December 11, 1987
Subject:
Administrative Procedure Act; N.C.G.S. Chapter 150B; Occupational Licensing Agencies
Requested By:
Phillip T. Fisher Executive Director North Carolina Real Estate Commission
Questions:
- (1)
- Is N.C.G.S. 150B-23(a), as amended by Chapter 878 of the 1987 Session Laws of the North Carolina General Assembly, applicable to agencies governed by Article 3A of N.C.G.S. Chapter 150B?
- (2)
- If a contested case hearing is conducted by an agency governed by Article 3A of N.C.G.S. Chapter 150B, must a petition or other notice be filed with the Office of Administrative Hearings?
Conclusions:
- (1)
- No.
- (2)
- No.
The first sentence of G.S. 150B-23(a) as amended by the 1987 Session Laws provides as follows:
"A contested case shall be commenced by filing a petition with the Office of Administrative Hearings and, except as provided in Article 3A of this Chapter, shall be conducted by that Office."
Under the Administrative Procedure Act (N.C.G.S. Chapter 150B), contested cases before certain state agencies are governed by Article 3 of Chapter 150B and contested cases before other state agencies are governed by Article 3A of Chapter 150B. N.C.G.S. 150B-38(a) establishes the agencies that are governed by Article 3A. N.C.G.S. 150B-1(d) unequivocally states: "Article 3 of this Chapter shall not apply to agencies governed by the provisions of Article 3A of this Chapter, as set out in G.S. 150B-38(a)." N.C.G.S. 150B-23(a) is contained in Article 3. Therefore, we are clearly compelled to conclude that N.C.G.S. 150B-23(a) has no applicability to agencies governed by Article 3A.
N.C.G.S. 150B-23(a) requires that a petition be filed with the Office of Administrative Hearings to commence a contested case under Article 3. However, there is no comparable provision in Article 3A. Therefore, when contested case hearings are conducted by agencies governed by Article 3A, there is no requirement that a petition or other notice be filed with the Office of Administrative Hearings. This is true for contested cases commenced by the agency as well as contested cases commenced by an aggrieved party.
However, when a majority of an agency governed by Article 3A is unable or elects not to hear a contested case, the agency shall apply to the Director of the Office of Administrative Hearings for the designation of an administrative law judge to preside at the hearing of the contested case, as provided for in N.C.G.S. 150B-40(e). This statute specifically provides that the provisions of Article 3A, rather than the provisions of Article 3, shall govern a contested case in which the Article 3A agency requests an administrative law judge assigned by the Office of Administrative Hearings.
LACY H. THORNBURG Attorney General
William W. Melvin Senior Deputy Attorney General