CHAPTER 130A.
Public Health.
ARTICLE 1.
Definitions, General Provisions and Remedies.
PART 1. General Provisions.
§130A-1. Title.
This Chapter shall be known as the Public Health Law of
North Carolina. (1983, c. 891, s. 2.)
§ 130A-1.1. Mission and essential services.
(a) The General Assembly recognizes that unified purpose
and direction of the public health system is necessary to ensure
that all citizens in the State have equal access to essential
public health services. The General Assembly declares that the
mission of the public health system is to promote and contribute
to the highest level of health possible for the people of North
Carolina by:
(1) Preventing health risks and disease;
(2) Identifying and reducing health risks in the
community;
(3) Detecting, investigating, and preventing the
spread of disease;
(4) Promoting healthy lifestyles;
(5) Promoting a safe and healthful environment;
(6) Promoting the availability and accessibility of
quality health care services through the private sector; and
(7) Providing quality health care services when not
otherwise available.
(b) As used in this section, the term "essential public
health services" means those services that the State shall ensure
because they are essential to promoting and contributing to the
highest level of health possible for the citizens of North
Carolina. The Departments of Environment and Natural Resources
and Health and Human Services shall attempt to ensure within the
resources available to them that the following essential public
health services are available and accessible to all citizens of
the State, and shall account for the financing of these services:
(1) Health Support:
a. Assessment of health status, health needs,
and environmental risks to health;
b. Patient and community education;
c. Public health laboratory;
d. Registration of vital events;
(2) Environmental Health:
a. Lodging and institutional sanitation;
b. On-site domestic sewage disposal;
c. Water and food safety and sanitation; and
(3) Personal Health:
a. Child health;
b. Chronic disease control;
c. Communicable disease control;
d. Dental public health;
e. Family planning;
f. Health promotion and risk reduction;
g. Maternal health.
The Commission for Health Services shall determine specific
services to be provided under each of the essential public health
services categories listed above.
(c) The General Assembly recognizes that there are health-
related services currently provided by State and local government
and the private sector that are important to maintaining a
healthy social and ecological environment but that are not
included on the list of essential public health services required
under this section. Omission of these services from the list of
essential public health services shall not be construed as an
intent to prohibit or decrease their availability. Rather, such
omission means only that the omitted services may be more
appropriately assured by government agencies or private entities
other than the public health system.
(d) The list of essential public health services required
by this section shall not be construed to limit or restrict the
powers and duties of the Commission for Health Services or the
Departments of Environment and Natural Resources and Health and
Human Services as otherwise conferred by State law. (1991, c.
299, s. 1; 1997-443, s. 11A.54.)
§ 130A-2. Definitions.
The following definitions shall apply throughout this
Chapter unless otherwise specified:
(1) "Commission" means the Commission for Health
Services.
(2) "Department" means the Department of Health and
Human Services.
(3) "Imminent hazard" means a situation which is
likely to cause an immediate threat to human life, an immediate
threat of serious physical injury, an immediate threat of serious
adverse health effects, or a serious risk of irreparable damage
to the environment if no immediate action is taken.
(4) "Local board of health" means a district board
of health or a public health authority board or a county board of
health.
(5) "Local health department" means a district
health department or a public health authority or a county health
department.
(6) "Local health director" means the
administrative head of a local health department appointed
pursuant to this Chapter.
(7) "Person" means an individual, corporation,
company, association, partnership, unit of local government or
other legal entity.
(8) "Secretary" means the Secretary of Health and
Human Services.
(9) "Unit of local government" means a county,
city, consolidated city-county, sanitary district or other local
political subdivision, authority or agency of local government.
(10) "Vital records" means birth, death, fetal
death, marriage, annulment and divorce records registered under
the provisions of Article 4 of this Chapter. (1957, c. 1357, s.
1; 1963, c. 492, ss. 5, 6; 1967, c. 343, s. 2; c. 1257, s. 1;
1973, c. 476, s. 128; 1975, c. 751, s. 1; 1981, c. 130, s. 1; c.
340, ss. 1-4; 1983, c. 891, s. 2; 1989, c. 727, s. 141; 1989
(Reg. Sess., 1990), c. 1004, s. 19(b); 1991, c. 631, s. 1; 1997-
443, s. 11A.55; 1997-502, s. 2(a), (b).)
§130A-3. Appointment of the State Health Director.
The Secretary shall appoint the State Health Director. The
State Health Director shall be a physician licensed to practice
medicine in this State. The State Health Director shall perform
duties and exercise authority assigned by the Secretary. (1983,
c. 891, s. 2.)
§ 130A-4. Administration.
(a) Except as provided in subsection (c) of this section,
the Secretary shall administer and enforce the provisions of this
Chapter and the rules of the Commission. A local health director
shall administer the programs of the local health department and
enforce the rules of the local board of health.
(b) When requested by the Secretary, a local health
department shall enforce the rules of the Commission under the
supervision of the Department. The local health department shall
utilize local staff authorized by the Department to enforce the
specific rules.
(c) The Secretary of Environment and Natural Resources
shall administer and enforce the provisions of Articles 8, 9, 10,
11, and 12 of this Chapter and the rules of the Commission.
(d) When requested by the Secretary of the Department of
Environment and Natural Resources, a local health department
shall enforce the rules of the Commission under the supervision
of the Department of Environment and Natural Resources. The local
health department shall utilize local staff authorized by the
Department of Environment and Natural Resources to enforce the
specific rules. (1983, c. 891, s. 2; 1995, c. 123, s. 2; 1997-
443, s. 11A.56.)
§ 130A-4.1. State funds for maternal and child
health care/nonsupplanting.
(a) The Department shall ensure that local health
departments do not reduce county appropriations for maternal and
child health services provided by the local health departments
because they have received State appropriations for this purpose.
(b) All income earned by local health departments for
maternal and child health programs supported in whole or in part
from State or federal funds, received from the Department, shall
be budgeted and expended by local health departments to further
the objectives of the program that generated the income. (1991,
c. 689, s. 170; 1997-443, s. 11A.57.)
§ 130A-4.2. State funds for health
promotion/nonsupplanting.
The Department shall ensure that local health departments do
not reduce county appropriations for health promotion services
provided by the local health departments because they have
received State appropriations for this purpose. (1991, c. 689, s.
171; 1997-443, s. 11A.58.)
§ 130A-5. Duties of the Secretary.
The Secretary shall have the authority:
(1) To enforce the State health laws and the rules
of the Commission;
(2) To investigate the causes of epidemics and of
infectious, communicable and other diseases affecting the public
health in order to control and prevent these diseases; to
provide, under the rules of the Commission, for the prevention,
detection, reporting and control of communicable, infectious or
any other diseases or health hazards considered harmful to the
public health; to obtain, notwithstanding the provisions of G.S.
8-53, a copy or a summary of pertinent portions of privileged
patient medical records deemed necessary for investigating a
disease or health hazard that may present a clear danger to the
public health. Records shall be identified as necessary by joint
agreement of a Department physician and the patient's attending
physician. However, if the Department is unable to contact the
attending physician after reasonable attempts to do so, or if the
Department determines that contacting all attending physicians of
patients involved in an investigation would be impractical or
would unreasonably delay the inquiry and thereby endanger the
public health, the records shall be identified as necessary by
joint agreement of a Department physician and the health care
facility's chief of staff. For a facility with no chief of staff,
the facility's chief administrator may consent to the
Department's review of the records. Any person, authorized to
have or handle such records, providing copies or summaries of
privileged patient medical records pursuant to this subdivision
shall be immune from civil or criminal liability that might
otherwise be incurred or imposed based upon invasion of privacy
or breach of physician-patient confidentiality arising out of the
furnishing of or agreement to furnish such records;
(3) To develop and carry out reasonable health
programs that may be necessary for the protection and promotion
of the public health and the control of diseases. The Commission
is authorized to adopt rules to carry out these programs;
(4) To make sanitary and health investigations and
inspections;
(5) To investigate occupational health hazards and
occupational diseases and to make recommendations for the
elimination of the hazards and diseases. The Secretary shall work
with the Industrial Commission and shall file sufficient reports
with the Industrial Commission to enable it to carry out all of
the provisions of the Workers' Compensation Act with respect to
occupational disease.
(6) To receive donations of money, securities,
equipment, supplies, realty or any other property of any kind or
description which shall be used by the Department for the purpose
of carrying out its public health programs;
(7) To acquire by purchase, devise or otherwise in
the name of the Department equipment, supplies and other
property, real or personal, necessary to carry out the public
health programs;
(8) To use the official seal of the Department.
Copies of documents in the possession of the Department may be
authenticated with the seal of the Department, attested by the
signature or a facsimile of the signature of the Secretary, and
when authenticated shall have the same evidentiary value as the
originals;
(9) To disseminate information to the general
public on all matters pertaining to public health; to purchase,
print, publish, and distribute free, or at cost, documents,
reports, bulletins and health informational materials. Money
collected from the distribution of these materials shall remain
in the Department to be used to replace the materials;
(10) To be the health advisor of the State and to
advise State officials in regard to the location, sanitary
construction and health management of all State institutions; to
direct the attention of the State to health matters which affect
the industries, property, health and lives of the people of the
State; to inspect at least annually State institutions and
facilities; to make a report as to the health conditions of these
institutions or facilities with suggestions and recommendations
to the appropriate State agencies. It shall be the duty of the
persons in immediate charge of these institutions or facilities
to furnish all assistance necessary for a thorough inspection;
(11) To establish a schedule of fees based on
income to be paid by a recipient for services provided by Migrant
Health Clinics and Development Evaluation Centers;
(12) To establish fees for the sale of specimen
containers, vaccines and other biologicals. The fees shall not
exceed the actual cost of such items, plus transportation costs;
(13) To establish a fee to cover costs of
responding to requests by employers for industrial hygiene
consultation services and occupational consultation services. The
fee shall not exceed two hundred dollars ($200.00) per on site
inspection; and
(14) To establish a fee for companion animal
certificate of examination forms to be distributed, upon request,
by the Department to licensed veterinarians. The fee shall not
exceed the cost of the form and shipping costs. (1957, c. 1357,
s. 1; 1961, c. 51, s. 4; c. 833, s. 14; 1969, c. 982; 1973, c.
476, ss. 128, 138; 1979, c. 714, s. 2; 1981, c. 562, s. 4; 1983,
c. 891, s. 2; 1985, c. 470, s. 1; 1991, c. 227, s. 1; 1993 (Reg.
Sess., 1994), c. 715, s. 1.)
§130A-6. Delegation of authority.
Whenever authority is granted by this Chapter upon a public
official, the authority may be delegated to another person
authorized by the public official. (1983, c. 891, s. 2.)
§130A-7. Grants-in-aid.
The State is authorized to accept, allocate and expend any
grants-in-aid for public health purposes which may be made
available to the State by the federal government. This Chapter is
to be liberally construed in order that the State and its
citizens may benefit fully from these grants-in-aid. The
Commission is authorized to adopt rules, not inconsistent with
the laws of this State, as required by the federal government for
receipt of federal funds. Any federal funds received are to be
deposited with the State Treasurer and are to be appropriated by
the General Assembly for the public health purposes specified.
(1957, c. 1357, s. 1; 1983, c. 891, s. 2.)
§130A-8. Counties to recover indirect costs on certain federal
public health or mental health grants.
(a) The Department shall include in its request for federal
funds applicable to public health or mental health grants from
the federal government to the State or any of its agencies,
indirect costs incurred by counties acting as subgrantees under
the grants or otherwise providing services to the Department with
regard to the grants to the full extent permitted by OMB Circular
A-87 or its successor. The Department shall allow counties to
claim and recover their indirect costs on these grants to the
full extent permitted by the Circular.
(b) This section shall not apply to those federal public
health or mental health grants which are formula grants to the
State or which are otherwise limited as to the maximum amounts
receivable on a statewide basis. (1977, c. 876, ss. 1, 2; 1983,
c. 891, s. 2.)
§130A-9. Standards.
The Commission is authorized to establish reasonable
standards governing the nature and scope of public health
services rendered by local health departments. (1957, c. 1357, s.
1; 1973, c. 110; 1975, c. 83; 1979, c. 504, s. 15; 1983, c. 891,
s. 2.)
§130A-10. Advisory Committees.
The Secretary is authorized to establish and appoint as many
special advisory committees as may be necessary to advise and
confer with the Department concerning the public health. Members
of any special advisory committee shall serve without
compensation but may be allowed travel and subsistence expenses
in accordance with G.S. 138-6. (1957, c. 1357, s. 1; 1975, c.
