Bill Text: NC S112 | 2013-2014 | Regular Session | Amended
Bill Title: Create Jobs Through Regulatory Reform
Spectrum: Partisan Bill (Republican 3-0)
Status: (Engrossed - Dead) 2013-07-16 - Re-ref Com On Rules and Operations of the Senate [S112 Detail]
Download: North_Carolina-2013-S112-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2013
S 6
SENATE BILL 112*
Agriculture/Environment/Natural
Resources Committee Substitute Adopted 5/14/13
Third Edition Engrossed 5/15/13
House Committee Substitute Favorable 7/10/13
House Committee
Substitute #2 Favorable 7/10/13
Sixth Edition Engrossed 7/11/13
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Short Title: Create Jobs Through Regulatory Reform. |
(Public) |
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Sponsors: |
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Referred to: |
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February 21, 2013
A BILL TO BE ENTITLED
AN ACT to improve and streamline the regulatory process in order to stimulate job creation, to eliminate unnecessary regulation, and to make various other statutory changes.
The General Assembly of North Carolina enacts:
PART I. IMPROVE RULE‑MAKING PROCESS
SECTION 1. G.S. 150B‑2 is amended by adding a new subdivision to read:
"(7a) "Policy" means any nonbinding interpretive statement within the delegated authority of an agency that merely defines, interprets, or explains the meaning of a statute or rule. The term includes any document issued by an agency which is intended and used purely to assist a person to comply with the law, such as a guidance document."
SECTION 3. G.S. 150B‑21.4 reads as rewritten:
"§ 150B‑21.4. Fiscal notes on rules.
(a) State Funds. – Before an agency publishes in
the North Carolina Register the proposed text of adopts a permanent
rule change that would require the expenditure or distribution of funds subject
to the State Budget Act, Chapter 143C of the General Statutes it must submit
the text of the proposed rule change, an analysis of the proposed rule change,
and a fiscal note on the proposed rule change to the Office of State Budget and
Management and obtain certification from the Office of State Budget and
Management that the funds that would be required by the proposed rule
change are available. The agency shall submit the text of the proposed rule
change, an analysis of the proposed rule change, and a fiscal note on the
proposed rule change to the Office at the same time as the agency submits the
notice of text for publication pursuant to G.S. 150B‑21.2. The
fiscal note must state the amount of funds that would be expended or
distributed as a result of the proposed rule change and explain how the amount
was computed. The Office of State Budget and Management must certify a proposed
rule change if funds are available to cover the expenditure or distribution
required by the proposed rule change.
(a1) DOT Analyses. – In addition to the requirements of
subsection (a) of this section, any agency that adopts a rule affecting
environmental permitting of Department of Transportation projects shall conduct
an analysis to determine if the rule will result in an increased cost to the
Department of Transportation. The analysis shall be conducted and submitted to
the Board of Transportation before when the agency publishes
the proposed text of the rule change in the North Carolina Register.submits
the notice of text for publication. The agency shall consider any recommendations
offered by the Board of Transportation prior to adopting the rule. Once a rule
subject to this subsection is adopted, the Board of Transportation may submit
any objection to the rule it may have to the Rules Review Commission. If the
Rules Review Commission receives an objection to a rule from the Board of
Transportation no later than 5:00 P.M. of the day following the day the
Commission approves the rule, then the rule shall only become effective as
provided in G.S. 150B‑21.3(b1).
(b) Local Funds. – Before an agency publishes in
the North Carolina Register the proposed text ofadopts a permanent
rule change that would affect the expenditures or revenues of a unit of local
government, it must submit the text of the proposed rule change and a fiscal note
on the proposed rule change to the Office of State Budget and Management as
provided by G.S. 150B‑21.26, the Fiscal Research Division of the
General Assembly, the North Carolina Association of County Commissioners, and
the North Carolina League of Municipalities. The fiscal note must state the
amount by which the proposed rule change would increase or decrease
expenditures or revenues of a unit of local government and must explain how the
amount was computed.
(b1) Substantial Economic Impact. – Before an agency publishes
in the North Carolina Register the proposed text ofadopts a
permanent rule change that would have a substantial economic impact and that is
not identical to a federal regulation that the agency is required to adopt, the
agency shall prepare a fiscal note for the proposed rule change and have the
note approved by the Office of State Budget and Management. The agency may
request the Office of State Budget and Management to prepare the fiscal note
only after, working with the Office, it has exhausted all resources, internal
and external, to otherwise prepare the required fiscal note. If an agency
requests the Office of State Budget and Management to prepare a fiscal note for
a proposed rule change, that Office must prepare the note within 90 days after
receiving a written request for the note. If the Office of State Budget and
Management fails to prepare a fiscal note within this time period, the agency
proposing the rule change shall prepare a fiscal note. A fiscal note prepared
in this circumstance does not require approval of the Office of State Budget
and Management.
If an agency prepares the required fiscal note, the agency must submit the note to the Office of State Budget and Management for review. The Office of State Budget and Management shall review the fiscal note within 14 days after it is submitted and either approve the note or inform the agency in writing of the reasons why it does not approve the fiscal note. After addressing these reasons, the agency may submit the revised fiscal note to that Office for its review. If an agency is not sure whether a proposed rule change would have a substantial economic impact, the agency shall ask the Office of State Budget and Management to determine whether the proposed rule change has a substantial economic impact. Failure to prepare or obtain approval of the fiscal note as required by this subsection shall be a basis for objection to the rule under G.S. 150B‑21.9(a)(4).
As used in this subsection, the term "substantial
economic impact" means an aggregate financial impact on all persons
affected of at least five hundred thousand dollars ($500,000) one million
dollars ($1,000,000) in a 12‑month period. In analyzing substantial
economic impact, an agency shall do the following:
(1) Determine and identify the appropriate time frame of the analysis.
(2) Assess the baseline conditions against which the proposed rule is to be measured.
(3) Describe the persons who would be subject to the proposed rule and the type of expenditures these persons would be required to make.
(4) Estimate any additional costs that would be created by implementation of the proposed rule by measuring the incremental difference between the baseline and the future condition expected after implementation of the rule. The analysis should include direct costs as well as opportunity costs. Cost estimates must be monetized to the greatest extent possible. Where costs are not monetized, they must be listed and described.
(5) For costs that occur in the future, the agency shall determine the net present value of the costs by using a discount factor of seven percent (7%).
(b2) Content. – A fiscal note required by subsection (b1) of this section must contain the following:
(1) A description of the persons who would be affected by the proposed rule change.
(2) A description of the types of expenditures that persons affected by the proposed rule change would have to make to comply with the rule and an estimate of these expenditures.
(3) A description of the purpose and benefits of the proposed rule change.
(4) An explanation of how the estimate of expenditures was computed.
(5) A description of at least two alternatives to the proposed rule that were considered by the agency and the reason the alternatives were rejected. The alternatives may have been identified by the agency or by members of the public.
(c) Errors. – An erroneous fiscal note prepared in good faith does not affect the validity of a rule."
SECTION 4.(a) G.S. 150B‑21.2(c) reads as rewritten:
"(c) Notice of Text. – A notice of the proposed text of a rule must include all of the following:
(1) The text of the proposed rule.rule,
unless the rule is a readoption without substantive changes to the existing
rule proposed in accordance with G.S. 150B‑21.3A.
(2) A short explanation of the reason for the proposed rule and a link to the agency's Web site containing the information required by G.S. 150B‑19.1(c).
(3) A citation to the law that gives the agency the authority to adopt the rule.
(4) The proposed effective date of the rule.
(5) The date, time, and place of any public hearing scheduled on the rule.
(6) Instructions on how a person may demand a public hearing on a proposed rule if the notice does not schedule a public hearing on the proposed rule and subsection (e) of this section requires the agency to hold a public hearing on the proposed rule when requested to do so.
(7) The period of time during which and the person to whom written comments may be submitted on the proposed rule.
(8) If a fiscal note has been prepared for the rule, a statement that a copy of the fiscal note can be obtained from the agency.
(9) The procedure by which a person can object to a proposed rule and the requirements for subjecting a proposed rule to the legislative review process."
SECTION 4.(b) Part 2 of Article 2A of Chapter 150B of the General Statutes is amended by adding a new section to read:
"§ 150B‑21.3A. Periodic review and expiration of existing rules.
(a) Definitions. – For purposes of this section, the following definitions apply:
(1) Commission. – Means the Rules Review Commission.
(2) Committee. – Means the Joint Legislative Administrative Procedure Oversight Committee.
(3) Necessary with substantive public interest. – Means any rule for which the agency has received public comments within the past two years. A rule is also "necessary with substantive public interest" if the rule affects the property interest of the regulated public and the agency knows or suspects that any person may object to the rule.
(4) Necessary without substantive public interest. – Means a rule for which the agency has not received a public comment concerning the rule within the past two years. A "necessary without substantive public interest" rule includes a rule that merely identifies information that is readily available to the public, such as an address or a telephone number.
