North Carolina § 90-210 - 69. Rulemaking; enforcement of Article; judicial review; determination of penalty amount.

§ 90-210. 69. Rulemaking; enforcement of Article; judicial review; determination of penalty amount.

The Board is authorized to adopt rules for the carrying out and enforcement of the provisions of this Article. The Board may perform such other acts and exercise such other powers and duties as are authorized by this Article and by Article 13A of this Chapter to carry out its powers and duties. The Board may administer oaths and issue subpoenas requiring the attendance of persons and the production of papers and records in any investigation conducted by it. Members of the Board's staff or the sheriff or other appropriate official of any county of this State shall serve all notices, subpoenas and other papers given to them by the Board for service in the same manner as process issued by any court of record. Any person who does not obey a subpoena issued by the Board shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined or imprisoned in the discretion of the court. In accordance with the provisions of Chapter 150B of the General Statutes, if the Board finds that a licensee, an applicant for a license or an applicant for license renewal is guilty of one or more of the following, the Board may refuse to issue or renew a license or may suspend or revoke a license or place the holder thereof on probation upon conditions set by the Board, with revocation upon failure to comply with the conditions: Offering to engage or engaging in activities for which a license is required under this Article but without having obtained such a license. Aiding or abetting an unlicensed person, firm, partnership, association, corporation or other entity to offer to engage or engage in such activities. A crime involving fraud or moral turpitude by conviction thereof. Fraud or misrepresentation in obtaining or receiving a license in preneed funeral planning or in the operation of a licensee's business. False or misleading advertising. Violating or cooperating with others to violate any provision of this Article, the rules and regulations of the Board, or the standards set forth in Funeral Industry Practices, 16 C.F.R. 453 (1984), as amended from time to time. Denial, suspension, or revocation of an occupational or business license by another jurisdiction. Any proceedings pertaining to or actions against a funeral establishment under this Article may be in addition to any proceedings or actions permitted by G.S. 90-210.25(d)(4). Any proceedings pertaining to or actions against a person licensed for funeral directing or funeral service may be in addition to any proceedings or actions permitted by G.S. 90-210.25 (e)(1) and (2). Judicial review shall be pursuant to Article 4 of Chapter 150B of the General Statutes. In determining the amount of any penalty imposed or assessed under Article 13 of Chapter 90 of the General Statutes, the Board shall consider: The degree and extent of harm to the public health, safety, and welfare, or to property, or the potential for harm. The duration and gravity of the violation. Whether the violation was committed willfully or intentionally or reflects a continuing pattern. Whether the violation involved elements of fraud or deception either to the public or to the Board, or both. The violator's prior disciplinary record with the Board. Whether and the extent to which the violator profited by the violation. In any case in which the Board is authorized to take any of the actions permitted under this subsection, the Board may instead accept an offer in compromise of the charges whereby the accused shall pay to the Board a penalty of not more than five thousand dollars ($5,000). In any case in which the Board is entitled to place a licensee on a term of probation, the Board may also impose a penalty of not more than five thousand dollars ($5,000) in conjunction with such probation. The Board may determine the length and conditions of any period of probation, revocation, suspension, or refusal to issue or renew a license. History (1969, c. 187, s. 7; 1983, c. 657, s. 4; 1985, c. 12, s. 1; 1991 (Reg. Sess., 1992), c. 901, s. 2; 1997-399, ss. 29, 30; 2001-294, s. 11; 2004-203, s. 7; 2007-531, s. 15; 2018-78, s. 12.) Editor's Note. - Session Laws 2018-78, s. 23, is a severability clause. Effect of Amendments. - Session Laws 2004-203, s. 7, effective August 17, 2004, deleted "adopted" preceding "or the standards" in subdivision (c)(6). Session Laws 2007-531, s. 15, effective August 31, 2007, added subdivision (c)(7). Session Laws 2018-78, s. 12, effective October 1, 2018, in subsection (c), rewrote subdivision (c)(4) which formerly read: "Fraud or misrepresentation in obtaining or receiving a license or in preneed funeral planning", and added the last sentence in the last paragraph.