281; 1983, c. 891, s. 2.)
§ 130A-11. Residencies in public health.
The Department shall establish a residency program designed
to attract dentists into the field of public health and to train
them in the specialty of public health practice. The program
shall include practical experience in public health principles
and practices. (1975, c. 945, s. 1; 1983, c. 891, s. 2; 1991, c.
342, s. 6.)
§ 130A-12. Confidentiality of records.
All records containing privileged patient medical
information that are in the possession of the Department or local
health departments shall be confidential and shall not be public
records pursuant to G.S. 132-1. (1985, c. 470, s. 2; 1991 (Reg.
Sess., 1992), c. 890, s. 9; 1995, c. 428, s. 1.1.)
§ 130A-13. Application for eligibility for
Department medical payment program constitutes assignment to the
State of right to third party benefits.
(a) Notwithstanding any other provisions of law, by
applying for financial eligibility for any Department medical
payment program administered under this Chapter, the recipient
patient or responsible party for the recipient patient shall be
deemed to have made an assignment to the State of the right to
third party benefits, contractual or otherwise, to which he may
be entitled to the extent of the amount of the Department's
payment on behalf of the recipient patient. Any attorney retained
by the recipient patient shall be compensated for his services in
accordance with the following schedule and in the following order
of priority from any amount of such third party benefits obtained
on behalf of the recipient by settlement, with judgment against,
or otherwise from a third party:
(1) First to the payment of any court costs taxed
by the judgment;
(2) Second to the payment of the fee of the
attorney representing the beneficiary making the settlement or
obtaining the judgment, but this fee shall not exceed one-third
of the amount obtained or recovered to which the right of
subrogation applies;
(3) Third to the payment of the amount of
assistance received by the beneficiary as prorated with other
claims against the amount obtained or received from the third
party to which the right of subrogation applies, but the amount
shall not exceed one-third of the amount obtained or recovered to
which the right of subrogation applies; and
(4) Fourth to the payment of any amount remaining
to the beneficiary or his personal representative.
The United States and the State of North Carolina shall be
entitled to shares in each net recovery under this section. Their
shares shall be promptly paid under this section and their
proportionate parts of such sum shall be determined in accordance
with the matching formulas in use during the period for which
assistance was paid to the recipient.
(b) The Department shall establish a third party resources
collection unit that is adequate to ensure collection of third
party resources.
(c) The Commission may adopt rules necessary to implement
this section.
(d) Notwithstanding any other law to the contrary, in all
actions brought by the State pursuant to subsection (a) of this
section to obtain reimbursement for payments for medical
services, liability shall be determined on the basis of the same
laws and standards, including bases for liability and applicable
defenses, as would be applicable if the action were brought by
the individual on whose behalf the medical services were
rendered. (1989, c. 483, s. 1; 1995, c. 508, s. 1.)
§ 130A-14. Department may assist private nonprofit
foundations.
(a) The Secretary may allow employees of the Department to
assist any private nonprofit foundation that works directly with
services or programs of the Department and whose sole purpose is
to support the services and programs of the Department, and may
provide other appropriate services to any such foundation. No
employee of the Department may work with a foundation for more
than 20 hours in any one month. Chapter 150B of the General
Statutes does not apply to any assistance or services provided to
a private nonprofit foundation pursuant to this section.
(b) The board of directors of any private nonprofit
foundation that receives assistance or services pursuant to this
section shall secure and pay for the services of the Department
of State Auditor or shall employ a certified public accountant to
conduct an annual audit of the financial accounts of the
foundation. The board of directors of the foundation shall
transmit a copy of the annual financial audit report to the
Secretary. (1991, c. 761, s. 37.3; 1993, c. 553, s. 40.1)
Part 2. Remedies.
§ 130A-17. Right of entry.
(a) The Secretary and a local health director shall have
the right of entry upon the premises of any place where entry is
necessary to enforce the provisions of this Chapter or the rules
adopted by the Commission or a local board of health. If consent
for entry is not obtained, an administrative search and
inspection warrant shall be obtained pursuant to G.S. 15-27.2.
However, if an imminent hazard exists, no warrant is required for
entry upon the premises.
(b) The Secretary of the Department of Environment and
Natural Resources and a local health director shall have the same
rights enumerated in subsection (a) of this section to enforce
the provisions of Articles 8, 9, 10, 11, and 12 of this Chapter.
(1983, c. 891, s. 2; 1997-443, s. 11A.60.)
§ 130A-18. Injunction.
(a) If a person shall violate any provision of this Chapter
or the rules adopted by the Commission or rules adopted by a
local board of health, the Secretary or a local health director
may institute an action for injunctive relief, irrespective of
all other remedies at law, in the superior court of the county
where the violation occurred or where a defendant resides.
(b) The Secretary of the Department of Environment and
Natural Resources and a local health director shall have the same
rights enumerated in subsection (a) of this section to enforce
the provisions of Articles 8, 9, 10, 11, and 12 of this Chapter.
(1983, c. 891, s. 2; 1997-443, s. 11A.61.)
§ 130A-19. Abatement of public health
nuisance.
(a) If the Secretary or a local health director determines
that a public health nuisance exists, the Secretary or a local
health director may issue an order of abatement directing the
owner, lessee, operator or other person in control of the
property to take any action necessary to abate the public health
nuisance. If the person refuses to comply with the order, the
Secretary or the local health director may institute an action in
the superior court of the county where the public health nuisance
exists to enforce the order. The action shall be calendared for
trial within 60 days after service of the complaint upon the
defendant. The court may order the owner to abate the nuisance or
direct the Secretary or the local health director to abate the
nuisance. If the Secretary or the local health director is
ordered to abate the nuisance, the Department or the local health
department shall have a lien on the property for the costs of the
abatement of the nuisance in the nature of a mechanic's and
materialmen's lien as provided in Chapter 44A of the General
Statutes and the lien may be enforced as provided therein.
(b) The Secretary of Environment and Natural Resources and
a local health director shall have the same rights enumerated in
subsection (a) of this section to enforce the provisions of
Articles 8, 9, 10, 11, and 12 of this Chapter. (1893, c. 214, s.
22; Rev., ss. 3446, 4450; 1911, c. 62, ss. 12, 13; 1913, c. 181,
s. 3; C.S., ss. 7071, 7072; 1957, c. 1357, s. 1; 1983, c. 891, s.
2; 1997-443, s. 11A.62.)
§ 130A-20. Abatement of an imminent hazard.
(a) If the Secretary or a local health director determines
that an imminent hazard exists, the Secretary or a local health
director may, after notice to or reasonable attempt to notify the
owner, enter upon any property and take any action necessary to
abate the imminent hazard. The Department or the local health
department shall have a lien on the property for the cost of the
abatement of the imminent hazard in the nature of a mechanic's
and materialmen's lien as provided in Chapter 44A and the lien
may be enforced as provided therein. The lien may be defeated by
a showing that an imminent hazard did not exist at the time the
Secretary or the local health director took the action.
(b) The Secretary of Environment and Natural Resources and
a local health director shall have the same rights enumerated in
subsection (a) of this section to enforce the provisions of
Articles 8, 9, 10, 11, and 12 of this Chapter. (1893, c. 214, s.
22; Rev., ss. 3446, 4450; 1911, c. 62, ss. 12, 13; 1913, c. 181,
s. 3; C.S., ss. 7071, 7072; 1957, c. 1357, s. 1; 1983, c. 891, s.
2; 1997-443, s. 11A.63.)
§ 130A-21. Embargo.
(a) The Secretary of Environment and Natural Resources and
a local health director has authority to exercise embargo
authority concerning food or drink pursuant to G.S. 106-125(a),
(b) and (c) when delegated the authority by the Commissioner of
Agriculture.
(b) If the Secretary of Environment and Natural Resources
or a local health director has probable cause to believe that any
milk designated as Grade "A" milk is misbranded or does not
satisfy the milk sanitation rules adopted pursuant to G.S. 130A-
275, the Secretary of Environment and Natural Resources or a
local health director may detain or embargo the milk by affixing
a tag to it and warning all persons not to remove or dispose of
the milk until permission for removal or disposal is given by the
official by whom the milk was detained or embargoed or by the
court. It shall be unlawful for any person to remove or dispose
of the detained or embargoed milk without that permission.
The official by whom the milk was detained or embargoed
shall petition a judge of the district or superior court in whose
jurisdiction the milk is detained or embargoed for an order for
condemnation of the article. If the court finds that the milk is
misbranded or that it does not satisfy the milk sanitation rules
adopted pursuant to G.S. 130A-275, either the milk shall be
destroyed under the supervision of the petitioner or the
petitioner shall ensure that the milk will not be used for human
consumption as Grade "A" milk. All court costs and fees, storage,
expenses of carrying out the court's order and other expense
shall be taxed against the claimant of the milk. If, the milk, by
proper labelling or processing, can be properly branded and will
satisfy the milk sanitation rules adopted pursuant to G.S. 130A-
275, the court, after the payment of all costs, fees, and
expenses and after the claimant posts an adequate bond, may order
that the milk be delivered to the claimant for proper labelling
and processing under the supervision of the petitioner. The bond
shall be returned to the claimant after the petitioner represents
to the court either that the milk is no longer mislabelled or in
violation of the milk sanitation rules adopted pursuant to G.S.
130A-275, or that the milk will not be used for human
consumption, and that in either case the expenses of supervision
have been paid.
(c) If the Secretary of Environment and Natural Resources
or a local health director has probable cause to believe that any
scallops, shellfish or crustacea is adulterated or misbranded,
the Secretary of Environment and Natural Resources or a local
health director may detain or embargo the article by affixing a
tag to it and warning all persons not to remove or dispose of the
article until permission for removal or disposal is given by the
official by whom it was detained or embargoed or by the court. It
shall be unlawful for any person to remove or dispose of the
detained or embargoed article without that permission.
The official by whom the scallops, shellfish or crustacea
was detained or embargoed shall petition a judge of the district
or superior court in whose jurisdiction the article is detained
or embargoed for an order for condemnation of the article. If the
court finds that the article is adulterated or misbranded, that
article shall be destroyed under the supervision of the
petitioner. All court costs and fees, storage and other expense
shall be taxed against the claimant of the article. If, the
article, by proper labelling can be properly branded, the court,
after the payment of all costs, fees, expenses, and an adequate
bond, may order that the article be delivered to the claimant for
proper labelling under the supervision of the petitioner. The
bond shall be returned to the claimant after the petitioner
represents to the court that the article is no longer mislabelled
and that the expenses of supervision have been paid.
(d) Nothing in this section is intended to limit the
embargo authority of the Department of Agriculture and Consumer
Services. The Department of Environment and Natural Resources and
the Department of Agriculture and Consumer Services are
authorized to enter agreements respecting the duties and
responsibilities of each agency in the exercise of their embargo
authority.
(e) For the purpose of this section, a food or drink is
adulterated if the food or drink is deemed adulterated under G.S.
106-129; and food or drink is misbranded if it is deemed
misbranded under G.S. 106-130. (1983, c. 891, s. 2; 1997-261, s.
109; 1997-443, s. 11A.63A.)
§ 130A-22. Administrative penalties.
(a) The Secretary of Environment and Natural Resources may
impose an administrative penalty on a person who violates Article
9 of this Chapter, rules adopted by the Commission pursuant to
Article 9, or any order issued under Article 9. Each day of a
continuing violation shall constitute a separate violation. The
penalty shall not exceed five thousand dollars ($5,000) per day
in the case of a violation involving nonhazardous waste. The
penalty shall not exceed twenty-five thousand dollars ($25,000)
per day in case of a first violation involving hazardous waste as
defined in G.S. 130A-290 or involving the disposal of medical
waste as defined in G.S. 130A-290 in or upon water in a manner
that results in medical waste entering waters or lands of the
State; and shall not exceed fifty thousand dollars ($50,000) per
day for a second or further violation involving the disposal of
medical waste as defined in G.S. 130A-290 in or upon water in a
manner that results in medical waste entering waters or lands of
the State. If a person fails to pay a civil penalty within 60
days after the final agency decision or court order has been
served on the violator, the Secretary of Environment and Natural
Resources shall request the Attorney General to institute a civil
action in the superior court of any county in which the violator
resides or has his or its principal place of business to recover
the amount of the assessment. Such civil actions must be filed
within three years of the date the final agency decision or court
order was served on the violator.