(5) Public comment. – Means written comments objecting to the rule, in whole or in part, received by an agency from any member of the public, including an association or other organization representing the regulated community or other members of the public.
(6) Unnecessary rule. – Means a rule that the agency determines to be obsolete, redundant, or otherwise not needed.
(b) Automatic Expiration. – Except as provided in subsection (d1) of this section, any rule for which the agency that adopted the rule has not conducted a review in accordance with this section shall expire on the date set in the schedule established by the Commission pursuant to subsection (d) of this section.
(c) Review Process. – Each agency subject to this Article shall conduct a review of the agency's existing rules at least once every 10 years in accordance with the following process:
(1) Step 1: The agency shall conduct an analysis of each existing rule and make an initial determination as to whether the rule is (i) necessary with substantive public interest, (ii) necessary without substantive public interest, or (iii) unnecessary. The agency shall then post the results of the initial determination on its Web site and invite the public to comment on the rules and the agency's initial determination. The agency shall also submit the results of the initial determination to the Office of Administrative Hearings for posting on its Web site. The agency shall accept public comment for no less than 60 days following the posting. The agency shall review the public comments and prepare a brief response addressing the merits of each comment. After completing this process, the agency shall submit a report to the Commission. The report shall include the following items:
a. The agency's initial determination.
b. All public comments received in response to the agency's initial determination.
c. The agency's response to the public comments.
(2) Step 2: The Commission shall review the reports received from the agencies pursuant to subdivision (1) of this subsection. If a public comment relates to a rule that the agency determined to be necessary and without substantive public interest or unnecessary, the Commission shall determine whether the public comment has merit and, if so, designate the rule as necessary with substantive public interest. For purposes of this subsection, a public comment has merit if it addresses the specific substance of the rule and relates to any of the standards for review by the Commission set forth in G.S. 150B‑21.9(a). The Commission shall prepare a final determination report and submit the report to the Committee for consultation in accordance with subdivision (3) of this subsection. The report shall include the following items:
a. The agency's initial determination.
b. All public comments received in response to the agency's initial determination.
c. The agency's response to the public comments.
d. A summary of the Commission's determinations regarding public comments.
e. A determination that all rules that the agency determined to be necessary and without substantive public interest and for which no public comment was received or for which the Commission determined that the public comment was without merit be allowed to remain in effect without further action.
f. A determination that all rules that the agency determined to be unnecessary and for which no public comment was received or for which the Commission determined that the public comment was without merit shall expire on the first day of the month following the date the report becomes effective in accordance with this section.
g. A determination that all rules that the agency determined to be necessary with substantive public interest or that the Commission designated as necessary with public interest as provided in this subdivision shall be readopted as though the rules were new rules in accordance with this Article.
(3) Step 3: The final determination report shall not become effective until the agency has consulted with the Committee. The determinations contained in the report pursuant to sub‑subdivisions e., f., and g. of subdivision (2) of this subsection shall become effective on the date the report is reviewed by the Committee. If the Committee does not hold a meeting to hear the consultation required by this subdivision within 60 days of receipt of the final determination report, the consultation requirement is deemed satisfied, and the determinations contained in the report become effective on the 61st day following the date the Committee received the report. If the Committee disagrees with a determination regarding a specific rule contained in the report, the Committee may recommend that the General Assembly direct the agency conduct a review of the specific rule in accordance with this section in the next year following the consultation.
(d) Timetable. – The Commission shall establish a schedule for the review of existing rules in accordance with this section on a decennial basis by assigning each Title of the Administrative Code a date by which the review required by this section must be completed. In establishing the schedule, the Commission shall consider the scope and complexity of rules subject to this section and the resources required to conduct the review required by this section. The Commission shall have broad authority to modify the schedule and extend the time for review in appropriate circumstances. Except as provided in subsection (d1) of this section, if the agency fails to conduct the review by the date set by the Commission, the rules contained in that Title which have not been reviewed will expire. The Commission may exempt rules that have been adopted or amended within the previous 10 years from the review required by this section. However, any rule exempted on this basis must be reviewed in accordance with this section no more than 10 years following the last time the rule was amended.
(d1) Rules to Conform to or Implement Federal Law. – Rules adopted to conform to or implement federal law shall not expire as provided by this section. The Commission shall report annually to the Committee on any rules that do not expire pursuant to this subsection.
(e) Other Reviews. – Notwithstanding any provision of this section, an agency may subject a rule that it determines to be unnecessary to review under this section at any time by notifying the Commission that it wishes to be placed on the schedule for the current year. The Commission may also subject a rule to review under this section at any time by notifying the agency that the rule has been placed on the schedule for the current year."
SECTION 4.(c) G.S. 150B‑19.2 is repealed.
SECTION 4.(d) If G.S. 150B‑21.3A, as enacted by subsection (b) of this section, becomes law, the Rules Review Commission shall subject rules adopted by the Environmental Management Commission related to surface water quality and wetlands to review in the first year that the Rules Review Commission establishes for the review of existing rules in accordance with G.S. 150B‑21.3A.
SECTION 5. The Joint Legislative Administrative Procedure Oversight Committee shall undertake a study of the exemptions from rule making contained in G.S. 150B‑1(d) and elsewhere in the General Statutes. For each exemption, the Committee shall evaluate the continued need for the exemption and the potential consequences of repeal of the exemption. The Committee shall report to the 2014 Session of the 2013 General Assembly on its findings and recommendations, including any legislative recommendations for the repeal of exemptions.
PART II. STATE AND LOCAL GOVERNMENT REGULATIONS
PROHIBIT DELAYED ENFORCEMENT OF LOCAL ORDINANCES AND PROHIBIT CERTAIN CONTRACT REQUIREMENTS BY LOCAL GOVERNMENTS
SECTION 6.(a) G.S. 153A‑348 is amended by adding a new subsection to read:
"(d) When a use constituting a violation of a zoning or unified development ordinance is in existence prior to adoption of the zoning or unified development ordinance creating the violation, and that use is grandfathered and subsequently terminated for any reason, a county shall bring an enforcement action within 10 years of the date of the termination of the grandfathered status, unless the violation poses an imminent hazard to health or public safety."
SECTION 6.(b) G.S. 160A‑364.1 is amended by adding a new subsection to read:
"(d) When a use constituting a violation of a zoning or unified development ordinance is in existence prior to adoption of the zoning or unified development ordinance creating the violation, and that use is grandfathered and subsequently terminated for any reason, a city shall bring an enforcement action within 10 years of the date of the termination of the grandfathered status, unless the violation poses an imminent hazard to health or public safety."
SECTION 6.(c) G.S. 153A‑449 reads as rewritten:
"§ 153A‑449. Contracts with private entities.
A county may contract with and appropriate money to any person, association, or corporation, in order to carry out any public purpose that the county is authorized by law to engage in. A county may not require a private contractor under this section to abide by any restriction that the county could not impose on all employers in the county, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract."
SECTION 6.(d) G.S. 160A‑20.1 reads as rewritten:
"§ 160A‑20.1. Contracts with private entities.
A city may contract with and appropriate money to any person, association, or corporation, in order to carry out any public purpose that the city is authorized by law to engage in. A city may not require a private contractor under this section to abide by any restriction that the city could not impose on all employers in the city, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract."
SECTION 6.(e) This section is effective when it becomes law and applies to zoning and unified development ordinances adopted before, on, or after the effective date of this act and to contracts entered on or after that date.
EQUAL TREATMENT FOR FRATERNITIES AND SORORITIES BY LOCAL GOVERNMENT
SECTION 7.(a) G.S. 153A‑340 is amended by adding a new subsection to read:
"(k) A zoning or unified development ordinance may not differentiate in terms of the regulations applicable to fraternities or sororities between those fraternities or sororities that are approved or recognized by a college or university and those that are not."
SECTION 7.(b) G.S. 160A‑381 is amended by adding a new subsection to read:
"(g) A zoning or unified development ordinance may not differentiate in terms of the regulations applicable to fraternities or sororities between those fraternities or sororities that are approved or recognized by a college or university and those that are not."
SECTION 7.(c) Part 3 of Article 1 of Chapter 116 of the General Statutes is amended by adding a new section to read:
"§ 116‑40.11. Disciplinary proceedings; right to counsel for students and organizations.
(a) Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or nonattorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student shall not have the right to be represented by a licensed attorney or nonattorney advocate in either of the following circumstances:
(1) If the constituent institution has implemented a "Student Honor Court" which is fully staffed by students to address such violations.
(2) For any allegation of "academic dishonesty" as defined by the constituent institution.
(b) Any student organization officially recognized by a constituent institution that is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or nonattorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student organization shall not have the right to be represented by a licensed attorney or nonattorney advocate if the constituent institution has implemented a "Student Honor Court" which is fully staffed by students to address such violations."
