Order in the absence of objection by the accused in 20 days.
(f) The Board shall review the report and recommendations of the Disciplinary Review Committee and as to any matter may, without a hearing, dismiss the charge as unfounded or trivial, adopt the unopposed recommendations of the Committee, schedule a hearing on matters not resolved, or set an administrative hearing on the charge, notice of which may include a statement that the Board shall accept an offer in compromise pursuant to G.S. 87-47(e).
(g) Before an administrative hearing is held, the Board may direct the disciplinary review committee to meet with the accused and the complainant in a final effort to effect a settlement.
(h) Each notice of violation shall include a statement of the right to request a hearing, pursuant to G.S. 87-47(a4).
The Rules establishing procedures for contested cases adopted by the Office of Administrative Hearings as contained in Title 26, Chapter 3 of the North Carolina Administrative Code are hereby incorporated by reference, including subsequent amendments and editions, for contested cases for which the Board has authority to adopt rules under G.S. 150B-38(h). Provided, however, that if the case is conducted under G.S. 150B-40(b), the presiding officer shall have the powers and duties given to the Chief Administrative Law Judge or the presiding administrative law judge in Title 26, Chapter 3 of the North Carolina Administrative Code and that 26 NCAC 3 .0101(2); .0102(a)(2); .0103; .0126; and .0128 shall not apply. Copies of Title 26, Chapter 3 of the North Carolina Administrative Code are on file in the Board’s office and may be obtained therefrom at the Board’s actual cost of copying and mailing.
Statutory Authority G.S. 87-47; 150B-43;
Eff. October 1, 1988; Amended Eff. February 1, 1990; Repealed Eff. February 1, 1996.
(a) Non-licensee. Any person, partnership, firm or corporation not duly licensed by the Board and found to be engaging or offering to engage in a given electrical contracting project in North Carolina shall be subject to the provisions of G.S. 87-48. Furthermore, such person, partnership, firm or corporation shall not be eligible for a qualifying examination or to obtain a license until the Board has found that any commitment to the project involving the person, partnership, firm or corporation has been voided and that the project, if continued, has been awarded to a person, partnership, firm or corporation duly licensed by the Board to engage or offer to engage in the project.
(b) Licensee. Any licensee of the Board found to be engaging or offering to engage in a given electrical contracting project in North Carolina exceeding the project limitations or scope of the licensee’s current license shall be subject to the provisions of G.S. 87-47 and 87-48. Furthermore, the licensee shall not be eligible to upgrade its license to a higher or general classification, or for a qualifying examination therefor, until the Board has found that any commitment to the project involving the licensee has been voided and that the project, if continued, has been awarded to a person, partnership, firm or corporation duly licensed by the Board to engage or offer to engage in the project.
(a) “Gross negligence” within the meaning of G.S. 87-47 means such lack of due care as evidences reckless disregard of human life or the safety of the person exposed to its dangerous effects, or creating a clear and present danger of personal injury, illness or property damage, or that entire want of care as would raise the presumption of a conscious indifference to the rights of others, which is equivalent to an intentional violation of the law.
(b) “Gross incompetence” refers to such lack of knowledge, supervision or technical competence as to correspond or create risk similar to the consequences of gross negligence.
(c) “Supervision” within the meaning of G.S. 87-43 refers to that degree of attendance, participation and oversight which is necessary and sufficient to ensure that the project is carried out in a workmanlike manner, with the requisite skill and that the installation is made properly, safely and in accordance with applicable codes and rules. Supervision means active onsite review of the work by a qualified individual while the work is in progress.
(a) The provisions of the North Carolina Building Code, including the provisions of the National Electrical Code as modified and adopted by the Building Code Council of North Carolina from time to time, is a minimum standard of competence applicable to contractors licensed by the Board. Malpractice consists in failure to design and install systems that meet or exceed the minimum standards of the North Carolina State Building Code, Manufacturer’s specifications and installation instructions and standards prevailing in the industry.
(b) Malpractice may consist in lack of knowledge of Code, Manufacturer’s specifications and industry standards, in a failure to apply such technical knowledge, in undertaking a project that is not planned and supervised, or in undertaking a project that the licensee may not reasonably expect to complete timely and in accordance with codes, specifications, and industry standards.
(c) Where work is carried out by employees of the licensee, failure to provide supervision of such employees, whether by consistent absence from the workplace or jobsite, or as demonstrated by the failure of the work to comply with this rule, also constitutes malpractice on the part of the licensee.
(d) Where more than one qualified individual, as defined in G.S.87-41.1(1) is employed at a firm, each such person is responsible for the work of the firm.
(a) A licensee of the Board shall ensure that a permit is obtained from the local Code Enforcement official before commencing any work for which a license is required by the Board and ensure that a request for final inspection is made by him, the general contractor or the owner within 10 days of completion of the work for which a license is required, absent agreement with both the owner and the local Code Enforcement official. Absent agreement with the local Code Enforcement official, the licensee is not relieved by the Board of responsibility to arrange inspection until a certificate of compliance or the equivalent is obtained from the local Code Enforcement official or the licensee has clear and convincing evidence of his effort to obtain same.
(b) A licensed contractor shall not allow a permit to be obtained or his license number to appear upon a permit except for work which he or his employees perform, over which he will provide general supervision until the completion of the work, for which he holds an executed contract with the licensed general contractor or property owner and for which he receives all contractual payments.
(c) The failure of a licensee or qualified individual to comply with the permit and inspection obligations outlined in this rule is considered by the Board as evidence of malpractice, gross incompetence or gross misconduct, in the use of license or qualification from the Board.
History Note: Authority G.S. 87-42; 87-43; 87-46; 153A-357; 160A-417;
Eff. July 1, 2011.
505 N. Greenfield Parkway, Suite 100, Garner, NC 27529