(a1) Part 5 of Article 21A of Chapter 143 of the General
Statutes shall apply to the determination of civil liability or
penalty pursuant to subsection (a) of this section.
(b) The Secretary of Environment and Natural Resources may
impose an administrative penalty on a person who violates G.S.
130A-325. Each day of a continuing violation shall constitute a
separate violation. The penalty shall not exceed twenty-five
thousand dollars ($25,000) for each day the violation continues.
(b1) The Secretary may impose an administrative penalty on
a person who violates Article 19 of this Chapter or a rule
adopted pursuant to that Article. Except as provided in
subsection (b2) of this section, the penalty shall not exceed one
thousand dollars ($1,000) per day per violation. Until the
Department has notified the person of the violation, a continuing
violation shall be treated as one violation. Each day thereafter
of a continuing violation shall be treated as a separate
violation.
In determining the amount of a penalty under this subsection
or subsection (b2) of this section, the Secretary shall consider
all of the following factors:
(1) The degree and extent of harm to the natural
resources of the State, to the public health, or to private
property resulting from the violation.
(2) The duration and gravity of the violation.
(3) The effect on air quality.
(4) The cost of rectifying the damage.
(5) The amount of money the violator saved by
noncompliance.
(6) The prior record of the violator in complying
or failing to comply with Article 19 of this Chapter or a rule
adopted pursuant to that Article.
(7) The cost to the State of the enforcement
procedures.
(8) If applicable, the size of the renovation and
demolition involved in the violation.
(b2) The penalty for violations of the asbestos NESHAP for
demolition and renovation, as defined in G.S. 130A-444, shall not
exceed ten thousand dollars ($10,000) per day per violation.
Until the Department has provided the person with written
notification of the violation of the asbestos NESHAP for
demolition and renovation that describes the violation,
recommends a general course of action, and establishes a time
frame in which to correct the violations, a continuing violation
shall be treated as one violation. Each day thereafter of a
continuing violation shall be treated as a separate violation. A
violation of the asbestos NESHAP for demolition and renovation is
not considered to continue during the period a person who has
received the notice of violation is following the general course
of action and complying with the time frame set forth in the
notice of violation.
(b3) The Secretary may impose an administrative penalty on
a person who violates Article 19A of this Chapter or any rules
adopted pursuant to Article 19A of this Chapter. Each day of a
continuing violation is a separate violation. The penalty shall
not exceed one thousand dollars ($1,000) for each day the
violation continues. The penalty authorized by this section does
not apply to a person who is not required to be certified under
this Article.
(c) The Secretary of Environment and Natural Resources may
impose an administrative penalty on a person who willfully
violates Article 11 of this Chapter, rules adopted by the
Commission pursuant to Article 11 or any condition imposed upon a
permit issued under Article 11. An administrative penalty may not
be imposed upon a person who establishes that neither the site
nor the system may be improved or a new system installed so as to
comply with Article 11 of this Chapter. Each day of a continuing
violation shall constitute a separate violation. The penalty
shall not exceed fifty dollars ($50.00) per day in the case of a
wastewater collection, treatment and disposal system with a
design daily flow of no more than 480 gallons or in the case of
any system serving a single one-family dwelling. The penalty
shall not exceed three hundred dollars ($300.00) per day in the
case of a wastewater collection, treatment and disposal system
with a design daily flow of more than 480 gallons which does not
serve a single one-family dwelling.
(c1) The Secretary may impose a monetary penalty on a
vendor who violates rules adopted by the Commission pursuant to
Article 13 of this Chapter when the Secretary determines that
disqualification would result in hardship to participants in the
Women, Infants, and Children (WIC) program. The penalty shall be
calculated using the following formula: multiply five percent
(5%) times the average dollar amount of the vendor's monthly
redemptions of WIC food instruments for the 12-month period
immediately preceding disqualification, then multiply that
product by the number of months of the disqualification period
determined by the Secretary.
(d) In determining the amount of the penalty in subsections
(a), (b) and (c), the Secretary and the Secretary of the
Department of Environment and Natural Resources shall consider
the degree and extent of the harm caused by the violation and the
cost of rectifying the damage.
(e) A person contesting a penalty shall, by filing a
petition pursuant to G.S. 150B-23(a) not later than 30 days after
receipt by the petitioner of the document which constitutes
agency action, be entitled to an administrative hearing and
judicial review in accordance with Chapter 150B of the General
Statutes, the Administrative Procedure Act.
(f) The Commission shall adopt rules concerning the
imposition of administrative penalties under this section.
(g) The Secretary or the Secretary of Environment and
Natural Resources may bring a civil action in the superior court
of the county where the violation occurred or where the defendant
resides to recover the amount of an administrative penalty
authorized under this section whenever a person:
(1) Who has not requested an administrative hearing
in accordance with subsection (e) of this section fails to pay
the penalty within 60 days after being notified of the penalty;
or
(2) Who has requested an administrative hearing
fails to pay the penalty within 60 days after service of a
written copy of the final agency decision.
(h) A local health director may impose an administrative
penalty on any person who willfully violates the wastewater
collection, treatment, and disposal rules of the local board of
health adopted pursuant to G.S. 130A-335(c) or who willfully
violates a condition imposed upon a permit issued under the
approved local rules. An administrative penalty may not be
imposed upon a person who establishes that neither the site nor
the system may be improved or a new system installed so as to
comply with Article 11 of this Chapter. The local health director
shall establish and recover the amount of the administrative
penalty in accordance with subsections (d) and (g). Each day of a
continuing violation shall constitute a separate violation. The
penalty shall not exceed fifty dollars ($50.00) per day in the
case of a wastewater collection, treatment and disposal system
with a design daily flow of no more than 480 gallons or in the
case of any system serving a single one-family dwelling. The
penalty shall not exceed three hundred dollars ($300.00) per day
in the case of a wastewater collection, treatment and disposal
system with a design daily flow of more than 480 gallons which
does not serve a single one-family dwelling. A person contesting
a penalty imposed under this subsection shall be entitled to an
administrative hearing and judicial review in accordance with
G.S. 130A-24. A local board of health shall adopt rules
concerning the imposition of administrative penalties under this
subsection.
(i) The clear proceeds of penalties assessed pursuant to
this section shall be remitted to the Civil Penalty and
Forfeiture Fund in accordance with G.S. 115C-457.2. (1983, c.
891, s. 2; 1987, c. 269, s. 2; c. 656; c. 704, s. 1; c. 827, s.
247; 1989, c. 742, s. 4; 1991, c. 691, s. 1; c. 725, s. 8; 1991
(Reg. Sess., 1992), c. 944, s. 11; 1993 (Reg. Sess., 1994), c.
686, s. 1; 1995, c. 504, s. 8; 1997-443, s. 11A.64; 1997-523, s.
2; 1998-215, s. 54(a).)
§ 130A-23. Suspension and revocation of permits
and program participation.
(a) The Secretary may suspend or revoke a permit issued
under this Chapter upon a finding that a violation of the
applicable provisions of this Chapter, the rules of the
Commission or a condition imposed upon the permit has occurred. A
permit may also be suspended or revoked upon a finding that its
issuance was based upon incorrect or inadequate information that
materially affected the decision to issue the permit.
(b) The Secretary may suspend or revoke a person's
participation in a program administered under this Chapter upon a
finding that a violation of the applicable provisions of this
Chapter or the rules of the Commission has occurred. Program
participation may also be suspended or revoked upon a finding
that participation was based upon incorrect or inadequate
information that materially affected the decision to grant
program participation.
(c) A person shall be given notice that there has been a
tentative decision to suspend or revoke the permit or program
participation and that an administrative hearing will be held in
accordance with Chapter 150B of the General Statutes, the
Administrative Procedure Act, at which time the person may
challenge the tentative decision.
(d) A permit shall be suspended or revoked immediately if a
violation of the Chapter, the rules or a condition imposed upon
the permit presents an imminent hazard. An operation permit
issued pursuant to G.S. 130A-281 shall be immediately suspended
for failure of a public swimming pool to maintain minimum water
quality or safety standards or design and construction standards
pertaining to the abatement of suction hazards which result in an
unsafe condition. A permit issued pursuant to G.S. 130A-248 shall
be revoked immediately for failure of an establishment to
maintain a minimum grade of C. The Secretary of Environment and
Natural Resources shall immediately give notice of the suspension
or revocation and the right of the permit holder or program
participant to appeal the suspension or revocation under G.S.
150B-23.
(e) The Secretary of Environment and Natural Resources
shall have all of the applicable rights enumerated in this
section to enforce the provisions of Articles 8, 9, 10, 11, and
12 of this Chapter. (1983, c. 891, s. 2; 1987, c. 827, s. 1; c.
438, s. 3; 1993, c. 211, s. 2; 1993 (Reg. Sess., 1994), c. 732,
s. 2; 1995, c. 123, s. 15; 1997-443, s. 11A.65.)
§ 130A-24. Appeals procedure.
(a) Appeals concerning the enforcement of rules adopted by
the Commission, concerning the suspension and revocation of
permits and program participation by the Secretary and concerning
the imposition of administrative penalties by the Secretary shall
be governed by Chapter 150B of the General Statutes, the
Administrative Procedure Act.
(a1) Any person appealing an action taken by the Department
pursuant to this Chapter or rules of the Commission shall file a
petition for a contested case with the Office of Administrative
Hearings as provided in G.S. 150B-23(a). The petition shall be
filed not later than 30 days after notice of the action which
confers the right of appeal unless a federal statute or
regulation provides for a different time limitation. The time
limitation imposed under this subsection shall commence when
notice of the agency decision is given to all persons aggrieved.
Such notice shall be provided to all persons known to the agency
by personal delivery or by the placing of notice in an official
depository of the United States Postal Service addressed to the
person at the latest address provided to the agency by the
person.
(b) Appeals concerning the enforcement of rules adopted by
the local board of health and concerning the imposition of
administrative penalties by a local health director shall be
conducted in accordance with this subsection and subsections (c)
and (d) of this section. The aggrieved person shall give written
notice of appeal to the local health director within 30 days of
the challenged action. The notice shall contain the name and
address of the aggrieved person, a description of the challenged
action and a statement of the reasons why the challenged action
is incorrect. Upon filing of the notice, the local health
director shall, within five working days, transmit to the local
board of health the notice of appeal and the papers and materials
upon which the challenged action was taken.
(c) The local board of health shall hold a hearing within
15 days of the receipt of the notice of appeal. The board shall
give the person not less than 10 days' notice of the date, time
and place of the hearing. On appeal, the board shall have
authority to affirm, modify or reverse the challenged action. The
local board of health shall issue a written decision based on the
evidence presented at the hearing. The decision shall contain a
concise statement of the reasons for the decision.
(d) A person who wishes to contest a decision of the local
board of health under subsection (b) of this section shall have a
right of appeal to the district court having jurisdiction within
30 days after the date of the decision by the board. The scope of
review in district court shall be the same as in G.S. 150B-51.
(e) The appeals procedures enumerated in this section shall
apply to appeals concerning the enforcement of rules, the
imposition of administrative penalties, or any other action taken
by the Department of Environment and Natural Resources pursuant
to Articles 8, 9, 10, 11, and 12 of this Chapter. (1983, c. 891,
s. 2; 1987, c. 482; c. 827, s. 248; 1993, c. 211, s. 1; 1997-443,
s. 11A.66; 1998-217, s. 33.)
§ 130A-25. Misdemeanor.
(a) A person who violates a provision of this Chapter or
the rules adopted by the Commission or a local board of health
shall be guilty of a misdemeanor.
(b) A person convicted under this section for violation of
G.S. 130A-144(f) or G.S. 130A-145 shall not be sentenced under
Article 81B of Chapter 15A of the General Statutes but shall
instead be sentenced to a term of imprisonment of no more than
two years and shall serve any prison sentence in McCain Hospital,
Division of Prisons, Department of Correction, McCain, North
Carolina; the North Carolina Correctional Center for Women,
Division of Prisons, Department of Correction, Raleigh, North
Carolina; or any other confinement facility designated for this
purpose by the Secretary of Correction after consultation with
the State Health Director. The Secretary of Correction shall
consult with the State Health Director concerning the medical
management of these persons.
(c) Notwithstanding G.S. 148-4.1, G.S. 148-13, or any other
contrary provision of law, a person imprisoned for violation of
G.S. 130A-144(f) or G.S. 130A-145 shall not be released prior to
the completion of the person's term of imprisonment unless and
until a determination has been made by the District Court that
release of the person would not create a danger to the public
health. This determination shall be made only after the medical
consultant of the confinement facility and the State Health
Director, in consultation with the local health director of the
person's county of residence, have made recommendations to the
Court. (1983, c. 891, s. 2; 1987, c. 782, s. 19; 1991, c. 187, s.