SECTION 7.(d) Subsection (c) of this section is effective when it becomes law and applies to all allegations of violations beginning on or after that date.
AMEND PRIVATE CLUB DEFINITION
SECTION 8. G.S. 130A‑247 reads as rewritten:
"§ 130A‑247. Definitions.
The following definitions shall apply throughout this Part:
…
(2) "Private club" means an organization that
(i) maintains selective members, is operated by the membership, does not
provide food or lodging for pay to anyone who is not a member or a member's
guest, and is either incorporated as a nonprofit corporation in accordance with
Chapter 55A of the General Statutes or is exempt from federal income tax under
the Internal Revenue Code as defined in G.S. 105‑130.2(1).G.S. 105‑130.2(1)
or (ii) meets the definition of a private club set forth in G.S. 18B‑1000(5).
…."
OUTDOOR ADVERTISING AMENDMENTS
SECTION 9.(a) G.S. 136‑133.1 reads as rewritten:
"§ 136‑133.1. Outdoor advertising vegetation cutting or removal.
…
(a1) Notwithstanding any law to the contrary, in order to promote the outdoor advertiser's right to be clearly viewed as set forth in G.S. 136‑127, the Department of Transportation, at the request of a selective vegetation removal permittee, may approve plans for the cutting, thinning, pruning, or removal of vegetation outside of the cut or removal zone defined in subsection (a) of this section along acceleration or deceleration ramps so long as the view to the outdoor advertising sign will be improved and the total aggregate area of cutting or removal does not exceed the maximum allowed in subsection (a) of this section.
…
(f) Tree branches within a highway right‑of‑way
that encroach into the zone created by points A, C, and DB, D, and E
may be cut or pruned. Except as provided in subsection (g) of this section, no
person, firm, or entity shall cut, trim, prune, or remove or otherwise cause to
be cut, trimmed, pruned, or removed vegetation that is in front of, or adjacent
to, outdoor advertising and within the limits of the highway right‑of‑way
for the purpose of enhancing the visibility of outdoor advertising unless
permitted to do so by the Department in accordance with this section, G.S. 136‑93(b),
136‑133.2, and 136‑133.4.
…."
SECTION 9.(b) Article 11 of Chapter 136 of the General Statutes is amended by adding a new section to read:
"§ 136‑131.2. Modernization of outdoor advertising devices.
No municipality, county, local or regional zoning authority, or other political subdivision shall, without the payment of just compensation as provided for in G.S. 136‑131.1, regulate or prohibit the repair or reconstruction of any outdoor advertising for which there is in effect a valid permit issued by the Department of Transportation so long as the square footage of its advertising surface area is not increased. As used in this section, reconstruction includes the changing of an existing multipole outdoor advertising structure to a new monopole structure."
DISPOSITION OF DMH/DD/SAS RECORDS
SECTION 10. The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall amend its Records Retention and Disposition Schedule Manual to provide that if a Medicaid service has been eliminated by the State, the provider must retain records for three years after the last date of the service, unless a longer period is required by federal law. At the termination of that time period, records may be destroyed or transferred to a State agency or contractor identified by the Department of Health and Human Services.
STUDY OCCUPATIONAL LICENSING BOARD AGENCY
SECTION 11.(a) The Joint Legislative Program Evaluation Oversight Committee shall include in the 2013‑2014 Work Plan for the Program Evaluation Division of the General Assembly a study to evaluate the structure, organization, and operation of the various independent occupational licensing boards. For purposes of this act, the term "occupational licensing board" has the same meaning as defined in G.S. 93B‑1. The Program Evaluation Division shall include the following within this study:
(1) Consideration of the feasibility of establishing a single State agency to oversee the administration of all or some of the occupational licensing boards.
(2) Whether greater efficiency and cost‑effectiveness can be realized by combining the administrative functions of the boards while allowing the boards to continue performing the regulatory functions.
(3) Whether the total number of boards should be reduced by combining and/or eliminating some boards.
SECTION 11.(b) The Program Evaluation Division shall submit its findings and recommendations from Section 23(a) of this act to the Joint Legislative Program Evaluation Oversight Committee and the Joint Legislative Administrative Procedure Oversight Committee at a date to be determined by the Joint Legislative Program Evaluation Oversight Committee.
SECTION 11.(c) This section is effective when it becomes law.
INDUSTRIAL COMMISSION
SECTION 12.(a) G.S. 97‑78(b) reads as rewritten:
"(b) The Commission may appoint an administrator
whose duties shall be prescribed by the Commission, and who shall be subject
to the State Personnel System.Commission. The Commission may appoint
an executive secretary whose duties shall be prescribed by the Commission, and
who shall be subject to the State Personnel System and who, upon entering
upon his duties, shall give bond in such sum as may be fixed by the Commission.
The Commission may also employ such clerical or other assistance as it may deem
necessary, and fix the compensation of its staff, except that the salaries of
the administrator and the executive secretary shall be fixed by subsection (b1)
of this section. The compensation of Commission staff shall be in keeping with
the compensation paid to the persons employed to do similar work in other State
departments."
SECTION 12.(b) G.S. 97‑79(b) reads as rewritten:
"(b) The Commission may appoint deputies who shall
have the same power as members of the Commission pursuant to G.S. 97‑80
and the same power to take evidence, and enter orders, opinions, and awards
based thereon as is possessed by the members of the Commission. The deputies
shall be subject to the State Personnel System.Deputies appointed
pursuant to this subsection shall not be considered hearing officers within the
meaning of G.S. 126‑5(d)(7)."
PROHIBIT TRANSPORTATION IMPACT MITIGATION ORDINANCES
SECTION 13.(a) Article 8 of Chapter 160A of the General Statutes is amended by adding a new section to read as follows:
"§ 160A‑204. Transportation impact mitigation ordinances prohibited.
No city may enact or enforce an ordinance, rule, or regulation that requires an employer to assume financial, legal, or other responsibility for the mitigation of the impact of their employees' commute or transportation to or from the employer's workplace, which may result in the employer being subject to a fine, fee, or other monetary, legal, or negative consequences."
SECTION 13.(b) Article 6 of Chapter 153A of the General Statutes is amended by adding a new section to read as follows:
"§ 153A‑145.1. Transportation impact mitigation ordinances prohibited.
No county may enact or enforce an ordinance, rule, or regulation that requires an employer to assume financial, legal, or other responsibility for the mitigation of the impact of their employees' commute or transportation to or from the employer's workplace, which may result in the employer being subject to a fine, fee, or other monetary, legal, or negative consequences."
CLARIFY LOCAL GOVERNMENT PREEMPTION
SECTION 13.1. G.S. 160A‑174(b) reads as rewritten:
"(b) A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:
(1) The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution;
(2) The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law;
(3) The ordinance makes lawful an act, omission, or condition which is expressly made unlawful by State or federal law;
(4) The ordinance purports to regulate a subject that cities are expressly forbidden to regulate by State or federal law;
(5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation;
(5a) The ordinance regulates a field that is also regulated by a State or federal statute enforced by an environmental agency and the ordinance is more stringent than the State or federal statute;
(5b) The ordinance regulates a field that is also regulated by a rule adopted by an environmental agency and the ordinance is more stringent than the rule;
(6) The elements of an offense defined by a city ordinance are identical to the elements of an offense defined by State or federal law.
The Except as provided in subdivisions (5a) and (5b)
of this subsection, the fact that a State or federal law, standing alone,
makes a given act, omission, or condition unlawful shall not preclude city
ordinances requiring a higher standard of conduct or condition.
(c) The limitations set forth in subdivisions (5a) and (5b) of subsection (b) of this section do not apply to any ordinance if adoption of the ordinance was and continues to be required by one of the following:
(1) A serious threat to the public health, safety, or welfare that is related to local conditions and not adequately addressed in statewide statutes and rules adopted or enforced by an environmental agency. (2) An act of the General Assembly or United States Congress that expressly requires the city to adopt an ordinance.
(3) A provision in federal or State budgetary policy.
(4) A federal regulation required by an act of the United States Congress to be adopted or administered by the State.
(5) A court order.
(6) A unique geographic, meteorological, or environmental condition and the city complies with the requirements of subsection (d) of this section.
(7) A condition necessary to achieve discounted flood insurance rates under the National Flood Insurance Program.
(d) Notwithstanding subdivisions (5a) and (5b) of subsection (b) of this section, a city may adopt an ordinance which is more stringent than a State or federal statute or rule only if the city satisfies all of the following requirements:
(1) The ordinance addresses a unique geographic, meteorological, or environmental condition that the city can demonstrate by substantial evidence is not adequately met by the less stringent State or federal statute or rule.
(2) The city adopted the ordinance by a three‑fourths vote of the council members present and voting.
(3) Before the ordinance becomes effective, the city demonstrates to the satisfaction of the environmental agency that regulates the subject of the ordinance that a more stringent requirement is necessary and in the best interest of the public health or safety. The ordinance shall not become effective unless the environmental agency approves it within 60 days of receipt from the city.
