DACS ENFORCEMENT AUTHORITY/BEDDING.

View NCGA Bill Details2015-2016 Session
House Bill 993 (Public) Filed Wednesday, April 27, 2016
AN ACT TO PROVIDE ENFORCEMENT AUTHORITY ASSOCIATED WITH THE PROGRAM GOVERNING BEDDING IMPROPERLY MADE, SANITIZED, OR TAGGED, AS RECOMMENDED BY THE AGRICULTURE AND FORESTRY AWARENESS STUDY COMMISSION.
Intro. by Brody, Dixon, Langdon, Steinburg.

Status: Ref to the Com on Agriculture, if favorable, Judiciary II, if favorable, Appropriations (House Action) (Apr 28 2016)

SOG comments (1):

Identical bill

Identical to S 770, filed 4/27/16.

H 993

Bill Summaries:

  • Summary date: Apr 27 2016 - More information

    Enacts five new sections to Article 4 of GS Chapter 106 to provide provisions for the enforcement by the Department of Agriculture and Consumer Services (DACS) of bedding laws governing improperly made, sanitized, or tagged bedding.

    Enacts new GS 106-65.105A as follows. Allows an authorized agent of DACS (agent) to tag an item that has been detained or embargoed for violation of Article 4 if the agent finds or has probable cause to believe the bedding is unsanitary, mislabeled, unsafe for its intended use, a danger to the public, or is otherwise in violation of Article 4. Establishes that it is a violation of Article 4 to alter a tag, or to remove or dispose of a detained or embargoed item by sale or otherwise, without permission, and that the tag or marking must include a warning that it is a violation to remove or dispose of a detained or embargoed item without permission.  Authorizes an agent to petition a judge of the district or superior court in whose jurisdiction the item is detained or embargoed for an order of condemnation of the item.  Directs the agent to remove the tag or marking is it is found that the item detained or embargoed is not in violation of Article 4. Directs that the item detained or embargoed must either (1) be destroyed at the expense of the claimant and under the supervision of the agent, after entry of the decree, if the item is found to be in violation of Article 4 or (2) if the item is found to be in violation of Article 4 and the violation can be corrected by proper labeling or processing, the court can, after entry of the decree and a conditioned bond is executed, order that the item be delivered to the item's claimant for that correction under the supervision of an agent, where any bond paid must be returned to the claimant by representation to the court by DACS that the item is no longer in violation of Article 4. Directs that all court costs and fees, storage, and other proper expenses are borne by the claimant of the item or the claimant's agent.  Directs that the expense of DACS's supervision be paid by the claimant.

    Enacts GS 106-65.105B to authorize the Commissioner of DACS (Commissioner) to apply to the superior court for, and provides that the superior court will have jurisdiction upon hearing and for cause shown to grant, a temporary or permanent injunction restraining any person from violating any provision of Article 4 or any rule promulgated under Article 4, whether or not there exists an adequate remedy of law.

    Enacts GS 106-65.105C as follows. Authorizes the Commission to access a civil penalty not to exceed $2,500 per violation against any person, firm or corporation that violates or directly causes a violation of any provision of Article 4, or rule promulgated under Article 4, or order of the Commissioner.  Allows the Commissioner to consider any continued or repeated violation after written notice to constitute separate violations subject to separate penalties.  Directs the Commissioner to consider the degree and extent of harm caused or potentially caused by the violation in determining the amount of the penalty. Requires the Commissioner to give the person written notice of the violation and a reasonable period of time to correct the violation before assessing a civil penalty, unless the Commissioner determines the violation has the potential to cause future physical injury or illness. Allows the Commissioner to consider the training and management practices implemented by the person, firm, or corporation for the purpose of complying with Article 4 as a mitigating factor when determining the amount of the civil penalty.  Requires the Commissioner to remit the clear proceeds of the civil penalties assessed under GS 106-65.105C to the Civil Penalty and Forfeiture Fund pursuant to GS 115C-457.2.

    Enacts new GS 106-65.105D as follows. Establishes that any person, firm, or corporation that violates Article 4, or any rules, regulations, or standards promulgated under Article 4, will be guilty of a Class 2 misdemeanor. Establishes that any person, firm, or corporation that provides the Commission or a duly authorized agent of the Commissioner with false or misleading information in relation to a license application or renewal, inspection, or investigation authorized by Article 4 will be guilty of a Class 2 misdemeanor. Establishes that any person, firm, or corporation that alters or removes a tag indicating that an item has been detained or embargoed under GS 106-65.105A(a) without first receiving permission from the court or a duly authorized agent under Article 4 will be guilty of a Class 2 misdemeanor. Establishes that any person, firm, or corporation that removes or disposes of any item detained or embargoed under GS 106-65.105A(a) without first receiving permission from the court or a duly authorized agent under Article 4 will be guilty of a Class 2 misdemeanor. Establishes that any person who willfully assaults, resists, opposes, impedes, intimidates, or interferes with any person while engaged in or on account of the performance of the person's official duties under Article 4 will be guilty of a Class 2 misdemeanor, or if any person uses a deadly weapon in the commission of such acts will be guilty of a Class 1 misdemeanor. Establishes that if any person continues to violate or further violates any provision of Article 4 after written notice from the Commissioner, the court may determine that each day during which the violation continued or is repeated constitutes a separate violation.

    Enacts GS 106-65.105E to clarify that nothing in Article 4 is to be construed to require the Commissioner to initiate, or attempt to initiate, any criminal or administrative proceeding under Article 4 for minor violations of Article 4 whenever the Commissioner believes that the public interest will be adequately served by a suitable written notice or warning.

    Effective December 1, 2016, and applies to offenses committed on or after that date.

     


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