1; 1993, c. 539, s. 946; 1994, Ex. Sess., c. 24, s. 14(c); 1993
(Reg. Sess., 1994), c. 767, s. 18.)
§ 130A-26: Repealed by Session Laws 1995, c. 311,
s. 1.
§ 130A-26.1. Criminal violation of Article
9.
(a) The definition of "person" set out in G.S. 130A-290
shall apply to this section. In addition, for purposes of this
section, the term "person" shall also include any responsible
corporate or public officer or employee.
(b) No proceeding shall be brought or continued under this
section for or on account of a violation by any person who has
previously been convicted of a federal violation based upon the
same set of facts.
(c) In proving the defendant's possession of actual
knowledge, circumstantial evidence may be used, including
evidence that the defendant took affirmative steps to shield
himself from relevant information. Consistent with the principles
of common law, the subjective mental state of defendants may be
inferred from their conduct.
(d) For the purposes of the felony provisions of this
section, a person's state of mind shall not be found "knowingly
and willfully" or "knowingly" if the conduct that is the subject
of the prosecution is the result of any of the following
occurrences or circumstances:
(1) A natural disaster or other act of God which
could not have been prevented or avoided by the exercise of due
care or foresight.
(2) An act of third parties other than agents,
employees, contractors, or subcontractors of the defendant.
(3) An act done in reliance on the written advice
or emergency on-site direction of an employee of the Department
of Environment and Natural Resources. In emergencies, oral advice
may be relied upon if written confirmation is delivered to the
employee as soon as practicable after receiving and relying on
the advice.
(4) An act causing no significant harm to the
environment or risk to the public health, safety, or welfare and
done in compliance with other conflicting environmental
requirements or other constraints imposed in writing by
environmental agencies or officials after written notice is
delivered to all relevant agencies that the conflict exists and
will cause a violation of the identified standard.
(5) Violations of permit limitations causing no
significant harm to the environment or risk to the public health,
safety, or welfare for which no enforcement action or civil
penalty could have been imposed under any written civil
enforcement guidelines in use by the Department of Environment
and Natural Resources at the time, including but not limited to,
guidelines for the pretreatment permit civil penalties. This
subdivision shall not be construed to require the Department of
Environment and Natural Resources to develop or use written civil
enforcement guidelines.
(e) All general defenses, affirmative defenses, and bars to
prosecution that may apply with respect to other criminal
offenses under State criminal offenses may apply to prosecutions
brought under this section or other criminal statutes that refer
to this section and shall be determined by the courts of this
State according to the principles of common law as they may be
applied in the light of reason and experience. Concepts of
justification and excuse applicable under this section may be
developed in the light of reason and experience.
(f) Any person who knowingly and willfully does any of the
following shall be guilty of a Class I felony, which may include
a fine not to exceed one hundred thousand dollars ($100,000) per
day of violation, provided that this fine shall not exceed a
cumulative total of five hundred thousand dollars ($500,000) for
each period of 30 days during which a violation continues:
(1) Transports or causes to be transported any
hazardous waste identified or listed under G.S. 130A-294(c) to a
facility which does not have a permit or interim status under
G.S. 130A-294(c) or 42 U.S.C. § 6921, et seq.
(2) Transports or causes to be transported such
hazardous waste with the intent of delivery to a facility without
a permit.
(3) Treats, stores, or disposes of such hazardous
waste without a permit or interim status under G.S. 130A-294(c)
or 42 U.S.C. § 6921, et seq., or in knowing violation of any
material condition or requirement or such permit or applicable
interim status rules.
(g) Any person who knowingly and willfully does any of the
following shall be guilty of a Class I felony, which may include
a fine not to exceed one hundred thousand dollars ($100,000) per
day of violation, provided that the fine shall not exceed a
cumulative total of five hundred thousand dollars ($500,000) for
each period of 30 days during which a violation continues:
(1) Transports or causes to be transported
hazardous waste without a manifest as required under G.S. 130A-
294(c).
(2) Transports hazardous waste without a United
States Environmental Protection Agency identification number as
required by rules promulgated under G.S. 130A-294(c).
(3) Omits material information or makes any false
material statement or representation in any application, label,
manifest, record, report, permit, or other document filed,
maintained, or used for purposes of compliance with rules
promulgated under G.S. 130A-294(c).
(4) Generates, stores, treats, transports, disposes
of, exports, or otherwise handles any hazardous waste or any used
oil burned for energy recovery and who knowingly destroys,
alters, conceals, or fails to file any record, application,
manifest, report, or other document required to be maintained or
filed for purposes of compliance with rules promulgated under
G.S. 130A-294(c).
(5) Provides false information or fails to provide
information relevant to a decision by the Department as to
whether or not to enter into a brownfields agreement under Part 5
of Article 9 of this Chapter.
(6) Provides false information or fails to provide
information required by a brownfields agreement under Part 5 of
Article 9 of this Chapter.
(7) Provides false information relevant to a
decision by the Department pursuant to:
a. G.S. 130A-308(b).
b. G.S. 130A-310.7(c).
c. G.S. 143-215.3(f).
d. G.S. 143-215.84(e).
(h) For the purposes of subsections (f) and (g) of this
section, the phrase "knowingly and willfully" shall mean
intentionally and consciously as the courts of this State,
according to the principles of common law interpret the phrase in
the light of reason and experience.
(i) (1) Any person who knowingly transports,
treats, stores, disposes of, or exports any hazardous waste or
used oil regulated under G.S. 130A-294(c) in violation of
subsection (f) or (g) of this section, who knows at the time that
he thereby places another person in imminent danger of death or
personal bodily injury shall be guilty of a Class C felony which
may include a fine not to exceed two hundred fifty thousand
dollars ($250,000) per day of violation, provided that this fine
shall not exceed a cumulative total of one million dollars
($1,000,000) for each period of 30 days during which a violation
continues.
(2) For the purposes of this subsection, a person's
state of mind is knowing with respect to:
a. His conduct, if he is aware of the nature
of his conduct;
b. An existing circumstance, if he is aware or
believes that the circumstance exists; or
c. A result of his conduct, if he is aware or
believes that his conduct is substantially certain to cause
danger of death or serious bodily injury.
(3) Under this subsection, in determining whether a
defendant who is a natural person knew that his conduct placed
another person in imminent danger of death or serious bodily
injury:
a. The person is responsible only for actual
awareness or actual belief that he possessed; and
b. Knowledge possessed by a person other than
the defendant but not by the defendant himself may not be
attributed to the defendant.
(4) It is an affirmative defense to a prosecution
under this subsection that the conduct charged was conduct
consented to by the person endangered and that the danger and
conduct charged were reasonably foreseeable hazards of an
occupation, a business, or a profession; or of medical treatment
or medical or scientific experimentation conducted by
professionally approved methods and such other person had been
made aware of the risks involved prior to giving consent. The
defendant may establish an affirmative defense under this
subdivision by a preponderance of the evidence.
(j) Any person convicted of an offense under subsection
(f), (g), or (h) of this section following a previous conviction
under this section shall be subject to a fine, or imprisonment,
or both, not exceeding twice the amount of the fine, or twice the
term of imprisonment provided in the subsection under which the
second or subsequent conviction occurs. (1989 (Reg. Sess., 1990),
c. 1045, s. 9; 1993, c. 539, ss. 1303-1305; 1994, Ex. Sess., c.
24, s. 14(c); 1997-357, s. 3; 1997-443, s. 11A.67.)
§ 130A-26.2. Penalty for false reporting under
Article 9.
Any person who knowingly makes any false statement,
representation, or certification in any application, record,
report, plan, or other document filed or required to be
maintained under Article 9 of this Chapter or rules adopted under
Article 9 of this Chapter; or who knowingly makes a false
statement of a material fact in a rule-making proceeding or
contested case under Article 9 of this Chapter; or who falsifies,
tampers with, or knowingly renders inaccurate any recording or
monitoring device or method required to be operated or maintained
under Article 9 of this Chapter or rules adopted under Article 9
of this Chapter is guilty of a Class 2 misdemeanor. The maximum
fine that may be imposed for an offense under this section is ten
thousand dollars ($10,000). (1993 (Reg. Sess., 1994), c. 598, s.
3.)
§ 130A-26A. Violations of Article 4.
(a) A person who commits any of the following acts shall be
guilty of a Class 1 misdemeanor:
(1) Willfully and knowingly makes any false
statement in a certificate, record, or report required by Article
4 of this Chapter;
(2) Removes or permits the removal of a dead body
of a human being without authorization provided in Article 4 of
this Chapter;
(3) Refuses or fails to furnish correctly any
information in the person's possession or furnishes false
information affecting a certificate or record required by Article
4 of this Chapter;
(4) Fails, neglects, or refuses to perform any act
or duty required by Article 4 of this Chapter or by the
instructions of the State Registrar prepared under authority of
the Article.
(5) Charges a fee for performing any act or duty
required by Article 4 of this Chapter or by the State Registrar
pursuant to Article 4 of this Chapter, other than fees
specifically authorized by law.
(b) A person who commits any of the following acts shall be
guilty of a Class I felony:
(1) Willfully and knowingly makes any false
statement in an application for a certified copy of a vital
record, or who willfully and knowingly supplies false information
intending that the information be used in the obtaining of any
copy of a vital record;
(2) Without lawful authority and with the intent to
deceive makes, counterfeits, alters, amends, or mutilates a
certificate, record, or report required by Article 4 of this
Chapter or a certified copy of the certificate, record, or
report;
(3) Willfully and knowingly obtains, possesses,
sells, furnishes, uses, or attempts to use for any purpose of
deception, a certificate, record, or report required by Article 4
of this Chapter or a certified copy of the certificate, record,
or report, which is counterfeited, altered, amended, or
mutilated, or which is false in whole or in part or which relates
to the birth of another person, whether living or deceased;
(4) When employed by the Vital Records Section of
the Department or designated under Article 4 of this Chapter,
willfully and knowingly furnishes or processes a certificate of
birth, death, marriage, or divorce, or certified copy of a
certificate of birth, death, marriage, or divorce with the
knowledge or intention that it be used for the purposes of
deception;
(5) Without lawful authority possesses a
certificate, record, or report required by Article 4 of this
Chapter or a certified copy of the certificate, record, or report
knowing that it was stolen or otherwise unlawfully obtained;
(6) Willfully alters, except as provided by G.S.
130A-118, or falsifies a certificate or record required by
Article 4 of this Chapter; or willfully alters, falsifies, or
changes a photocopy, certified copy, extract copy, or any
document containing information obtained from an original or copy
of a certificate or record required by Article 4 of this Chapter;
or willfully makes, creates, or uses any altered, falsified or
changed record, reproduction, copy or document for the purpose of
attempting to prove or establish for any purpose whatsoever any
matter purported to be shown on it;
(7) Without lawful authority, manufactures or
possesses the seal of: (i) the Vital Records Section, (ii) a
county register of deeds, or (iii) a county health department, or
without lawful authority, manufactures or possesses a
reproduction or a counterfeit copy of the seal;
(8) Without lawful authority prepares or issues any
certificate which purports to be an official certified copy of a
vital record;
(9) Without lawful authority, manufactures or
possesses Vital Records Section, county register of deeds, or
county health department vital records forms or safety paper used
to certify births, deaths, marriages, and divorces, or
reproductions or counterfeit copies of the forms or safety paper;
or
(10) Willfully and knowingly furnishes a
certificate of birth or certified copy of a record of birth with
the intention that it be used by an unauthorized person or for an
unauthorized purpose. (1995, c. 311, s. 2.)
§ 130A-27. Recovery of money.
The Secretary or the Secretary of Environment and Natural
Resources may institute an action in the county where the action
arose or the county where the defendant resides to recover any
money, other property or interest in property or the monetary
value of goods or services provided or paid for by the Department
or the Secretary of Environment and Natural Resources which are
wrongfully paid or transferred to a person under a program
administered by the Department or the Secretary of Environment
and Natural Resources pursuant to this Chapter. (1983, c. 891, s.
2; 1997-443, s. 11A.68.)
§130A-28. Forfeiture of gain.
In the case of a violation of this Chapter or the rules
adopted by the Commission, money or other property or interest in
property so acquired shall be forfeited to the State unless
ownership by an innocent person may be established. An action may
be instituted by the Attorney General or a district attorney
pursuant to G.S. 1-532. (1983, c. 891, s. 2.)