(e) For purposes of this section, "an environmental agency" means any of the following:
(1) The Department of Environment and Natural Resources created pursuant to G.S. 143B‑279.1.
(2) The Environmental Management Commission created pursuant to G.S. 143B‑282.
(3) The Coastal Resources Commission established pursuant to G.S. 113A‑104.
(4) The Marine Fisheries Commission created pursuant to G.S. 143B‑289.51.
(5) The Wildlife Resources Commission created pursuant to G.S. 143‑240.
(6) The Commission for Public Health created pursuant to G.S. 130A‑29, when regulating pursuant to the authority granted by Articles 9, 10, 11, 19, 19A, and 19B of Chapter 130A of the General Statutes.
(7) The Sedimentation Control Commission created pursuant to G.S. 143B‑298.
(8) The Mining and Energy Commission created pursuant to G.S. 143B‑293.1.
(9) The Pesticide Board created pursuant to G.S. 143‑436.
(f) Nothing in this section shall preempt an ordinance enacted by a city prior to July 1, 2013, that prohibits placement of new billboards within the jurisdiction of the city."
SECTION 13.2. G.S. 153A‑121 is amended by adding a new subsection to read:
"(a1) A county ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:
(1) The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution;
(2) The ordinance makes unlawful an act, omission, or condition which is expressly made lawful by State or federal law;
(3) The ordinance makes lawful an act, omission, or condition which is expressly made unlawful by State or federal law;
(4) The ordinance purports to regulate a subject that counties are expressly forbidden to regulate by State or federal law;
(5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation;
(6) The ordinance regulates a field that is also regulated by a State or federal statute enforced by an environmental agency and the ordinance is more stringent than the State or federal statute;
(7) The ordinance regulates a field that is also regulated by a rule adopted by an environmental agency and the ordinance is more stringent than the rule;
(8) The elements of an offense defined by a county ordinance are identical to the elements of an offense defined by State or federal law.
Except as provided in subdivisions (6) and (7) of this subsection, the fact that a State or federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude county ordinances requiring a higher standard of conduct or condition.
(a2) The limitations set forth in subdivisions (6) and (7) of subsection (a1) of this section do not apply to any ordinance if adoption of the ordinance was and continues to be required by one of the following:
(1) A serious threat to the public health, safety, or welfare that is related to local conditions and not adequately addressed in statewide statutes and regulations adopted or enforced by an environmental agency.
(2) An act of the General Assembly or United States Congress that expressly requires the county to adopt an ordinance.
(3) A provision in federal or State budgetary policy.
(4) A federal regulation required by an act of the United States Congress to be adopted or administered by the State.
(5) A court order.
(6) A unique geographic, meteorological, or environmental condition and the county complies with the requirements of subsection (a3) of this section.
(7) A condition necessary to achieve discounted flood insurance rates under the National Flood Insurance Program.
(a3) Notwithstanding subdivisions (6) and (7) of subsection (a1) of this section, a county may adopt an ordinance which is more stringent than a State or federal statute or rule only if the county satisfies all of the following requirements:
(1) The ordinance addresses a unique geographic, meteorological, or environmental condition that the county can demonstrate by substantial evidence is not adequately met by the less stringent State or federal statute or rule.
(2) The county adopted the ordinance by a three‑fourths vote of the board of commissioners present and voting.
(3) Before the ordinance becomes effective, the county demonstrates to the satisfaction of the environmental agency that regulates the subject of the ordinance that a more stringent requirement is necessary and in the best interest of the public health or safety. The ordinance shall not become effective unless the environmental agency approves it within 60 days of receipt from the county.
(a4) For purposes of this section, "an environmental agency" means any of the following:
(1) The Department of Environment and Natural Resources created pursuant to G.S. 143B‑279.1.
(2) The Environmental Management Commission created pursuant to G.S. 143B‑282.
(3) The Coastal Resources Commission established pursuant to G.S. 113A‑104.
(4) The Marine Fisheries Commission created pursuant to G.S. 143B‑289.51.
(5) The Wildlife Resources Commission created pursuant to G.S. 143‑240.
(6) The Commission for Public Health created pursuant to G.S. 130A‑29, when regulating pursuant to the authority granted by Articles 9, 10, 11, 19, 19A, and 19B of Chapter 130A of the General Statutes.
(7) The Sedimentation Control Commission created pursuant to G.S. 143B‑298.
(8) The Mining and Energy Commission created pursuant to G.S. 143B‑293.1.
(9) The Pesticide Board created pursuant to G.S. 143‑436.
(a5) Nothing in this section shall preempt an ordinance enacted by a county prior to July 1, 2013, that prohibits placement of new billboards within the jurisdiction of the county."
REPEAL PROTEST PETITIONS
SECTION 13.3.(a) G.S. 160A‑385(a) and G.S. 160A‑386 are repealed.
SECTION 13.3.(b) This section is effective when it becomes law. This section does not invalidate or otherwise affect any protest pending on the effective date of this section.
PART III. BUSINESS AND LABOR REGULATIONS
LET BED & BREAKFASTS OFFER THREE MEALS/DAY
SECTION 14.(a) G.S. 130A‑247 is amended by adding a new subdivision to read:
"(5a) "Bed and breakfast home" means a business in a private home of not more than eight guest rooms that offers bed and breakfast accommodations for a period of less than one week and that meets all of the following criteria:
a. Does not serve food or drink to the general public for pay.
b. Serves the breakfast meal, the lunch meal, the dinner meal, or a combination of all or some of these three meals, only to overnight guests of the home.
c. Includes the price of any meals served in the room rate.
d. Is the permanent residence of the owner or the manager of the business."
SECTION 14.(b) G.S. 130A‑248(a2) reads as rewritten:
"(a2) For the protection of the public health, the
Commission shall adopt rules governing the sanitation of private homes
offering bed and breakfast accommodations to eight or fewer persons per night,bed
and breakfast homes, as defined in G.S. 130A‑247, and rules
governing the sanitation of bed and breakfast inns inns, as
defined in G.S. 130A‑247. In carrying out this function, the
Commission shall adopt requirements that are the least restrictive so as to
protect the public health and not unreasonably interfere with the operation of bed
and breakfast homes and bed and breakfast inns."
SECTION 14.(c) This section becomes effective October 1, 2013.
PEO ACT AMENDMENTS
SECTION 15.(a) G.S. 58‑89A‑5(8) is repealed.
SECTION 15.(b) G.S. 58‑89A‑50 reads as rewritten:
"§ 58‑89A‑50. Surety bond; letter of credit; other deposits.
(a) An applicant for licensure shall file with the
Commissioner a surety bond for the benefit of the Commissioner as follows:
(1) If the applicant was initially licensed
prior to October 1, 2008, the bond, or other items as provided for in
subsection (f) of this section, shall be in the amount of one hundred thousand
dollars ($100,000).
(2) If the applicant was not initially
licensed prior to October 1, 2008, the bond, or other items as provided for in
subsection (f) of this section, shall be in an amount equal to five percent
(5%) of the applicant's prior year's total North Carolina wages, benefits,
workers compensation premiums, and unemployment compensation contributions, but
not greater than five hundred thousand dollars ($500,000), or such greater
amount as the Commissioner may require.
bond, or other items as set forth in subsection (f) of this section, in the amount of one hundred thousand dollars ($100,000) for the benefit of the Commissioner. An applicant whose current assets do not exceed current liabilities pursuant to G.S. 58‑89A‑60(b) shall file an additional surety bond or other items set forth in subsection (f) of this section equal to or in excess of current liabilities less current assets.
(b) The surety bond required by this section shall be in a form acceptable to the Commissioner, issued by an insurer authorized by the Commissioner to write surety business in this State, and maintained in force while the license remains in effect or any obligations or liabilities of the applicant, licensee or PEO previously licensed by this State remain outstanding.
(c) The surety bond required by this section may be exchanged or replaced with another surety bond if (i) the surety bond applies to obligations and liabilities that arose during the period of the original surety bond, (ii) the surety bond meets the requirements of this section, and (iii) 90 days' advance written notice is provided to the Commissioner.
(d) A licensee shall not require a client
company to contribute in any manner to the payment of the surety bond required
by this section.
…."
SECTION 15.(c) G.S. 58‑89A‑60(b) reads as rewritten:
"(b) Every applicant shall file with the
Commissioner evidence of financial responsibility. Evidence of financial
responsibility includes an audited GAAP financial statement, prepared as of
a date not more than 90 days before the date of application that demonstrates
that the applicant or licensee is not in a hazardous financial condition licensee's
current assets exceed current liabilities and attached to which is a
separate document signed by the chief executive and the chief financial officer
certifying that (i) each has reviewed the financial statement; (ii) based on
each signatory's knowledge, the financial statement does not contain any untrue
or misleading statement of material fact or omit a fact with respect to the
period covered by the financial statement; and (iii) based on each signatory's
knowledge, the financial statement fairly presents in all material respects the
financial condition of the licensee as of, and for, the period presented in the
financial statement.
