SECTION
.0600 ‑ Administrative Hearings: Procedures
.0601
Committee on Investigations
(a)
Upon receipt of a charge alleging misconduct against a licensee or registrant
of the Board, the Executive Director shall inform the accused party of the
nature of the charges as filed with the Board.
(b)
The accused party shall respond to the charges by filing a written answer with
the Board within 20 days of the receipt of the notification of charges.
(c) The complaining party shall be provided with a copy of
the accused party's answer and within 20 days from receipt thereof shall file a
reply to the accused party's answer.
(d)
The charges as filed with the Board, the answer and reply may be referred to
the Committee on Investigations (hereinafter referred to as "Committee").
The Committee shall consist of three members of the Board, one of whom shall
serve as chairman.
(e) The Committee
shall investigate the complaint referred to it by the Board and as part of the
investigation may:
(1)
Assign the complaint to the Board's investigator who shall submit a written
report to the Committee.
(2)
Invite the complaining party and the accused party before the Committee to
receive their oral statements, but neither party shall be compelled to attend.
(3)
Conduct any other type of investigation as is deemed appropriate by the
Committee.
(f)
Upon the completion of the investigation, the Committee shall determine whether
or not there is probable cause to believe that the accused party has violated
any standard of misconduct which would justify a disciplinary hearing based
upon the grounds as specified in Article 11 of Chapter 90 of the North Carolina
General Statutes or this Chapter.
(g)
If probable cause is found, the Committee shall direct the legal counsel for
the Board to file a Notice of Hearing.
(h)
If probable cause is found, but it is determined that a disciplinary hearing is
not warranted, the Committee may issue a reprimand to the accused party. A
statement of such reprimand shall be mailed to the accused party. Within 15
days after receipt of the reprimand, the accused party may refuse the reprimand
and request that Notice of Hearing be issued pursuant
to Chapter 150B of the North Carolina General Statutes or this Chapter. Such
refusal and request shall be addressed to the Committee and filed with the
Executive Director for the Board. The legal counsel for the Board shall
thereafter prepare and file a Notice of Hearing. If the letter of reprimand is
accepted, a record of the reprimand shall be maintained in the office of the
Board.
(i) If no probable cause is found, the Committee shall
dismiss the charges and prepare a statement of the reasons therefore which
shall be mailed to the accused party and the complaining party.
(j)
If no probable cause is found, but it is determined by the Committee that the
conduct of the accused party is not in accord with accepted professional
practice or may be the subject of discipline if continued or repeated, the
Committee may issue a letter of caution to the accused party stating that the
conduct, while not the basis for a disciplinary hearing, is not professionally
acceptable or may be the basis for a disciplinary hearing if repeated. A record of such letter of caution shall be
maintained in the office of the Board.
(k)
A Board member who has served on the Committee is deemed disqualified to act as
a presiding officer or member of the Board assigned to render a decision in any
administrative disciplinary proceeding brought pursuant to a Notice of Hearing
for which that member has sat in an investigative capacity as a member or
chairman of the Committee.
(l)
The Board may assess and recover against persons holding licenses, limited
licenses, temporary permits, faculty certificates, Zoo veterinary certificates
or any certificates of registration issued by the Board, costs incurred by the
Board for the following expenses, respectively, that have been incurred by the
Board in the investigation, prosecution, hearing or other administrative action
in final decisions or orders where those persons are found to have violated the
Veterinary Practice Act or Administrative Rules of the Board:
(1)
legal expenses, including reasonable attorney fees,
incurred by the Board; and
(2)
witness fees and statutorily-allowed expenses for
witnesses; and
(3)
direct costs of the Board in taking or obtaining of
depositions of witnesses; and
(4)
costs incurred by reason of administrative or staff
time of employees of the Board directly attributable to the action leading to the
final decision or order.
The
costs assessed may be assessed pursuant to final decision or orders entered
with or without the consent of the person holding the respective license,
registration permit or certificate; no costs referred to in this Paragraph
shall be assessed against a person holding a respective license, permit
registration or certificate for an investigation or action in the nature of
disciplinary action other than a final decision or order of the Board, unless
and except expressly consented to by said person in a Consent Order approved by
the Board.
(m)
A civil monetary penalty of up to five thousand dollars ($5,000) for each
violation of Article 11, G.S. 90 or Board rule may be
imposed and collected from a person holding a license (the word
"license" is as defined in G.S.
90-187.8(a)) upon a finding by the Board of the relevant factor or factors in G.S. 90-187.8(b)(1) through (6).