§ 130A-29. Commission for Health Services --
creation, powers and duties.
(a) The Commission for Health Services is created with the
authority and duty to adopt rules to protect and promote the
public health.
(b) The Commission is authorized to adopt rules necessary
to implement the public health programs administered by the
Department as provided in this Chapter.
(c) The Commission shall adopt rules:
(1) Repealed by Session Laws 1983 (Regular Session,
1984), c. 1022, s. 5.
(2) Establishing standards for approving sewage-
treatment devices and holding tanks for marine toilets as
provided in G.S. 75A-6(o).
(3) Establishing specifications for sanitary
privies for schools where water-carried sewage facilities are
unavailable as provided in G.S. 115C-522.
(4) Establishing requirements for the sanitation of
local confinement facilities as provided in Part 2 of Article 10
of Chapter 153A of the General Statutes.
(5) Repealed by Session Laws 1989 (Regular Session,
1990), c. 1075, s. 1.
(5a) Establishing eligibility standards for
participation in Department reimbursement programs.
(6) Requiring proper treatment and disposal of
sewage and other waste from chemical and portable toilets.
(7) Establishing statewide health outcome
objectives and delivery standards.
(8) Establishing permit requirements for the
sanitation of premises, utensils, equipment, and procedures to be
used by a person engaged in tattooing, as provided in Part 11 of
Article 8 of this Chapter.
(d) The Commission is authorized to create:
(1) Metropolitan water districts as provided in
G.S. 162A-33;
(2) Sanitary districts as provided in Part 2 of
Article 2 of this Chapter; and
(3) Mosquito control districts as provided in Part
2 of Article 12 of this Chapter.
(e) Rules adopted by the Commission shall be enforced by
the Department. (1973, c. 476, s. 123; 1975, c. 19, s. 57, c.
694, s. 6; 1979, c. 41, s. 1; 1981, c. 614, s. 9; 1983, c. 891,
s. 15; 1983 (Reg. Sess., 1984), c. 1022, s. 5; 1989, c. 727, ss.
175, 176; 1989 (Reg. Sess., 1990), c. 1004, s. 50; c. 1075, s. 1;
1991, c. 548, s. 2; 1993, c. 321, s. 274; 1993 (Reg. Sess.,
1994), c. 670, s. 3.)
§ 130A-30. Commission for Health Services --
Members; selection; quorum; compensation.
(a) The Commission for Health Services shall consist of 13
members, four of whom shall be elected by the North Carolina
Medical Society and nine of whom shall be appointed by the
Governor.
(b) One of the members appointed by the Governor shall be a
licensed pharmacist, one a registered engineer experienced in
sanitary engineering or a soil scientist, one a licensed
veterinarian, one a licensed optometrist, one a licensed dentist,
and one a registered nurse. The initial members of the Commission
shall be the members of the State Board of Health who shall serve
for a period equal to the remainder of their current terms on the
State Board of Health, three of whose appointments expire May 1,
1973, and two of whose appointments expire May 1, 1975. At the
end of the respective terms of office of initial members of the
Commission, their successors shall be appointed for terms of four
years and until their successors are appointed and qualify. Any
appointment to fill a vacancy on the Commission created by the
resignation, dismissal, death, or disability of a member shall be
for the balance of the unexpired term.
(c) The North Carolina Medical Society shall have the right
to remove any member elected by it for misfeasance, malfeasance,
or nonfeasance, and the Governor shall have the right to remove
any member appointed by him for misfeasance, malfeasance, or
nonfeasance in accordance with the provisions of G.S. 143B-13.
Vacancies on said Commission among the membership elected by the
North Carolina Medical Society shall be filled by the executive
committee of the Medical Society until the next meeting of the
Medical Society, when the Medical Society shall fill the vacancy
for the unexpired term. Vacancies on said Commission among the
membership appointed by the Governor shall be filled by the
Governor for the unexpired term.
(d) A majority of the members of the Commission shall
constitute a quorum for the transaction of business.
(e) The members of the Commission shall receive per diem
and necessary traveling and subsistence expenses in accordance
with the provisions of G.S. 138-5. (1973, c. 476, s. 124; c.
1367, ss. 1, 2; 1981, c. 553; 1989, c. 727, ss. 175, 177; 1989
(Reg. Sess., 1990), c. 1004, s. 51; 1995, c. 507, s. 26.8(d).)
§ 130A-31. Commission for Health Services --
officers.
The Commission for Health Services shall have a chairman and
a vice-chairman. The chairman shall be designated by the Governor
from among the members of the Commission to serve as chairman at
his pleasure. The vice-chairman shall be elected by and from the
members of the Commission and shall serve for a term of two years
or until the expiration of his regularly appointed term. (1973,
c. 476, s. 125; 1989, c. 727, s. 175.)
§ 130A-32. Commission for Health Services -- election
meetings.
The meeting of the Commission for Health Services for the
election of vice-chairman shall be at the first regular meeting
after the joint session of the Commission for Health Services and
the North Carolina Medical Society at the annual meeting of the
North Carolina Medical Society each odd-numbered year. (1973, c.
476, s. 126; 1989, c. 727, s. 175.)
§ 130A-33. Commission for Health Services --
regular and special meetings.
Each year there shall be four regular meetings of the
Commission for Health Services, one of which shall be held
conjointly with a general session of the annual meeting of the
North Carolina Medical Society. The State Health Director shall
submit an annual report on public health at this meeting. The
other three meetings shall be at such times and places as the
chairman of the Commission shall designate. Special meetings of
the Commission may be called by the chairman, or by a majority of
the members of the Commission. (1973, c. 476, s. 127; 1989, c.
727, ss. 175, 178; 1993, c. 513, s. 6.)
ARTICLE 1B.
Commissions and Councils.
Part 1. Commission of Anatomy.
§ 130A-33.30. Commission of Anatomy --
Creation; powers and duties.
There is created the Commission of Anatomy in the Department
with the power and duty to adopt rules for the distribution of
dead human bodies and parts thereof for the purpose of promoting
the study of anatomy in the State of North Carolina. The
Commission is authorized to receive dead bodies pursuant to G.S.
130A-415 and to be a donee of a body or parts thereof pursuant to
Part 3, Article 16 of Chapter 130A of the General Statutes known
as the Uniform Anatomical Gift Act and to distribute such bodies
or parts thereof pursuant to the rules adopted by the Commission.
(1975, c. 694, s. 2; 1989, c. 727, ss. 182(a), 183; 1989 (Reg.
Sess., 1990), c. 1024, s. 29; 1997-443, s. 11A.69.)
§ 130A-33.31. Commission of Anatomy -- Members;
selection; term; chairman; quorum; meetings.
(a) The Commission of Anatomy shall consist of five
members, one representative from the field of mortuary science,
and one each from The University of North Carolina School of
Medicine, East Carolina University School of Medicine, Duke
University School of Medicine, and Bowman Gray School of
Medicine. The dean of each school shall make recommendations and
the Secretary shall appoint from such recommendations a member to
the Commission. The president of the State Board of Mortuary
Science shall appoint the representative from the field of
mortuary science to the Commission. The members shall serve terms
of four years except two of the original members shall serve a
term of one year, one shall serve a term of two years, one shall
serve a term of three years, and one shall serve a term of four
years. The Secretary shall determine the terms of the original
members.
(b) Any appointment to fill a vacancy on the Commission
created by the resignation, dismissal, death, or disability of a
member shall be for the balance of the unexpired term.
(c) The Secretary shall remove any member of the Commission
from office for misfeasance, malfeasance or nonfeasance.
(d) The Commission shall elect a chair annually from its
own membership.
(e) A majority of the Commission shall constitute a quorum
for the transaction of business.
(f) The Commission shall meet at any time and place within
the State at the call of the chair or upon the written request of
three members.
(g) All clerical and other services required by the
Commission shall be supplied by the Secretary. (1975, c. 694, s.
2; 1989, c. 727, ss. 182(a), 184; 1995, c. 123, s. 5; 1997-443,
s. 11A.70.)
§ 130A-33.32. Commission of Anatomy -- reference to
former Board of Anatomy in testamentary disposition.
A testamentary disposition of a body or part thereof to the
former Board of Anatomy shall be deemed in all respects to be a
disposition to the Commission of Anatomy. (1975, c. 694, s. 2;
1989, c. 727, ss. 182(a), 185.)
Part 2. Governor's Council on Physical Fitness and Health.
§ 130A-33.40. Governor's Council on Physical
Fitness and Health -- Creation; powers; duties.
There is hereby created the Governor's Council on Physical
Fitness and Health in the Department. The Council shall have the
following functions and duties:
(1) To promote interest in the area of physical
fitness; to consider the need for new State programs in the field
of physical fitness; to enlist the active support of individual
citizens, professional and civic groups, amateur and professional
athletes, voluntary organizations, State and local government
agencies, private industry and business, and community recreation
programs in efforts to improve the physical fitness and the
health of the citizens of North Carolina;
(2) To examine current programs of physical fitness
available to the people of North Carolina, and to make
recommendations to the Governor for coordination of programs to
prevent duplication of such services; to support programs of
physical fitness in the public school systems; to develop
cooperative programs with medical, dental, and other groups; to
maintain a liaison with government, private and other agencies
concerning physical fitness programs; to stimulate research in
the area of physical fitness; to sponsor physical fitness
workshops, clinics, conferences, and other related activities
pertaining to physical fitness throughout the State;
(3) To serve as an agency for recognizing
outstanding developments, contributions, and achievements in
physical fitness in North Carolina;
(3a) To serve as the North Carolina sanctioning
body for the State Games and for other competitive athletic
events for which sanctioning by the State is required; and
(4) To make an annual report to the Governor and to
the Secretary, including suggestions and recommendations for the
furtherance of the physical fitness of the people of North
Carolina. (1979, c. 634; 1989, c. 727, ss. 186, 187; 1991, c. 96,
s. 1; 1997-443, s. 11A.71.)
§ 130A-33.41. The Governor's Council on
Physical Fitness and Health -- Members; selection; quorum;
compensation.
The Governor's Council on Physical Fitness in the Department
shall consist of 10 members, including a chair.
(1) The composition of the Council shall be as
follows: one member of the Senate appointed by the President Pro
Tempore of the Senate, and one member of the House of
Representatives appointed by the Speaker of the House of
Representatives, and eight persons from the health care
professions, the fields of business and industry, physical
education, recreation, sports and the general public. The eight
nonlegislative members of the Council shall be appointed by the
Governor to serve at the Governor's pleasure.
(2) The eight initial nonlegislative members of the
Council shall be appointed as follows: two for a term of one
year, two for a term of two years, two for a term of three years,
two for a term of four years. At the end of the respective terms
of office of these initial members, all succeeding appointments
of nonlegislative members shall be for terms of four years;
nonlegislative members shall serve no more than two consecutive
four-year terms; all unexpired terms due to resignation, death,
disability, removal or refusal to serve shall be filled by a
qualified person appointed by the Governor for the balance of the
unexpired term.
(3) Legislative members of the Council shall serve
two-year terms beginning and ending on July 1 of odd-numbered
years, and shall serve no more than two consecutive terms.
(4) Members of the Governor's Council shall receive
per diem and necessary travel and subsistence expenses in
accordance with G.S. 138-5 or 138-6, or travel and subsistence
expenses under G.S. 120-3.1, as appropriate.
(5) The Council shall meet no more than quarterly.
(6) A majority of the Governor's Council shall
constitute a quorum for the transaction of business. (1979, c.
634; 1989, c. 727, ss. 186, 188; 1991, c. 739, s. 20; 1997-443,
s. 11A.72.)
Part 3. Minority Health Advisory Council.
§ 130A-33.43. Minority Health Advisory
Council.
There is established the Minority Health Advisory Council in
the Department. The Council shall have the following duties and
responsibilities:
(1) To make recommendations to the Governor and the
Secretary aimed at improving the health status of North
Carolina's minority populations;
(2) To identify and examine the limitations and
problems associated with existing laws, regulations, programs and
services related to the health status of North Carolina's
minority populations;
(3) To examine the financing and access to health
services for North Carolina's minority populations;
(4) To identify and review health promotion and
disease prevention strategies relating to the leading causes of
death and disability among minority populations; and
(5) To advise the Governor and the Secretary upon
any matter which the Governor or Secretary may refer to it. (1991
(Reg. Sess., 1992), c. 900, s. 166; 1997-443, s. 11A.73.)