Notwithstanding the requirements of this subsection, the Commissioner may, in the Commissioner's discretion, accept an audited GAAP financial statement that has been prepared more than 90 days before submission to the Commissioner if the Commissioner deems such acceptance appropriate. The Commissioner may, in the Commissioner's discretion, impose conditions upon such acceptance of financial statements prepared more than 90 days prior to submission.
The audited GAAP financial statement shall be prepared in accordance with generally accepted accounting principles and audited by an independent certified public accountant licensed to practice in the jurisdiction in which such accountant is located and shall be without qualification as to the going concern status of the PEO. A PEO group may submit combined or consolidated audited financial statements to meet the requirements of this section, except that a PEO that has not had sufficient operating history to have audited financial statements based upon at least 12 months of operating history must meet the financial capacity requirements of this subsection and present financial statements reviewed by a certified public accountant."
SECTION 15.(d) G.S. 58‑89A‑85 reads as rewritten:
"§ 58‑89A‑85. Supervision; rehabilitation; liquidation.
If at any time the Commissioner determines, after notice and
an opportunity for the licensee to be heard, that a licensee (i) has been or
will be unable, in such a manner as may endanger the ability of the licensee,
to fully perform its obligations pursuant to this Article or (ii) is bankrupt
or in a hazardous financial condition, bankrupt, the Commissioner
may either (i) commence a supervision proceeding pursuant to Article 30 of this
Chapter or (ii) apply to the Superior Court of Wake County or to the federal
bankruptcy court that has previously taken jurisdiction over the licensee, if
applicable, for an order directing the Commissioner or authorizing the
Commissioner to rehabilitate or to liquidate a licensee in accordance with
Article 30 of this Chapter."
SECTION 15.(e) G.S. 58‑89A‑95 reads as rewritten:
"§ 58‑89A‑95.
Agreement; notice.Agreement.
(a) A licensee shall establish the terms of a PEO agreement by a written contract between the licensee and the client company.
(b) The licensee shall give written notice of the
agreement, by agreement or otherwise, as it affects assigned employees to each
employee assigned to a client company work site. This written notice shall
be given to each assigned employee not later than the first payday after the
date on which that individual becomes an assigned employee.
(c) The licensee shall give each employee
written notice when the employee ceases to be an employee of the licensee."
SECTION 15.(f) G.S. 58‑89A‑100 reads as rewritten:
"§ 58‑89A‑100. Contract requirements.
A contract between a licensee and a client company shall provide:
(1) That the licensee reserves a right of direction
and control over employees assigned to a client company's work sites. However,
a Unless otherwise expressly agreed by a professional employer
organization and a client company in a PEO agreement, the client company may
retain such sufficient retains the exclusive right of direction and
control over the assigned employees as is necessary to conduct the client
company's business and without which the client company would be unable to
conduct its business, to discharge any fiduciary responsibility that it may
have, or to comply with any applicable licensure, regulatory, or statutory
requirement of the client company. company or an assigned employee. The
PEO agreement shall provide that employment responsibilities not allocated to
the licensee by the PEO agreement or this section remain with the client
company.
(2) That the licensee assumes responsibility for the payment of wages to the assigned employees as agreed to in the PEO agreement.
(3) That the licensee assumes responsibility for the payment of payroll taxes and collection of taxes from payroll on assigned employees.
(4) That the licensee reserves a right to hire,
fire, and discipline the assigned employees.That the licensee shall have
a right to hire, discipline, and terminate an assigned employee as may be
necessary to fulfill the licensee's responsibilities under this Chapter and a
PEO agreement. The client company shall have a right to hire, discipline, and
terminate an assigned employee.
(5) That the licensee retains a right of direction and control over the adoption of employment policies and the management of workers' compensation claims, claim filings, and related procedures in accordance with applicable federal laws and the laws of this State.
(6) That responsibility to obtain workers' compensation coverage for assigned employees, from an entity authorized to do business in this State and otherwise in compliance with all applicable requirements, shall be specifically allocated in the PEO agreement to either the client company or the licensee. If the responsibility is allocated to the licensee under any such agreement, that agreement shall require that the licensee maintain and provide to the client company, at the termination of the agreement if requested by the client company, records regarding the loss experience related to workers' compensation insurance provided to assigned employees pursuant to the agreement."
SECTION 15.(g) G.S. 58‑89A‑145 reads as rewritten:
"§ 58‑89A‑145. Examinations.
(a) The Commissioner may conduct an examination of a licensee as often as the Commissioner considers appropriate.
(b) An examination under this Article shall be conducted in accordance with the Examination Law of this Chapter, G.S. 58‑2‑131 through G.S. 58‑2‑134.
(c) In lieu of an examination of any foreign or alien person licensed under this Article, the Commissioner may, in the Commissioner's discretion, accept an examination report on the licensee prepared by the appropriate regulator for the licensee's state of domicile.
(d) When making an examination under this Article, the
Commissioner may retain attorneys, appraisers, independent actuaries,
independent certified public accountants, or other professionals and
specialists as examiners, the reasonable cost of which shall be borne by the
licensee that is the subject of the examination.may only be recovered
pursuant to G.S. 58‑89A‑65(d)."
SECTION 15.(h) G.S. 58‑89A‑155(a)(4) is repealed.
SECTION 15.(i) This section becomes effective October 1, 2013.
CHILD CARE PROVIDERS' CRIMINAL HISTORY CHECKS
SECTION 16.(a) G.S. 110‑90.2(a) is amended by adding a new subdivision to read:
"(3a) "Provisional provider" means an employee who has started the preservice criminal records check process to be hired and who is waiting for a determination letter from the Department. A provisional provider may be hired, begin orientation and training, and be counted in the staff to child ratio so long as the provisional provider is accompanied by a qualified child care provider when supervising any child and is clearly identifiable as a provisional provider by means of a lanyard, name tag, or clothing. An existing employee who is subject to a criminal records check every three years in accordance with this section shall be treated as a provisional provider during the pendency of the criminal record check process."
SECTION 16.(b) G.S. 110‑90.2 is amended by adding a new subsection to read:
"(h) The check of the State and National Repositories for the criminal history of a person required to be conducted by this section and directed to the State Bureau of Investigation shall be completed within 15 calendar days of the receipt of the request from the Department of Health and Human Services. The criminal history check of a person required to be conducted by the Department of Health and Human Services by this section shall be completed within 15 calendar days of the receipt of the application from the child care provider."
regulation of digital dispatching services
SECTION 17.(a) G.S. 160A‑194 reads as rewritten:
"§ 160A‑194. Regulating and licensing businesses, trades, etc.
(a) A city may by ordinance, subject to the general law of the State, regulate and license occupations, businesses, trades, professions, and forms of amusement or entertainment and prohibit those that may be inimical to the public health, welfare, safety, order, or convenience. In licensing trades, occupations, and professions, the city may, consistent with the general law of the State, require applicants for licenses to be examined and charge a reasonable fee therefor. Nothing in this section shall impair the city's power to levy privilege license taxes on occupations, businesses, trades, professions, and other activities pursuant to G.S. 160A‑211.
(b) Nothing in this section shall authorize a city to examine or license a person holding a license issued by an occupational licensing board of this State as to the profession or trade that he has been licensed to practice or pursue by the State.
(c) Nothing in this section shall authorize a city to regulate and license digital dispatching services for prearranged transportation services for hire."
SECTION 17.(c) G.S. 160A‑304 is amended by adding a new subsection to read:
"(c) Nothing in this Chapter authorizes a city to adopt an ordinance doing any of the following:
(1) Requiring licensing or regulation of digital dispatching services for prearranged transportation services for hire connected with vehicles operated for hire in the city if the business providing the digital dispatching services does not own or operate the vehicles for hire in the city.
(2) Setting a minimum rate or minimum increment of time used to calculate a rate for prearranged transportation services for hire.
(3) Requiring an operator to use a particular formula or method to calculate rates charged.
(4) Setting a minimum waiting period between requesting prearranged transportation services and the provision of those transportation services when the prearranged transportation services are digitally dispatched.
(5) Requiring a final destination to be set at the time of requesting prearranged transportation services through digital dispatching services.
(6) Requiring or prohibiting taxi franchises or taxi operators from contracting with a person in the business of digital dispatching services for prearranged transportation services for hire."
SECTION 17.(d) G.S. 153A‑134 reads as rewritten:
"§ 153A‑134. Regulating and licensing businesses, trades, etc.
(a) A county may by ordinance, subject to the general law of the State, regulate and license occupations, businesses, trades, professions, and forms of amusement or entertainment and prohibit those that may be inimical to the public health, welfare, safety, order, or convenience. In licensing trades, occupations, and professions, the county may, consistent with the general law of the State, require applicants for licenses to be examined and charge a reasonable fee therefor. This section does not authorize a county to examine or license a person holding a license issued by an occupational licensing board of this State as to the profession or trade that he has been licensed to practice or pursue by the State.