With respect to this subsection, the phrase "violation of Article 11, G.S. 90 or Board rule" shall be deemed to mean Article
11, G.S. 90, the Veterinary Practice Act, or the
rules of the Board, and shall include final decisions, orders, and consent
orders, letters of reprimand and other permitted disciplinary actions, but it
expressly excludes letters of caution issued by the Board.
History Note: Authority
Eff.
Amended Eff.
.0602 Right to
Hearing
When
the Board acts or proposes to act, other than in rule‑making or declaratory
ruling proceedings, in a manner which will affect the rights, duties, or
privileges of a specific, identifiable person, such person has the right to an
administrative hearing. When the Board proposes to act in such manner, it shall
give all such affected persons notice of their right to a hearing by mailing by
certified mail to them at their last known address a notice of the proposed
action and a notice of a right to a hearing.
History Note: Authority
Eff.
Readopted Eff.
Amended Eff.
.0603 Request for Hearing
(a)
Any time an individual believes that individual's rights, duties, or privileges
have been affected by the Board's administrative action, but has not received
notice of a right to an administrative hearing, that individual may file a
formal request for a hearing.
(b)
Before an individual may file a request, that individual is encouraged to
exhaust all reasonable efforts to resolve the issue informally with the Board.
(c) Subsequent to such informal action, if still
dissatisfied, the individual must submit a request to the Board's office, with
the request bearing the notation: REQUEST FOR ADMINISTRATIVE HEARING. The
request must contain the following information:
(1)
Name and address of the petitioner;
(2)
A concise statement of the action taken by the Board which is challenged;
(3)
A concise statement of the way in which the petitioner has been aggrieved; and
(4)
A clear and specific statement of request for a hearing.
(d)
The request will be acknowledged promptly and, if deemed appropriate by the
Board in accordance with Rule .0604 of this Section, a hearing will be
scheduled.
History Note: Authority G.S. 90‑185;
150B‑11; 150B‑38;
Eff.
Readopted Eff.
Amended Eff.
.0604 Granting
or Denying Hearing Requests
(a)
The Board shall grant a request for a hearing if it determines that the party
requesting the hearing is a "person aggrieved" within the meaning of G.S. 150B‑2(6).
(b)
The denial of request for a hearing shall be issued no later than 60 days after
the submission of the request. Such denial shall contain a statement of the
reasons for the denial of the request.
(c) Approval of a request for a hearing will be signified by
the issuing of a notice as required by G.S. 150B‑38(b) and explained in Rule .0605 of this Section.
History Note: Authority G.S. 90‑185;
150B‑11; 150B‑38;
Eff.
Readopted Eff.
Amended Eff.
.0605 Notice of
Hearing
(a)
The Board shall give the party or parties in a contested case a notice of
hearing not less than 15 days before the hearing. Said notice shall contain the
following information, in addition to the items specified in G.S. 150B‑38(b):
(1)
the name, position, address and telephone number of a
person at the offices of the Board to contact for further information or
discussion;
(2)
the date, time, and place for a pre‑hearing
conference, if any; and
(3)
any other information deemed relevant to informing the
parties as to the procedure of the hearing.
(b)
The Board shall give notice to all parties with a notice of hearing either
personally or by certified mail or, if those methods are unavailable, in
accordance with G.S. 1A‑1, Rule 4(j1). In the
event that notice is accomplished by certified mail, the delivery date on the
return receipt shall be the date of the service of notice.
(c) If the Board determines that the public health, safety
or welfare requires such action, it may issue an order summarily suspending a
license or registration. Upon service of the order, the licensee or registrant
to whom the order is directed shall immediately cease the practice of
veterinary medicine in
History Note: Authority
Eff.
Readopted Eff.
Amended Eff.
.0606 Who Shall
Hear Contested Cases
All
contested case hearings shall be conducted by the full Board or by a panel
consisting of at least a majority of the members of the Board provided,
however, the term "members" shall not be deemed to include a vacant
position of a board member, whether the vacancy is the result of resignation,
non-appointment, or other cause. When required by Chapter 150B of the North
Carolina Statutes the Board shall apply to the Office of Administrative
Hearings for the designation of an administrative law judge to hear the case
pursuant to G.S. 150B‑40(e).
History Note: Authority G.S. 90‑185;
150B‑38; 150B‑40;
Eff.
Readopted Eff.
Amended Eff.
.0607 Petition for Intervention
(a)
A person desiring to intervene in a contested case must file a written petition
with the Board's office. The request must bear the notation: PETITION TO
INTERVENE IN THE CASE OF (Name of Case).
(b) The petition must
include the following information:
(1)
the name and address of petitioner;
(2)
the business or occupation of petitioner, where
relevant;
(3)
a full identification of the hearing in which
petitioner is seeking to intervene;
(4)
the statutory or non‑statutory grounds for
intervention;
(5)
any claim or defense in respect of which intervention
is sought; and
(6)
a summary of the arguments or evidence petitioner
seeks to present.