§ 130A-33.44. Minority Health Advisory Council
-- members; selection; quorum; compensation.
(a) The Minority Health Advisory Council in the Department
shall consist of 15 members to be appointed as follows:
(1) Five members shall be appointed by the
Governor. Members appointed by the Governor shall be
representatives of the following: health care providers, public
health, health related public and private agencies and
organizations, community-based organizations, and human services
agencies and organizations.
(2) Five members shall be appointed by the Speaker
of the House of Representatives, two of whom shall be members of
the House of Representatives, and at least one of whom shall be a
public member. The remainder of the Speaker's appointees shall be
representative of any of the entities named in subdivision (1) of
this subsection.
(3) Five members shall be appointed by the
President Pro Tempore of the Senate, two of whom shall be members
of the Senate, and at least one of whom shall be a public member.
The remainder of the President Pro Tempore's appointees shall be
representative of any of the entities named in subdivision (1) of
this subsection.
(4) Of the members appointed by the Governor, two
shall serve initial terms of one year, two shall serve initial
terms of two years, and one shall serve an initial term of three
years. Thereafter, the Governor's appointees shall serve terms of
four years.
(5) Of the nonlegislative members appointed by the
Speaker of the House of Representatives, two shall serve initial
terms of two years, and one shall serve an initial term of three
years. Thereafter, nonlegislative members appointed by the
Speaker of the House of Representatives shall serve terms of four
years. Of the nonlegislative members appointed by the President
Pro Tempore of the Senate, two shall serve initial terms of two
years, and one shall serve an initial term of three years.
Thereafter, nonlegislative members appointed by the President Pro
Tempore of the Senate shall serve terms of four years.
Legislative members of the Council shall serve two-year terms.
(b) The Chairperson of the Council shall be elected by the
Council from among its membership.
(c) The majority of the Council shall constitute a quorum
for the transaction of business.
(d) Members of the Council shall receive per diem and
necessary travel and subsistence expenses in accordance with the
provisions of G.S. 138-5 or G.S. 138-6, or travel and subsistence
expenses in accordance with the provisions of G.S. 120-3.1, as
applicable.
(e) All clerical support and other services required by the
Council shall be provided by the Department. (1991 (Reg. Sess.,
1992), c. 900, s. 166; 1997-443, s. 11A.74.)
Part 4. Advisory Committee on Cancer Coordination and Control.
§ 130A-33.50. Advisory Committee on Cancer Coordination
and Control established; membership, compensation.
(a) The Advisory Committee on Cancer Coordination and
Control is established in the Department.
(b) The Committee shall have up to 34 members, including
the Secretary of the Department or the Secretary's designee. The
members of the Committee shall elect a chair and vice-chair from
among the Committee membership. The Committee shall meet at the
call of the chair. Six of the members shall be legislators, three
of whom shall be appointed by the Speaker of the House of
Representatives, and three of whom shall be appointed by the
President Pro Tempore of the Senate. Four of the members shall be
cancer survivors, two of whom shall be appointed by the Speaker
of the House of Representatives, and two of whom shall be
appointed by the President Pro Tempore of the Senate. The
remainder of the members shall be appointed by the Governor as
follows:
(1) One member from the Department of Environment
and Natural Resources;
(2) Three members, one from each of the following:
the Department, the Department of Public Instruction, and the
North Carolina Community College System;
(3) Four members representing the cancer control
programs at North Carolina medical schools, one from each of the
following: the University of North Carolina at Chapel Hill School
of Medicine, the Bowman Gray School of Medicine, the Duke
University School of Medicine, and the East Carolina University
School of Medicine;
(4) One member who is an oncology nurse
representing the North Carolina Nurses Association;
(5) One member representing the Cancer Committee of
the North Carolina Medical Society;
(6) One member representing the Old North State
Medical Society;
(7) One member representing the American Cancer
Society, North Carolina Division, Inc.;
(8) One member representing the North Carolina
Hospital Association;
(9) One member representing the North Carolina
Association of Local Health Directors;
(10) One member who is a primary care physician
licensed to practice medicine in North Carolina;
(11) One member representing the American College
of Surgeons;
(12) One member representing the North Carolina
Oncology Society;
(13) One member representing the Association of
North Carolina Cancer Registrars;
(14) One member representing the Medical Directors
of the North Carolina Association of Health Plans; and
(15) Up to four additional members at large.
Except for the Secretary, the members shall be appointed for
staggered four-year terms and until their successors are
appointed and qualify. The Governor may remove any member of the
Committee from office in accordance with the provisions of G.S.
143B-13. Members may succeed themselves for one term and may be
appointed again after being off the Committee for one term.
(c) The Speaker of the House of Representatives, the
President Pro Tempore of the Senate, and the Governor shall make
their appointments to the Committee not later than 30 days after
the adjournment of the 1993 Regular Session of the General
Assembly. A vacancy on the Committee shall be filled by the
original appointing authority, using the criteria set out in this
section for the original appointment.
(d) To the extent that funds are made available, members of
the Committee shall receive per diem and necessary travel and
subsistence expenses in accordance with G.S. 138-5.
(e) A majority of the Committee shall constitute a quorum
for the transaction of its business.
(f) The Committee may use funds allocated to it to employ
an administrative staff person to assist the Committee in
carrying out its duties. The Secretary shall provide clerical and
other support staff services needed by the Committee. (1993, c.
321, s. 288; 1997-443, s. 11A.75; 1998-212, s. 12.48(a).)
§ 130A-33.51. Advisory Committee on Cancer Coordination and
Control; responsibilities.
(a) The Advisory Committee on Cancer Coordination and
Control has the following responsibilities:
(1) To recommend to the Secretary a plan for the
statewide implementation of an interagency comprehensive
coordinated cancer control program;
(2) To identify and examine the limitations and
problems associated with existing laws, regulations, programs,
and services related to cancer control;
(3) To examine the financing and access to cancer
control services for North Carolina's citizens, and advise the
Secretary on a coordinated and efficient use of resources;
(4) To identify and review health promotion and
disease prevention strategies relating to the leading causes of
cancer mortality and morbidity;
(5) To recommend standards for:
a. Oversight and development of cancer control
services;
b. Development and maintenance of interagency
training and technical assistance in the provision of cancer
control services;
c. Program monitoring and data collection;
d. Statewide evaluation of locally based
cancer control programs;
e. Coordination of funding sources for cancer
control programs; and
f. Procedures for awarding grants to local
agencies providing cancer control services.
(b) The Committee shall submit a written report not later
than May 1, 1994, and not later than October 1 of each subsequent
year, to the Governor and to the Joint Legislative Commission on
Governmental Operations. The report shall address the progress
in implementation of a cancer control program. The report shall
include an accounting of funds expended and anticipated funding
needs for full implementation of recommended programs. (1993, c.
321, s. 288.)
ARTICLE 2.
Local Administration.
Part 1. Local Health Departments.
§ 130A-34. Provision of local public health
services.
(a) A county shall provide public health services.
(b) A county shall operate a county health department,
establish a consolidated human services agency pursuant to G.S.
153A-77, participate in a district health department, or contract
with the State for the provision of public health services.
(1901, c. 245, s. 3; Rev., s. 4444; 1911, c. 62, s. 9; C.S., s.
7604; 1931, c. 149; 1941, c. 185; 1945, c. 99; c. 1030, s. 2;
1947, c. 474, s. 3; 1951, c. 92; 1957, c. 1357, s. 1; 1963, c.
359; 1967, c. 1224, s. 1; 1969, c. 719, s. 1; 1971, c. 175, s. 1;
1973, c. 137, s. 1; c. 1151; 1975, c. 272; 1979, c. 621; 1983, c.
891, s. 2; 1995 (Reg. Sess., 1996), c. 690, s. 13.)
§ 130A-35. County board of health; appointment;
terms.
(a) A county board of health shall be the policy-making,
rule-making and adjudicatory body for a county health department.
(b) The members of a county board of health shall be
appointed by the county board of commissioners. The board shall
be composed of 11 members. The composition of the board shall
reasonably reflect the population makeup of the county and shall
include: one physician licensed to practice medicine in this
State, one licensed dentist, one licensed optometrist, one
licensed veterinarian, one registered nurse, one licensed
pharmacist, one county commissioner, one professional engineer,
and three representatives of the general public. All members
shall be residents of the county. If there is not a licensed
physician, a licensed dentist, a licensed optometrist, a licensed
veterinarian, a registered nurse, a licensed pharmacist, or a
professional engineer available for appointment, an additional
representative of the general public shall be appointed. If
however, one of the designated professions has only one person
residing in the county, the county commissioners shall have the
option of appointing that person or a member of the general
public.
(c) Except as provided in this subsection, members of a
county board of health shall serve three-year terms. No member
may serve more than three consecutive three-year terms unless the
member is the only person residing in the county who represents
one of the professions designated in subsection (b) of this
section. The county commissioner member shall serve only as long
as the member is a county commissioner. When a representative of
the general public is appointed due to the unavailability of a
licensed physician, a licensed dentist, a licensed optometrist, a
licensed veterinarian, a registered nurse, a licensed pharmacist,
or a professional engineer, that member shall serve only until a
licensed physician, a licensed dentist, a licensed optometrist, a
licensed veterinarian, a registered nurse, a licensed pharmacist,
or a professional engineer becomes available for appointment. In
order to establish a uniform staggered term structure for the
board, a member may be appointed for less than a three-year term.
(d) Vacancies shall be filled for any unexpired portion of
a term.
(e) A chairperson shall be elected annually by a county
board of health. The local health director shall serve as
secretary to the board.
(f) A majority of the members shall constitute a quorum.
(g) A member may be removed from office by the county board
of commissioners for:
(1) Commission of a felony or other crime involving
moral turpitude;
(2) Violation of a State law governing conflict of
interest;
(3) Violation of a written policy adopted by the
county board of commissioners;
(4) Habitual failure to attend meetings;
(5) Conduct that tends to bring the office into
disrepute; or
(6) Failure to maintain qualifications for
appointment required under subsection (b) of this section.
A board member may be removed only after the member has been
given written notice of the basis for removal and has had the
opportunity to respond.
(h) A member may receive a per diem in an amount
established by the county board of commissioners. Reimbursement
for subsistence and travel shall be in accordance with a policy
set by the county board of commissioners.
(i) The board shall meet at least quarterly. The
chairperson or three of the members may call a special meeting.
(1901, c. 245, s. 3; Rev., s. 4444; 1911, c. 62, s. 9; C.S., s.
7604; 1931, c. 149; 1941, c. 185; 1945, c. 99; c. 1030, s. 2;
1947, c. 474, s. 3; 1951, c. 92; 1957, c. 1357, s. 1; 1963, c.
359; 1967, c. 1224, s. 1; 1969, c. 719, s. 1; 1971, c. 175, s. 1;
c. 940, s. 1; 1973, c. 137, s. 1; c. 1151; 1975, c. 272; 1979, c.
621; 1981, c. 104; 1983, c. 891, s. 2; 1985, c. 418, s. 1; 1987,
c. 84, s. 1; 1989, c. 764, s. 2; 1995, c. 264, s. 1.)
§130A-36. Creation of district health department.
(a) A district health department including more than one
county may be formed in lieu of county health departments upon
agreement of the county boards of commissioners and local boards
of health having jurisdiction over each of the counties involved.
A county may join a district health department upon agreement of
the boards of commissioners and local boards of health having
jurisdiction over each of the counties involved. A district
health department shall be a public authority as defined in G.S.
159-7(b)(10).
(b) Upon creation of or addition to a district health
department, the existing rules of the former board or boards of
health shall continue in effect until amended or repealed by the
district board of health. (1957, c. 1357, s. 1; 1969, c. 719, s.
2; 1971, c. 175, s. 2; 1973, c. 143, ss. 1-4; c. 476, s. 128;
1975, c. 396, s. 1; 1981, c. 238; c. 408; 1983, c. 891, s. 2.)
§ 130A-37. District board of health.
(a) A district board of health shall be the policy-making,
rule-making and adjudicatory body for a district health
department and shall be composed of 15 members; provided, a
district board of health may be increased up to a maximum number
of 18 members by agreement of the boards of county commissioners
in all counties that comprise the district. The agreement shall
be evidenced by concurrent resolutions adopted by the affected
boards of county commissioners.