(b) This section does not impair the county's power to levy privilege license taxes on occupations, businesses, trades, professions, and other activities pursuant to G.S. 153A‑152.
(c) Nothing in this section shall authorize a county to regulate and license digital dispatching services for prearranged transportation services for hire."
WC INSURANCE CANCELLATION/ELECTRONIC COMMUNICATIONS
SECTION 18.(a) G.S. 58‑36‑105(b) reads as rewritten:
"(b) Any cancellation permitted by subsection (a)
of this section is not effective unless written notice of cancellation has been
given by registered or certified mail, return receipt requested, to the
insured not less than 15 days before the proposed effective date of
cancellation. The notice shall may be given by registered or
certified mail, return receipt requested, to the insured and any other person
designated in the policy to receive notice of cancellation at their addresses
shown in the policy or, if not indicated in the policy, at their last known
addresses. The notice shall state the precise reason for cancellation. Whenever
notice of intention to cancel is required to be given by registered or
certified mail, no cancellation by the insurer shall be effective unless and
until such method is employed and completed. Notice of cancellation,
termination, or nonrenewal may also be given by any method permitted for
service of process pursuant to Rule 4 of the North Carolina Rules of Civil
Procedure. Failure to send this notice, as provided in this section, to any
other person designated in the policy to receive notice of cancellation
invalidates the cancellation only as to that other person's interest."
SECTION 18.(b) Article 2 of Chapter 58 of the General Statutes is amended by adding a new section to read:
"§ 58‑2‑255. Electronic insurance communications and records.
(a) Definitions. – As used in this section:
(1) "Communications" means notices, offers, disclosures, documents, forms, information, and correspondence required or permitted to be provided to a party in writing under the insurance laws of this State or that are otherwise provided by an insurer, including, but not limited to, notices pertaining to the cancellation, termination, or nonrenewal of insurance.
(2) "Delivered by electronic means" includes any of the following:
a. Delivery to an electronic mail address or an electronic account at which a party has consented to receive electronic communications.
b. Displaying information, or a link to information, as an essential step to completing the transaction to which such information relates.
c. Providing notice to a party at the electronic mail address or an electronic account at which the party has consented to receive notice of the posting of a communication on an electronic network or site.
(3) "Insurer" has the same meaning as in G.S. 58‑1‑5(3).
(4) "Party" means a recipient of any communications defined in this section. "Party" includes an applicant, policyholder, insured, claimant, member, provider, or beneficiary.
(b) When any insurance law of this State, except for cancellation, termination, or nonrenewal of workers' compensation policies pursuant to G.S. 58‑36‑105(b), requires a communication to be provided to a party in writing, signed by a party, provided by means of a specific delivery method, or retained by an insurer, those requirements are satisfied if the insurer complies with Article 40 of Chapter 66 of the General Statutes.
(c) Verification of communications delivered by electronic means shall constitute proof of mailing in civil and administrative proceedings and under the insurance laws of this State.
(d) Nothing in this section affects requirements related to the content or timing of any communication required under the insurance laws of this State.
(e) A recording of an oral communication between an insurer and a party that is reliably stored and reproduced by an insurer shall constitute an electronic communication or record. When a communication is required under the insurance laws of this State to be provided in writing, the communication provided in accordance with this subsection shall satisfy the requirement that the communication be in writing. When a communication is required under the insurance laws of this State to be signed, a recorded oral communication in which a party agrees to the terms stated in the oral communication shall satisfy the requirement."
SECTION 18.(c) G.S. 97‑19 reads as rewritten:
"§ 97‑19. Liability of principal contractors; certificate that subcontractor has complied with law; right to recover compensation of those who would have been liable; order of liability.
Any principal contractor, intermediate contractor, or subcontractor
who shall sublet any contract for the performance of any work without requiring
obtaining from such subcontractor or obtaining from the Industrial
Commission a certificate, issued by a workers' compensation insurance carrier,
or a certificate of compliance issued by the Department of Insurance to a self‑insured
subcontractor, stating that such subcontractor has complied with G.S. 97‑93
hereof,for a specified term, shall be liable, irrespective of
whether such subcontractor has regularly in service fewer than three employees
in the same business within this State, to the same extent as such
subcontractor would be if he were subject to the provisions of this Article for
the payment of compensation and other benefits under this Article on account of
the injury or death of any employee of such subcontractor due to an accident
arising out of and in the course of the performance of the work covered by such
subcontract. If the principal contractor, intermediate contractor or
subcontractor shall obtain such certificate at the any time of
before subletting such contract to the subcontractor, he
shall not thereafter be held liable to any employee of such subcontractor for
compensation or other benefits under this Article.Article and within
the term specified by the certificate.
Notwithstanding the provisions of this section, any principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of work shall not be held liable to any employee of such subcontractor if either (i) the subcontractor has a workers' compensation insurance policy in compliance with G.S. 97‑93 in effect on the date of injury regardless of whether the principal contractor, intermediate contractor, or subcontractor failed to timely obtain a certificate from the subcontractor; or (ii) the policy expired or was cancelled prior to the date of injury provided the principal contractor, intermediate contractor, or subcontractor obtained a certificate at any time before subletting such contract to the subcontractor and was unaware of the expiration or cancellation.
Any principal contractor, intermediate contractor, or subcontractor paying compensation or other benefits under this Article, under the foregoing provisions of this section, may recover the amount so paid from any person, persons, or corporation who independently of such provision, would have been liable for the payment thereof.
Every claim filed with the Industrial Commission under this section shall be instituted against all parties liable for payment, and said Commission, in its award, shall fix the order in which said parties shall be exhausted, beginning with the immediate employer.
The principal or owner may insure any or all of his contractors and their employees in a blanket policy, and when so insured such contractor's employees will be entitled to compensation benefits regardless of whether the relationship of employer and employee exists between the principal and the contractor."
SECTION 18.(d) This section is effective when it becomes law and applies to insurance policies and certificates of insurance in effect on or after that date.
VETERANS PREFERENCE FOR PRIVATE EMPLOYERS
SECTION 19. Article 3 of Chapter 95 of the General Statutes is amended by adding a new section to read:
"§ 95‑28.4. Veterans preference.
A private, nonpublic employer in the State may provide a preference to a veteran for employment. Spouses of honorably discharged veterans who have a service‑connected permanent and total disability also may be preferred for employment. Granting of this preference is not a violation of any State or local equal employment opportunity law."
AGRICULTURAL RIGHT TO WORK
SECTION 20. G.S. 95‑79 reads as rewritten:
"§ 95‑79. Certain agreements declared illegal.
(a) Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against the public policy and an illegal combination or conspiracy in restraint of trade or commerce in the State of North Carolina.
(b) Any provision that directly or indirectly conditions the purchase of agricultural products or the terms of an agreement for the purchase of agricultural products upon an agricultural producer's status as a union or nonunion employer or entry into or refusal to enter into an agreement with a labor union or labor organization is invalid and unenforceable as against public policy in restraint of trade or commerce in the State of North Carolina. For purposes of this subsection, the term "agricultural producer" means any producer engaged in any service or activity included within the provisions of Section 3(f) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 203, or Section 3121(g) of the Internal Revenue Code of 1986, 26 U.S.C. § 3121."
CLARIFY AGRICULTURAL ZONING
SECTION 22.(a) G.S. 153A‑340(b) reads as rewritten:
"§ 153A‑340. Grant of power.
…
(b) (1) These regulations may affect property used for bona fide farm purposes only as provided in subdivision (3) of this subsection. This subsection does not limit regulation under this Part with respect to the use of farm property for nonfarm purposes.
(2) Except as provided in G.S. 106‑743.4 for
farms that are subject to a conservation agreement under G.S. 106‑743.2,
bona fide farm purposes include the production and activities relating or
incidental to the production of crops, grains, fruits, vegetables,
ornamental and flowering plants, dairy, livestock, poultry, and all other forms
of agriculture agriculture, as defined in G.S. 106‑581.1.
For purposes of this subdivision, "when performed on the farm" in G.S. 106‑581.1(6)
shall include the farm within the jurisdiction of the county and any other farm
owned or leased to or from others by the bona fide farm operator, no matter
where located. For purposes of this subdivision, the production of a
nonfarm product that the Department of Agriculture and Consumer Services
recognizes as a "Goodness Grows in North Carolina" product that is
produced on a farm subject to a conservation agreement under G.S. 106‑743.2
is a bona fide farm purpose. For purposes of determining whether a property is
being used for bona fide farm purposes, any of the following shall constitute
sufficient evidence that the property is being used for bona fide farm
purposes:
a. A farm sales tax exemption certificate issued by the Department of Revenue.
b. A copy of the property tax listing showing that the property is eligible for participation in the present use value program pursuant to G.S. 105‑277.3.
c. A copy of the farm owner's or operator's Schedule F from the owner's or operator's most recent federal income tax return.
d. A forest management plan.
e. A Farm Identification Number issued by the United States Department of Agriculture Farm Service Agency.