(c) If the Board determines to allow intervention, notice of
that decision will be issued promptly to all parties and to the petitioner. In
cases of discretionary intervention, such notification will include a statement
of any limitations of time, subject matter, evidence, or whatever else is
deemed necessary that are imposed on the intervenor.
(d)
If the Board's decision is to deny intervention, the petitioner shall be
notified promptly. Such notice shall be in writing, identifying the reasons for
the denial, and shall be issued to the petitioner and all parties.
History Note: Authority
Eff.
Readopted Eff.
Amended Eff.
.0608 Types of
Intervention
(a)
Intervention of Right. A petition to intervene as of right, as provided in the North
Carolina Rules of Civil Procedure, Rule 24, will be granted if the petitioner
meets the criteria of that rule and the petition is timely.
(b)
Permissive Intervention. A petition to intervene permissively as provided in
the North Carolina Rules of Civil Procedure, Rule 24, will be granted if the
petitioner meets the criteria of that rule and the Board determines that:
(1)
There is sufficient legal or factual similarity between the petitioner's
claimed rights, privileges, or duties and those of the parties to the hearings;
and
(2)
Permitting intervention by the petitioner as a party would aid the purpose of
the hearing.
(c) Discretionary Intervention. The Board may allow
discretionary intervention, with whatever limits and restrictions are deemed
appropriate.
History Note: Authority G.S. 90‑185;
150B‑11; 150B‑38;
Eff.
Readopted Eff.
Amended Eff.
.0609 Informal
Procedures
(a)
The Board and the other party or parties may agree in advance to simplify the
hearing by: decreasing the number of issues to be contested at the hearing;
accepting the validity of certain proposed evidence; accepting the findings in
some other case with relevance to the case at hand; or agreeing to such other
matters as may expedite the hearing.
(b)
Informal disposition may be made of any contested case or any issue therein by
stipulation, agreement, or consent order at any time after Notice of Hearing or
during the proceedings.
History Note: Authority
Eff.
Readopted Eff.
Amended Eff.
.0610 Disqualification of Board Memebers
(a)
Self‑disqualification. If for any
reason a Board member determines that personal bias or other factors render
that member unable to conduct the hearing and perform all duties in an
impartial manner, that Board member shall voluntarily
decline to participate in the hearing or decision.
(b)
Petition for Disqualification. If for
any reason any party in a contested case believes that a Board member is
personally biased or otherwise unable to conduct the hearing and perform all
duties in an impartial manner, the party may file a sworn, notarized affidavit
with the Board. The title of such affidavit must bear the notation: AFFIDAVIT
OF DISQUALIFICATION OF BOARD MEMBER IN THE CASE OF (Name of Case).
(c) Contents of Affidavit. The affidavit must state all
facts the party deems to be relevant to the disqualification of the Board
member.
(d)
Timeliness of Affidavit. An affidavit of disqualification will be considered
timely if filed ten days before commencement of the hearing. Any other
affidavit will be considered timely provided it is filed at the first
opportunity after the party becomes aware of facts which give rise to a
reasonable belief that a Board member may be disqualified under this Rule.
(e) Procedure
for Determining Disqualification:
(1)
The Board will appoint a Board member to investigate the allegations of the
affidavit.
(2)
The investigator will report to the Board the findings of the investigation.
(3)
The Board shall decide whether to disqualify the challenged individual.
(4)
The person whose disqualification is to be determined will not participate in
the decision but may be called upon to furnish information to the other members
of the Board.
(5)
A record of proceedings and the reasons for any decision reached will be
maintained as part of the contested case record.
(6)
When a Board member is disqualified prior to the commencement of the hearing or
after the hearing has begun, such hearing will continue with the remaining
members sitting provided that the remaining members still constitute a majority
of the Board.
(7)
If disqualification of a Board member leaves less than a majority of the Board,
the Board shall petition the Office of Administrative Hearings to appoint an
administrative law judge to hear the contested case pursuant to G.S. 150B‑40(e).
(8)
Where a petition for disqualification is filed less than ten days before or
during the course of a hearing, the hearing shall continue with the challenged
Board member sitting. Petitioner shall have the opportunity to present evidence
supporting his petition, and the petition and any evidence relative thereto
presented at the hearing shall be made a part of the record. The Board, before
rendering its decision, shall decide whether the evidence justifies
disqualification. In the event of disqualification, the disqualified member
will not participate in further deliberation or decision of the case.
History Note: Authority
Eff.
Readopted Eff.
Amended Eff.
General Statutes Table of
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Administrative Code Table of
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