(b) The county board of commissioners of each county in the
district shall appoint one county commissioner to the district
board of health. The county commissioner members of the district
board of health shall appoint the other members of the board,
including at least one physician licensed to practice medicine in
this State, one licensed dentist, one licensed optometrist, one
licensed veterinarian, one registered nurse, one licensed
pharmacist, and one professional engineer. The composition of the
board shall reasonably reflect the population makeup of the
entire district and provide equitable district-wide
representation. All members shall be residents of the district.
If there is not a licensed physician, a licensed dentist, a
licensed optometrist, a licensed veterinarian, a registered
nurse, a licensed pharmacist, or a professional engineer
available for appointment, an additional representative of the
general public shall be appointed. If however, one of the
designated professions has only one person residing in the
district, the county commissioner members shall have the option
of appointing that person or a member of the general public.
(c) Except as provided in this subsection, members of a
district board of health shall serve terms of three years. Two of
the original members shall serve terms of one year and two of the
original members shall serve terms of two years. No member shall
serve more than three consecutive three-year terms unless the
member is the only person residing in the district who represents
one of the professions designated in subsection (b) of this
section. County commissioner members shall serve only as long as
the member is a county commissioner. When a representative of the
general public is appointed due to the unavailability of a
licensed physician, a licensed dentist, a licensed optometrist, a
licensed veterinarian, a registered nurse, a licensed pharmacist,
or a professional engineer that member shall serve only until a
licensed physician, a licensed dentist, a licensed optometrist, a
licensed veterinarian, a registered nurse, a licensed pharmacist,
or a professional engineer becomes available for appointment. The
county commissioner members may appoint a member for less than a
three-year term to achieve a staggered term structure.
(d) Whenever a county shall join or withdraw from an
existing district health department, the district board of health
shall be dissolved and a new board shall be appointed as provided
in subsection (c).
(e) Vacancies shall be filled for any unexpired portion of
a term.
(f) A chairperson shall be elected annually by a district
board of health. The local health director shall serve as
secretary to the board.
(g) A majority of the members shall constitute a quorum.
(h) A member may be removed from office by the district
board of health for:
(1) Commission of a felony or other crime involving
moral turpitude;
(2) Violation of a State law governing conflict of
interest;
(3) Violation of a written policy adopted by the
county board of commissioners of each county in the district;
(4) Habitual failure to attend meetings;
(5) Conduct that tends to bring the office into
disrepute; or
(6) Failure to maintain qualifications for
appointment required under subsection (b) of this section.
A board member may be removed only after the member has been
given written notice of the basis for removal and has had the
opportunity to respond.
(i) A member may receive a per diem in an amount
established by the county commissioner members of the district
board of health. Reimbursement for subsistence and travel shall
be in accordance with a policy set by the county commissioner
members of the district board of health.
(j) The board shall meet at least quarterly. The
chairperson or three of the members may call a special meeting.
(k) A district board of health is authorized to provide
liability insurance for the members of the board and the
employees of the district health department. A district board of
health is also authorized to contract for the services of an
attorney to represent the board, the district health department
and its employees, as appropriate. The purchase of liability
insurance pursuant to this subsection waives both the district
board of health's and the district health department's
governmental immunity, to the extent of insurance coverage, for
any act or omission occurring in the exercise of a governmental
function. By entering into a liability insurance contract with
the district board of health, an insurer waives any defense based
upon the governmental immunity of the district board of health or
the district health department. (1957, c. 1357, s. 1; 1969, c.
719, s. 2; 1971, c. 175, s. 2; c. 940, s. 1; 1973, c. 143, ss. 1-
4; c. 476, s. 128; 1975, c. 396, s. 1; 1981, cc. 104, 238, 408;
1983, c. 891, s. 2; 1983 (Reg. Sess., 1984), c. 1077; 1985, c.
418, s. 2; 1987, c. 84, s. 2; 1989, c. 764, s. 3; 1995, c. 264,
s. 2.)
§130A-38. Dissolution of a district health department.
(a) Whenever the board of commissioners of each county
constituting a district health department determines that the
district health department is not operating in the best health
interests of the respective counties, they may direct that the
district health department be dissolved. In addition, whenever a
board of commissioners of a county which is a member of a
district health department determines that the district health
department is not operating in the best health interests of that
county, it may withdraw from the district health department.
Dissolution of a district health department or withdrawal from
the district health department by a county shall be effective
only at the end of the fiscal year in which the action of
dissolution or withdrawal transpired.
(b) Notwithstanding the provisions of subsection (a), no
district health department shall be dissolved without prior
written notification to the Department.
(c) Any budgetary surplus available to a district health
department at the time of its dissolution shall be distributed to
those counties comprising the district on the same pro rata basis
that the counties appropriated and contributed funds to the
district health department budget during the current fiscal year.
Distribution to the counties shall be determined on the basis of
an audit of the financial record of the district health
department. The district board of health shall select a certified
public accountant or an accountant who is subsequently certified
by the Local Government Commission to conduct the audit. The
audit shall be performed in accordance with G.S. 159- 34. The
same method of distribution of funds described above shall apply
when one or more counties of a district health department
withdraw from a district.
(d) Upon dissolution or withdrawal, all rules adopted by a
district board of health shall continue in effect until amended
or repealed by the new board or boards of health. (1971, c. 858;
1975, c. 396, s. 2; c. 403; 1983, c. 891, s. 2.)
§ 130A-39. Powers and duties of a local board
of health.
(a) A local board of health shall have the responsibility
to protect and promote the public health. The board shall have
the authority to adopt rules necessary for that purpose.
(b) A local board of health may adopt a more stringent rule
in an area regulated by the Commission for Health Services or the
Environmental Management Commission where, in the opinion of the
local board of health, a more stringent rule is required to
protect the public health; otherwise, the rules of the Commission
for Health Services or the rules of the Environmental Management
Commission shall prevail over local board of health rules.
However, a local board of health may not adopt a rule concerning
the grading, operating, and permitting of food and lodging
facilities as listed in Part 6 of Article 8 of this Chapter and
as defined in G.S. 130A-247(1), and a local board of health may
adopt rules concerning wastewater collection, treatment and
disposal systems which are not designed to discharge effluent to
the land surface or surface waters only in accordance with G.S.
130A-335(c).
(c) The rules of a local board of health shall apply to all
municipalities within the local board's jurisdiction.
(d) Not less than 10 days before the adoption, amendment or
repeal of any local board of health rule, the proposed rule shall
be made available at the office of each county clerk within the
board's jurisdiction, and a notice shall be published in a
newspaper having general circulation within the area of the
board's jurisdiction. The notice shall contain a statement of the
substance of the proposed rule or a description of the subjects
and issues involved, the proposed effective date of the rule and
a statement that copies of the proposed rule are available at the
local health department. A local board of health rule shall
become effective upon adoption unless a later effective date is
specified in the rule.
(e) Copies of all rules shall be filed with the secretary
of the local board of health.
(f) A local board of health may, in its rules, adopt by
reference any code, standard, rule or regulation which has been
adopted by any agency of this State, another state, any agency of
the United States or by a generally recognized association.
Copies of any material adopted by reference shall be filed with
the rules.
(g) A local board of health may impose a fee for services
to be rendered by a local health department, except where the
imposition of a fee is prohibited by statute or where an employee
of the local health department is performing the services as an
agent of the State. Notwithstanding any other provisions of law,
a local board of health may impose cost-related fees for services
performed pursuant to Article 11 of this Chapter, "Wastewater
Systems," for services performed pursuant to Part 10, Article 8
of this Chapter, "Public Swimming Pools", and for services
performed pursuant to Part 11, Article 8 of this Chapter,
"Tattooing". Fees shall be based upon a plan recommended by the
local health director and approved by the local board of health
and the appropriate county board or boards of commissioners. The
fees collected under the authority of this subsection are to be
deposited to the account of the local health department so that
they may be expended for public health purposes in accordance
with the provisions of the Local Government Budget and Fiscal
Control Act. (1901, c. 245, s. 3; Rev., s. 4444; 1911, c. 62, s.
9; C.S., s. 7065; 1957, c. 1357, s. 1; 1959, c. 1024, s. 1; 1963,
c. 1087; 1973, c. 476, s. 128; c. 508; 1977, c. 857, s. 2; 1981,
c. 130, s. 2; c. 281; c. 949, s. 4; 1983, c. 891, s. 2; 1985, c.
175, s. 1; 1989, c. 577, s. 2; 1991 (Reg. Sess., 1992), c. 944,
s. 10; 1993 (Reg. Sess., 1994), c. 670, s. 2; 1995, c. 507, s.
26.8(c).)
§ 130A-40. Appointment of local health
director.
(a) A local board of health, after consulting with the
appropriate county board or boards of commissioners, shall
appoint a local health director. All persons who are appointed
to the position of local health director on or after January 1,
1992, must possess minimum education and experience requirements
for that position, as follows:
(1) A medical doctorate; or
(2) A masters degree in Public Health
Administration, and at least one year of employment experience in
health programs or health services; or
(3) A masters degree in a public health discipline
other than public health administration, and at least three years
of employment experience in health programs or health services;
or
(4) A masters degree in public administration, and
at least two years of experience in health programs or health
services; or
(5) A masters degree in a field related to public
health, and at least three years of experience in health programs
or health services; or
(6) A bachelors degree in public health
administration or public administration and at least three years
of experience in health programs or health services.
(b) Before appointing a person to the position of local
health director under subsection (a)(5) of this section, the
local board of health shall forward the application and other
pertinent materials of such candidate to the State Health
Director. If the State Health Director determines that the
candidate's masters degree is in a field not related to public
health, the State Health Director shall so notify the local board
of health in writing within 15 days of the State Health
Director's receipt of the application and materials, and such
candidate shall be deemed not to meet the education requirements
of subsection (a)(5) of this section. If the State Health
Director fails to act upon the application within 15 days of
receipt of the application and materials from the local board of
health, the application shall be deemed approved with respect to
the education requirements of subsection (a)(5) of this section,
and the local board of health may proceed with appointment
process.
(c) The State Health Director shall review requests of
educational institutions to determine whether a particular
masters degree offered by the requesting institution is related
to public health for the purposes of subsection (a)(5) of this
section. The State Health Director shall act upon such requests
within 90 days of receipt of the request and pertinent materials
from the institution, and shall notify the institution of its
determination in writing within the 90-day review period. If the
State Health Director determines that an institution's particular
masters degree is not related to public health, the State Health
Director shall include the reasons therefor in his written
determination to the institution.
(d) When a local board of health fails to appoint a local
health director within 60 days of the creation of a vacancy, the
State Health Director may appoint a local health director to
serve until the local board of health appoints a local health
director in accordance with this section. (1957, c. 1357, s. 1;
1973, c. 152; c. 476, s. 128; 1983, c. 891, s. 2; 1983 (Reg.
Sess., 1984), c. 1034, s. 75; 1991, c. 612.)
§ 130A-41. Powers and duties of local health
director.
(a) A local health director shall be the administrative
head of the local health department, shall perform public health
duties prescribed by and under the supervision of the local board
of health and the Department and shall be employed full time in
the field of public health.
(b) A local health director shall have the following powers
and duties:
(1) To administer programs as directed by the local
board of health;
(2) To enforce the rules of the local board of
health;
(3) To investigate the causes of infectious,
communicable and other diseases;
(4) To exercise quarantine authority and isolation
authority pursuant to G.S. 130A-145;
(5) To disseminate public health information and to
promote the benefits of good health;
(6) To advise local officials concerning public
health matters;
(7) To enforce the immunization requirements of
Part 2 of Article 6 of this Chapter;
(8) To examine and investigate cases of venereal
disease pursuant to Parts 3 and 4 of Article 6 of this Chapter;
(9) To examine and investigate cases of
tuberculosis pursuant to Part 5 of Article 6 of this Chapter;
(10) To examine, investigate and control rabies
pursuant to Part 6 of Article 6 of this Chapter;
(11) To abate public health nuisances and imminent
hazards pursuant to G.S. 130A-19 and G.S. 130A-20;
(12) To employ and dismiss employees of the local
health department in accordance with Chapter 126 of the General
Statutes;
(13) To enter contracts, in accordance with The
Local Government Finance Act, G.S. Chapter 159, on behalf of the
local health department. Nothing in this paragraph shall be
construed to abrogate the authority of the board of county
commissioners.
(c) Authority conferred upon a local health director may be
exercised only within the county or counties comprising the local
health department. (1957, c. 1357, s. 1; 1973, c. 476, s. 128;
1983, c. 891, s. 2; 1985, c. 175, s. 2; 1999-110, s. 1.)
§130A-42. Personnel records of district health
departments.