(3) The definitions set out in G.S. 106‑802 apply to this subdivision. A county may adopt zoning regulations governing swine farms served by animal waste management systems having a design capacity of 600,000 pounds steady state live weight (SSLW) or greater provided that the zoning regulations may not have the effect of excluding swine farms served by an animal waste management system having a design capacity of 600,000 pounds SSLW or greater from the entire zoning jurisdiction."
SECTION 22.(b) G.S. 106‑581.1 reads as rewritten:
"§ 106‑581.1. Agriculture defined.
For purposes of this Article, the terms "agriculture", "agricultural", and "farming" refer to all of the following:
(1) The cultivation of soil for production and harvesting of crops, including but not limited to fruits, vegetables, sod, flowers and ornamental plants.
(2) The planting and production of trees and timber.
(3) Dairying and the raising, management, care, and training of livestock, including horses, bees, poultry, and other animals for individual and public use, consumption, and marketing.
(4) Aquaculture as defined in G.S. 106‑758.
(5) The operation, management, conservation, improvement, and maintenance of a farm and the structures and buildings on the farm, including building and structure repair, replacement, expansion, and construction incident to the farming operation.
(6) When performed on the farm, "agriculture", "agricultural", and "farming" also include the marketing and selling of agricultural products, agritourism, the storage and use of materials for agricultural purposes, packing, treating, processing, sorting, storage, and other activities performed to add value to crops, livestock, and agricultural items produced on the farm, and similar activities incident to the operation of a farm.
(7) A public or private grain warehouse or warehouse operation where grain is held 10 days or longer and includes, but is not limited to, all buildings, elevators, equipment, and warehouses consisting of one or more warehouse sections and considered a single delivery point with the capability to receive, load out, weigh, dry, and store grain."
W/C/TAXI DRIVER/INDEPENDENT cONTRACTOR
SECTION 23.(a) Article 1 of Chapter 97 of the General Statutes is amended by adding a new section to read:
"§ 97‑5.1. Presumption that taxicab drivers are independent contractors.
(a) It shall be a rebuttable presumption under this Chapter that any person who operates, and who has an ownership or leasehold interest in, a passenger motor vehicle that is operated as a taxicab is an independent contractor for the purposes of this Chapter and not an employee as defined in G.S. 97‑2. The presumption is not rebutted solely (i) because the operator is required to comply with rules and regulations imposed on taxicabs by the local governmental unit that licenses companies, taxicabs, or operators or (ii) because a taxicab accepts a trip request to be at a specific place at a specific time, but the presumption may be rebutted by application of the common law test for determining employment status.(b) The following definitions apply in this section:
(1) Lease. – A contract under which the lessor provides a vehicle to a lessee for consideration.
(2) Leasehold. – Includes, but is not limited to, a lease for a shift or a longer period.
(3) Passenger motor vehicle that is operated as a taxicab. – Any vehicle that:
a. Has a passenger seating capacity that does not exceed seven persons and
b. Is transporting persons, property, or both on a route that begins or ends in this State and either:
1. Carries passengers for hire when the destination and route traveled may be controlled by a passenger and the fare is calculated on the basis of any combination of an initial fee, distance traveled, or waiting time; or
2. Is in use under a contract between the operator and a third party to provide specific service to transport designated passengers or to provide errand services to locations selected by the third party."
SECTION 23.(b) This section is effective when it becomes law and applies to causes of action arising on or after that date.
PART IV. ENVIRONMENTAL and public health regulations
SCRAP TIRE DISPOSAL
SECTION 25. G.S. 130A‑309.57 reads as rewritten:
"§ 130A‑309.57. Scrap tire disposal program.
(a) The owner or operator of any scrap tire collection site shall, within six months after October 1, 1989, provide the Department with information concerning the site's location, size, and the approximate number of scrap tires that are accumulated at the site and shall initiate steps to comply with subsection (b) of this section.
(b) On or after July 1, 1990:
(1) A person may not maintain a scrap tire collection site or a scrap tire disposal site unless the site is permitted.
(2) It is unlawful for any person to dispose of scrap tires in the State unless the scrap tires are disposed of at a scrap tire collection site or at a tire disposal site, or disposed of for processing at a scrap tire processing facility.
(c) The Commission shall adopt rules to carry out the provisions of this section. Such rules shall:
(1) Provide for the administration of scrap tire collector and collection center permits and scrap tire disposal site permits, which may not exceed two hundred fifty dollars ($250.00) annually.
(2) Set standards for scrap tire processing facilities and associated scrap tire sites, scrap tire collection centers, and scrap tire collectors.
(3) Authorize the final disposal of scrap tires at a permitted solid waste disposal facility provided the tires have been cut into sufficiently small parts to assure their proper disposal.
(4) Provide that permitted scrap tire
collectors may not contract with a scrap tire processing facility unless the
processing facility documents that it has access to a facility permitted to
receive scrap tires.
(d) A permit is not required for:
(1) A tire retreading business where fewer than 1,000 scrap tires are kept on the business premises;
(2) A business that, in the ordinary course of business, removes tires from motor vehicles if fewer than 1,000 of these tires are kept on the business premises; or
(3) A retail tire‑selling business which is serving as a scrap tire collection center if fewer than 1,000 scrap tires are kept on the business premises.
(e) The Department shall encourage the voluntary establishment of scrap tire collection centers at retail tire‑selling businesses, scrap tire processing facilities, and solid waste disposal facilities, to be open to the public for the deposit of used and scrap tires. The Department may establish an incentives program for individuals to encourage them to return their used or scrap tires to a scrap tire collection center.
(f) Permitted scrap tire collectors may not contract with a scrap tire processing facility unless the processing facility documents that it has access to a facility permitted to receive the scrap tires."
CARBON MONOXIDE DETECTORS
SECTION 26.(a) G.S. 143‑138 reads as rewritten:
"§ 143‑138. North Carolina State Building Code.
…
(b2) The Code Code (i) may contain
provisions requiring the installation of either battery‑operated or
electrical carbon monoxide detectors in every dwelling unit having a fossil‑fuel
burning heater, appliance, or fireplace, and in any dwelling unit having an
attached garage.garage and (ii) shall contain provisions requiring the
installation of electrical carbon monoxide detectors at a lodging
establishment. Violations of this subsection and rules adopted pursuant to this
subsection shall be punishable in accordance with subsection (h) of this
section and G.S. 143‑139. In particular, the rules shall provide:
(1) For dwelling units, carbon Carbon
monoxide detectors shall be those listed by a nationally recognized testing
laboratory that is OSHA‑approved to test and certify to American National
Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or
ANSI/UL2075 and shall be installed in accordance with either the standard of
the National Fire Protection Association or the minimum protection designated
in the manufacturer's instructions, which the property owner shall retain or
provide as proof of compliance. A carbon monoxide detector may be combined with
smoke detectors if the combined detector does both of the following: (i)
complies with ANSI/UL2034 or ANSI/UL2075 for carbon monoxide alarms and
ANSI/UL217 for smoke detectors; and (ii) emits an alarm in a manner that
clearly differentiates between detecting the presence of carbon monoxide and
the presence of smoke.
(2) For lodging establishments, carbon monoxide detectors shall be installed in every enclosed space having a fossil fuel burning heater, appliance, or fireplace and in any enclosed space, including a sleeping room, that shares a common wall, floor, or ceiling with an enclosed space having a fossil fuel burning heater, appliance, or fireplace. Carbon monoxide detectors shall be (i) listed by a nationally recognized testing laboratory that is OSHA‑approved to test and certify to American National Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or ANSI/UL2075, (ii) installed in accordance with either the standard of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the lodging establishment shall retain or provide as proof of compliance, (iii) receive primary power from the building's wiring, where such wiring is served from a commercial source, and (iv) receive power from a battery when primary power is interrupted. A carbon monoxide detector may be combined with smoke detectors if the combined detector complies with the requirements of this subdivision for carbon monoxide alarms and ANSI/UL217 for smoke detectors. For purposes of this subsection, "lodging establishment" means any hotel, motel, tourist home, or other establishment permitted under authority of G.S. 130A‑248 to provide lodging accommodations for pay to the public.
…."
SECTION 26.(b) G.S. 130A‑248 reads as rewritten:
"§ 130A‑248. Regulation of food and lodging establishments.
…
(b) No establishment shall commence or continue
operation without a permit or transitional permit issued by the Department. The
permit or transitional permit shall be issued to the owner or operator of the
establishment and shall not be transferable. If the establishment is leased,
the permit or transitional permit shall be issued to the lessee and shall not
be transferable. If the location of an establishment changes, a new permit
shall be obtained for the establishment. A permit shall be issued only when the
establishment satisfies all of the requirements of the rules.rules
and the requirements of subsection (g) of this section. The Commission
shall adopt rules establishing the requirements that must be met before a
transitional permit may be issued, and the period for which a transitional
permit may be issued. The Department may also impose conditions on the issuance
of a permit or transitional permit in accordance with rules adopted by the
Commission. A permit or transitional permit shall be immediately revoked in
accordance with G.S. 130A‑23(d) for failure of the establishment to
maintain a minimum grade of C. A permit or transitional permit may otherwise be
suspended or revoked in accordance with G.S. 130A‑23.
…
(g) All hotels, motels, tourist homes, and other establishments that provide lodging for pay shall have carbon monoxide detectors installed in every enclosed space having a fossil fuel burning heater, appliance, or fireplace and in any enclosed space, including a sleeping room, that shares a common wall, floor, or ceiling with an enclosed space having a fossil fuel burning heater, appliance, or fireplace. Carbon monoxide detectors shall be (i) listed by a nationally recognized testing laboratory that is OSHA‑approved to test and certify to American National Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or ANSI/UL2075, (ii) installed in accordance with either the standard of the National Fire Protection Association or the minimum protection designated in the manufacturer's instructions, which the establishment shall retain or provide as proof of compliance, (iii) receive primary power from the building's wiring, where such wiring is served from a commercial source, and (iv) receive power from a battery when primary power is interrupted. A carbon monoxide detector may be combined with smoke detectors if the combined detector complies with the requirements of this subdivision for carbon monoxide alarms and ANSI/UL217 for smoke detectors."
SECTION 26.(c) Section 26.(b) of this act becomes effective October 1, 2013.
LAGOON CLOSURE RULE
SECTION 27.(a) The definitions set out in G.S. 143‑212, 15A NCAC 02T .0103 (Definitions) and 15A NCAC 02T .1302 (Definitions) apply to this section.
SECTION 27.(b) 15A NCAC 02T .1306 (Closure Requirements). – Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 27(d) of this act, the Commission and the Department shall implement 15A NCAC 02T .1306 (Closure Requirements) as provided in Section 27(c) of this act.
SECTION 27.(c) Implementation. – Notwithstanding 15A NCAC 02T .1306 (Closure Requirements), any containment basin, such as a lagoon or a waste storage structure, permitted at a cattle facility under the Section 1300 Rules, shall continue to be subject to the conditions and requirements of the facility's permit until that permit is rescinded by the Division. Upon request of the permittee, the permit may be rescinded by the Division prior to closure of the containment basin if the average size of the confined cattle herd at the cattle facility, calculated on an annual basis during the three years prior to the request for rescission, is less than one hundred confined cattle. Upon permit rescission, all of the following requirements shall apply:
(1) The cattle facility shall be subject to the requirements of 15A NCAC 02T .1303 (Permitting By Regulation) and 15A NCAC 02T .0113 (Permitting By Regulation) until the containment area is closed in accordance with standards adopted by the NRCS.
(2) The farm owner shall maintain records of land application and weekly records of containment basin waste levels on forms provided by or approved by the Division.
(3) Closure shall include prenotification to the Division and, within 15 days of completion of closure, submittal of a closure form supplied by the Division or closure forms approved by the Division that provide the same information required by the forms supplied by the Division.
The Division shall have the authority to deny a request for permit rescission based on the factors set out in subsection (e) of 15A NCAC 02T .0113 (Permitting By Regulation).
SECTION 27.(d) Additional Rule‑Making Authority. – The Commission shall adopt a rule to amend 15A NCAC 02T .1306 (Closure Requirements) consistent with Section 27(c) of this act. Notwithstanding G.S. 150B‑19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 27(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B‑21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B‑21.3(b2).
SECTION 27.(e) Sunset. – Section 27(c) of this act expires on the date that rules adopted pursuant to Section 27(d) of this act become effective.
SECTION 28.(a) 15A NCAC 02T .1302 (Definitions). – Until the effective date of the revised permanent rule that the Environmental Management Commission is required to adopt pursuant to Section 28(c) of this act, the Commission and the Department of Environment and Natural Resources shall implement 15A NCAC 02T .1302 (Definitions) as provided in Section 28(b) of this act.
SECTION 28.(b) Implementation. – Notwithstanding 15A NCAC 02T .1302 (Definitions), "new animal waste management system" means animal waste management systems which are constructed and operated at a site where no feedlot existed previously, where a system serving a feedlot has been abandoned or unused for a period of four years or more and is then put back into service, or where a permit for a system has been rescinded, and is then reissued when the permittee confines animals in excess of the thresholds established in G.S. 143‑215.10B.
SECTION 28.(c) Additional Rule‑Making Authority. – The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02T .1302 (Definitions) consistent with Section 28(b) of this act. Notwithstanding G.S. 150B‑19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 28(b) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B‑21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B‑21.3(b2).
SECTION 28.(d) Sunset. – Section 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective.
RECLAIMED WATER IRRIGATION SETBACK RULE
SECTION 29.(a) The definitions set out in G.S. 143‑212 and 15A NCAC 02U .0103 (Definitions) apply to this section.
SECTION 29.(b) 15A NCAC 02U .0701 (Setbacks). – Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 29(d) of this act, the Commission and the Department shall implement 15A NCAC 02U .0701 (Setbacks) as provided in Section 29(c) of this act.
SECTION 29.(c) Implementation. – Notwithstanding 15A NCAC 02U .0701 (Setbacks), the rule shall be implemented as provided in this section.
(1) Setbacks in subsection (c) of the rule for surface waters not classified as SA shall not apply provided that the reclaimed water to be utilized contains no more than 10 mg/l of Total Nitrogen and no more than 2 mg/l of Total Phosphorus. The elimination of setbacks to surface waters does not exempt any discharge of reclaimed water to waters of the State from meeting permit requirements established in 15A NCAC 02U .0101 (Purpose).
(2) Notwithstanding subsections (a) and (b) of the rule, no setback shall be required between final reclaimed water effluent storage facilities and property lines provided that the proposed final effluent storage facility was constructed prior to June 18, 2011.
(3) Setbacks between reclaimed water storage ponds and property lines or wells under separate ownership may be waived by the adjoining property owner. A copy of the signed waiver shall be provided to the Department.
(4) Setbacks between reclaimed water storage ponds and wells under the same ownership as the reclaimed water storage pond may be waived by the property owner.
SECTION 29.(d) Additional Rule‑Making Authority. – The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02U .0701 (Setbacks) consistent with Section 29(c) of this act. Notwithstanding G.S. 150B‑19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 29(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B‑21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B‑21.3(b2).
SECTION 29.(e) Sunset. – Section 29(c) of this act expires on the date that rules adopted pursuant to Section 29(d) of this act become effective.
SMOKING BAN RULES
SECTION 30. No later than January 1, 2014, the Commission for Public Health shall amend and clarify its rules adopted pursuant to G.S. 130A‑497 for the implementation of the prohibition on smoking in restaurants and bars. The rules shall ensure the consistent interpretation and enforcement of Part 1C of Article 23 of Chapter 130A of the General Statutes and shall specifically clarify the definition of enclosed areas for purposes of implementation of the Part. Rules adopted pursuant to this section (i) shall be exempt from the requirements of G.S. 150B‑21.4, (ii) are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes, and (iii) shall become effective as provided in G.S. 150B‑21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B‑21.3(b2). No later than November 1, 2013, the Commission shall report to the Joint Legislative Oversight Committee on Health and Human Services on its progress in amending and clarifying the rules.
SECTION 31.(a) The Environmental Review Commission shall study the statutory models for establishing, operating, and financing certain organizations that provide water and sewer services in the State. The Commission shall specifically consider the statutory models for the following:
(1) Sanitary Districts (Part 2 of Article 2 of Chapter 130A of the General Statutes).
(2) Water and Sewer Authorities (Article 1 of Chapter 162A of the General Statutes).
(3) Metropolitan Water Districts (Article 4 of Chapter 162A of the General Statutes).
(4) Metropolitan Sewerage Districts (Article 5 of Chapter 162A of the General Statutes).
(5) County Water and Sewer Districts (Article 6 of Chapter 162A of the General Statutes).
(6) Any other similar organizations that provide water or sewer service in the State.
SECTION 31.(b) The Commission shall determine whether, how, and to what extent the number of statutory models should be reduced and consolidated. In making these determinations, the Commission shall consider and address any impacts such reduction and consolidation would have on the ongoing operations and financing of existing organizations for the provision of water and sewer services.
SECTION 31.(c) The Commission shall report its findings and recommendations, if any, to the 2014 Regular Session of the 2013 General Assembly upon its convening.
PART V. SEVERABILITY CLAUSE AND eFFECTIVE DATE
SECTION 32. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
SECTION 33. Except as otherwise provided, this act is effective when it becomes law.