Employee personnel records of a district health department
shall have the same protections from disclosure as county
employee personnel records under G.S. 153A-98. For the purposes
of this section, the local health director shall perform the
duties assigned to the county manager pursuant to G.S. 153A-98
and the district board of health shall perform the duties
assigned to the county board of commissioners pursuant to G.S.
153A-98. (1983, c. 891, s. 2.)
Part 1A. Consolidated Human Services Agency.
§ 130A-43. Consolidated human services agency;
board; director.
(a) Except as otherwise provided by this section and
subject to any limitations that may be imposed by the board of
county commissioners under G.S. 153A-77, a consolidated human
services agency created pursuant to G.S. 153A-77 shall have the
responsibility to carry out the duties of a local health
department and the authority to administer the local public
health programs established in this Chapter in the same manner as
a local health department.
(b) In addition to the powers conferred by G.S. 153A-77(d),
a consolidated human services board shall have all the powers and
duties of a local board of health as provided by G.S. 130A-39,
except that the consolidated human services board may not:
(1) Appoint the human services director.
(2) Transmit or present the budget for local health
programs.
(c) In addition to the powers conferred by G.S. 153A-77(e),
a human services director shall have all the powers and duties of
a local health director provided by G.S. 130A-41, except that the
human services director may:
(1) Serve as the executive officer of the
consolidated human services agency only to the extent and in the
manner authorized by the county manager.
(2) Appoint staff of the consolidated human
services agency only upon the approval of the county manager.
(1995 (Reg. Sess., 1996), c. 690, s. 14.)
Part 1B. Public Health Authorities Authorized.
§ 130A-45. Title and purpose.
(a) This Part shall be known and may be cited as the
"Public Health Authorities Act".
(b) The purpose of this Part is to provide an alternative
method for counties to provide public health services. This Part
shall not be regarded as repealing any powers now existing under
any other law, either general, special, or local.
(c) It is the policy of the General Assembly that Public
Health Authorities should have adequate authority to exercise the
powers, rights, duties, functions, privileges, and immunities
conferred upon them by law. (1997-502, s. 1.)
§ 130A-45.1. Membership of the public health
authority board.
(a) A public health authority board shall be the policy-
making, rule-making, and adjudicatory body for a public health
authority and shall be composed of no fewer than seven members
and no more than nine members; except that in an authority
comprising two or more counties, the board shall be composed of
no more than 11 members.
(b) In a single county authority, the county board of
commissioners shall appoint the members of the board; in an
authority comprising two or more counties, the chair of the
county board of commissioners of each county in the authority
shall appoint one county commissioner, or the commissioner's
express designee, to the authority board and these members shall
jointly appoint the other members of the board.
(c) The members of the board shall include:
(1) At least one physician licensed under Chapter
90 of the General Statutes to practice medicine in this State,
and at least one dentist licensed under Article 2 of Chapter 90
of the General Statutes to practice dentistry in this State;
(2) At least one county commissioner or the
commissioner's express designee from each county in the
authority;
(3) At least two licensed or registered
professionals from any of the following professions: optometry,
veterinary science, nursing, pharmacy, engineering, or
accounting;
(4) At least one member from the administrative
staff of a hospital serving the authority service area; and
(5) At least one member from the general public.
(d) Except as provided in this subsection, members of the
board shall serve terms of three years. Two of the original
members shall serve terms of one year, and two of the original
members shall serve terms of two years.
(e) Any member who is a county commissioner serves on the
board in an ex officio capacity.
(f) Whenever a county shall join or withdraw from an
existing public health authority, the board shall be dissolved
and a new board shall be appointed as provided in subsection (b)
of this section.
(g) Vacancies shall be filled within 120 days for any
unexpired portion of a term.
(h) A chair shall be elected annually by a board. The
authority director shall serve as secretary to the board.
(i) A majority of the members shall constitute a quorum.
(j) A member may be removed from office by the board for
any of the following:
(1) Commission of a felony or other crime involving
moral turpitude.
(2) Violation of a State law governing conflict of
interest.
(3) Violation of a written policy adopted by the
county board of commissioners of each county in the authority.
(4) Habitual failure to attend meetings.
(5) Conduct that tends to bring the office into
disrepute.
(6) Failure to maintain qualifications for
appointment required under subsection (c) of this section.
A board member may be removed only after the member has been
given written notice of the basis for removal and has had the
opportunity to respond.
(k) Board members shall receive no compensation for their
services, but they shall be entitled to reimbursement for
subsistence and travel expenses incurred in the discharge of
their duties.
(l) The board shall meet at least quarterly. The chair or
three of the members may call a special meeting. (1997-502, s.
1.)
§ 130A-45.2. Dissolution of a public health
authority.
(a) Whenever the board of commissioners of each county
constituting a public health authority determines that the
authority is not operating in the best health interests of the
authority service area, they may direct that the authority be
dissolved. In addition, whenever a board of commissioners of a
county which is a member of an authority determines that the
authority is not operating in the best health interests of that
county, it may withdraw from the authority. Dissolution of an
authority or withdrawal from the authority by a county shall be
effective only at the end of the fiscal year in which the action
of dissolution or withdrawal transpired.
(b) Notwithstanding the provisions of subsection (a) of
this section, no public health authority shall be dissolved
without prior written notification to the Department.
(c) Any budgetary surplus available to a public health
authority at the time of its dissolution shall be distributed to
those counties comprising the authority on the same pro rata
basis that the counties appropriated and contributed funds to the
authority's budget during the current fiscal year. Distribution
to the counties shall be determined on the basis of an audit of
the financial record of the authority. The public health
authority board shall select a certified public accountant or an
accountant who is subsequently certified by the Local Government
Commission to conduct the audit. The audit shall be performed in
accordance with G.S. 159-34. The same method of distribution of
funds described above shall apply when one or more counties of an
authority withdraw from the authority.
(d) Upon dissolution or withdrawal, all rules adopted by
the board continue in effect until amended or repealed by the new
authority board or boards of health. (1997-502, s. 1.)
§ 130A-45.3. Powers and duties of authority
board.
(a) A public health authority shall have all the powers
necessary or convenient to carry out the purposes of this Part,
including the following powers to:
(1) Protect and promote the public health. The
board shall have the authority to adopt rules necessary for that
purpose.
(2) Construct, equip, operate, and maintain public
health facilities.
(3) Use property owned or controlled by the
authority.
(4) Acquire real or personal property, including
existing public health facilities, by purchase, grant, gift,
devise, lease or, with the permission of the county
commissioners, condemnation.
(5) Establish a fee schedule for services received
from public health facilities and make services available
regardless of ability to pay.
(6) Appoint a public health authority director to
serve at the pleasure of the authority board.
(7) Establish a salary plan which shall set the
salaries for employees of the area authority.
(8) To adopt and enforce a professional
reimbursement policy which may include the following provisions:
(i) require that fees for the provision of services received
directly under the supervision of the public health authority
shall be paid to the authority, (ii) prohibit employees of the
public health authority from providing services on a private
basis which require the use of the resources and facilities of
the public health authority, and (iii) provide that employees may
not accept dual compensation and dual employment unless they have
the written permission of the public health authority director.
(9) Delegate to its agents or employees any powers
or duties as it may deem appropriate.
(10) Employ its own counsel and legal staff.
(11) Adopt, amend, and repeal bylaws for the
conduct of its business.
(12) Enter into contracts for necessary supplies,
equipment, or services for the operation of its business.
(13) Act as an agent for the federal, State, or
local government in connection with the acquisition,
construction, operation, or management of a public health
facility, or any part thereof.
(14) Insure the property or the operations of the
authority against risks as the authority may deem advisable.
(15) Sue and be sued.
(16) Accept donations or money, personal property,
or real estate for the benefit of the authority and to take title
to the same from any person, firm, corporation, or society.
(17) Appoint advisory boards, committees, and
councils composed of qualified and interested residents of the
authority service area to study, interpret, and advise the public
health authority board.
(b) A public health authority shall have the power to
establish and operate health care networks and may contract with
or enter into any arrangement with other public health
authorities or local health departments of this or other states,
federal, or other public agencies, or with any person, private
organization, or nonprofit corporation or association for the
provision of public health services, including managed health
care activities; provided, however, that for the purposes of this
subsection only, a public health authority shall be permitted to
and shall comply with the requirements of Article 67 of Chapter
58 of the General Statutes to the extent that such requirements
apply to the activities undertaken by the public health authority
pursuant to this subsection. The public health authority may pay
for or contribute its share of the cost of any such contract or
arrangement from revenues available for these purposes, including
revenues arising from the provision of public health services.
(c) A public health authority may lease any public health
facility, or part, to a nonprofit association on terms and
conditions consistent with the purposes of this Part. The
authority will determine the length of the lease. No lease
executed under this subsection shall be deemed to convey a
freehold interest.
(d) A public health authority shall neither sell nor convey
any rights of ownership the county has in any public health
facility, including the buildings, land, and equipment associated
with the facility, to any corporation or other business entity
operated for profit, except that nothing herein shall prohibit
the sale of surplus buildings, surplus land, or surplus equipment
by an authority to any corporation or other business entity
operated for profit. For purposes of this subsection, "surplus"
means any building, land, or equipment which is not required for
use in the delivery of public health care services by a public
health facility at the time of the sale or conveyance of
ownership rights.
(e) A public health authority may lease any public health
facility, or part, to any corporation, foreign or domestic,
authorized to do business in North Carolina on terms and
conditions consistent with the purposes of this Part and with
G.S. 160A-272.
(f) A public health authority may exercise any or all of
the powers conferred upon it by this Part, either generally or
with respect to any specific public health facility or
facilities, through or by designated agents, including any
corporation or corporations which are or shall be formed under
the laws of this State.
(g) An authority may contract to insure itself and any of
its board members, agents, or employees against liability for
wrongful death or negligent or intentional damage to person or
property or against absolute liability for damage to person or
property caused by an act or omission of the authority or of any
of its board members, agents, or employees when acting within the
scope of their authority and the course of their employment. The
board shall determine what liabilities and what members, agents,
and employees shall be covered by any insurance purchased
pursuant to this subsection.
Purchase of insurance pursuant to this subsection waives the
authority's governmental immunity, to the extent of insurance
coverage, for any act or omission occurring in the exercise of a
governmental function. Participation in a local government risk
pool pursuant to Article 23 of Chapter 58 of the General Statutes
shall be deemed to be the purchase of insurance for the purposes
of this section. By entering into an insurance contract with the
authority, an insurer waives any defense based upon the
governmental immunity of the authority.
(h) If an authority has waived its governmental immunity
pursuant to subsection (g) of this section, any person, or in the
event of death, their personal representative, sustaining damages
as a result of an act or omission of the authority or any of its
board members, agents, or employees, occurring in the exercise of
a governmental function, may sue the authority for recovery of
damages. To the extent of the coverage of insurance purchased
pursuant to subsection (g) of this section, governmental immunity
may not be a defense to the action. Otherwise, however, the
authority has all defenses available to private litigants in any
action brought pursuant to this section without restriction,
limitation, or other effect, whether the defense arises from
common law or by virtue of a statute.
Despite the purchase of insurance as authorized by
subsection (g) of this section, the liability of an authority for
acts or omissions occurring in the exercise of governmental
functions does not attach unless the plaintiff waives the right
to have all issues of law or fact relating to insurance in the
action determined by a jury. The judge shall hear and determine
these issues without resort to a jury, and the jury shall be
absent during any motion, argument, testimony, or announcement of
findings of fact or conclusions of law relating to these issues
unless the defendant requests a jury trial on them. (1997-502, s.
1.)
§ 130A-45.4. Appointment of a public health
authority director.
(a) A public health authority board, after consulting with
the appropriate county board or boards of commissioners, shall
appoint a public health authority director.
(b) All persons who are appointed to the position of public
health authority director must possess minimum education and
experience requirements for that position, as follows:
(1) A medical doctorate; or
(2) A masters degree in Public Health
Administration, and at least one year of employment experience in
health programs or health services; or
(3) A masters degree in a public health discipline
other than public health administration, and at least three years
of employment experience in health programs or health services;
or
(4) A masters degree in public administration, and
at least two years of experience in health programs or health
services; or
(5) A masters degree in a field related to public
health, and at least three years of experience in health programs
or health services; or
(6) A bachelors degree in public health
administration or public administration and at least three years
of experience in health programs or health services.
(c) Before appointing a person to the position of public
health authority director under subdivision (a)(5) of this
section, the authority board shall forward the application and
other pertinent material