Senate committee substitute makes the following changes to the 2nd edition.

Makes technical changes.

Amends GS 44A-20(d), adding that a lien waiver signed by the contractor prior to a subcontractor's perfecting its lien claim on real property in accordance with GS 44A-11 waives the contractor's right to enforce the contractor's lien claim on real property (previously, a lien waiver signed by the contractor prior to the occurrence of all of the actions specified in  GS 44A-23(a1) and GS 44A-23(b)(5), waives the subcontractor's right).

Amends GS 44A-23(a1), providing that no action of the contractor will be effective to prejudice the rights of a first tier subcontractor without that subcontractor's written consent once the first tier subcontractor has perfected its lien claim on real property in accordance with GS 44A-11 (previously, no action of the contractor will be effective to prejudice the rights of a subcontractor without his or her written consent upon three specified occurrences).

Amends GS 44A-23(a1), deleting GS 44A-23(a1)(1-3).

Amends GS 44A-23(b)(5), providing that no action of the contractor will be effective to prejudice the rights of the second or third tier subcontractor without that subcontractor's written consent once the second or third tier subcontractor has perfected his or her lien claim on real property in accordance with GS 44A-11 (previously, no action of the contractor will be effective to prejudice the rights of the second or third tier subcontractor without his or her written consent, upon the occurrence of three specified occurrences).

Amends GS 58-26-45(b)(2), providing that upon the receipt of the notice of designation by the owner pursuant to GS 44A-11.1, a lien agent will have the duty to receive notices to a lien agent delivered by potential lien claimants pursuant to GS 44A-11.2 (previously, to receive notices to a lien agent delivered by potential lien claimants pursuant to GS 44A-11.2 and copies of notices of claim of lien upon funds delivered by potential lien claimants pursuant to GS 44A-23(a1)(3) or GS 44A-23(b)(5)(c).

 

Amends GS 160A-388 regarding zoning boards of adjustment. Provides that a zoning or unified development ordinance may provide for the appointment and compensation of a board of adjustment.Also provides thatthe ordinance may assign the duties of a board of adjustment to a planning board or governing board in addition to that board's other duties.

Specifies the provisions to be in the ordinance. Provides that the zoning or unified development ordinance may designate the board of adjustment to hear and decide special and conditional use permits, variances, and appeals of decisions by administrative officials responsible for enforcing the ordinance. Defines decision to mean any final and binding order, requirement, or determination. Directs the board of adjustment to follow quasi-judicial procedures in deciding appeals and requests for variances and special and conditional use permits. Provides that the board is to hear all matters upon which it is required to pass under any statute or ordinance that regulates the use of land development.

Designates the persons or entities whoare entitled toreceive notice of hearings conducted under this statute. Requires that the notice be deposited in the mail at least 10 days but not more than 25 days before thehearing date. Also requires the city to prominently post a notice of hearing on the site that is the subject of the hearing or an adjacent streetor highway right-of-way within the same time limits as notice by mail.

Provides that the city or any person with standing under GS 160A-393(d) may appeal a decision to the board of adjustment. Requires that a notice of appealbe filed with the city clerk and that the notice state the grounds for the appeal. Directs the board of adjustment to hear and decide appeals from any decision by an official responsible for enforcing a zoning or unified development ordinance and provides that the board may hear appeals arising out of any other ordinance that regulates land use. Specifies that there is a presumption of constructive notice of a decision, to all persons with standing to appeal, from the date a sign is prominently posted on the property that is the subject of the decision, with thewords "Zoning Decision" or Subdivision Decision" in letters at least six inches high. Requires that the sign remain on the property for at least 10 days. However, posting of signs is not requiredunlessthere is an ordinance provision that requires it.Provides additional criteria regarding the appeal process including transmission of the record, providing notice to parties andwitnesses,and relevant rules regarding timing. Provides that when the appeal is under GS 160A-400.9(e), or any appeal to re-examine the decision of an administrative official, the hearing is to be based on the record below and the scope of review as provided in GS 160A-393(k).

Makes clarifying and conforming changes to language regarding special and conditional use permits. Provides that reasonable and appropriate conditions may be imposed on special and conditional use permits.

Authorizes the board of adjustment togrant a varianceof an ordinance when unnecessary hardships (was, practical difficulties or unnecessary hardships) would result from carrying out the strict letter of the law; however, specifies factors that must be shown before the provisions of the ordinance may be varied.

Provides that 4/5 of the board must concur in granting a variance (was, required 4/5 concurrence to make any decision). Requires a majority vote of the board members to decide any other quasi-judicial matter or to determine an appeal. Provides that vacant positions or members disqualified from voting on a quasi-judicial matter are not to be counted as board members for purposes of calculating a majority (was, supermajority) if there are no qualified alternates to take the place of those members.

Clarifies what constitutes impermissible violations of due process (was, impermissible conflicts).

Further provides that quasi-judicial decisions must be based on competent, material, and substantial evidence in the record and reduced to writing. Specifies content that the written decision must include and the process for notice of the decision. Provides that every quasi-judicial decision is subject to review by the superior court under GS 160A-393. Requires that a petition for review be filed with the clerk of superior court by the later of30 days after the decision is effective or after a written copy of the decision is delivered by mail, electronic mail, or personal delivery.

Provides that any person who lies while under oath during a hearing before the board is guilty of a Class 1 misdemeanor.

Provides that the board chair or anyone acting as chair in the chair's absence may subpoena witnesses and compel the production of evidence. Provides criteria under which persons with standing under GS 160A-393(d) may request that a subpoena be issued to compel witnesses or evidence.

Repeals GS 153A-345 pertaining to board of adjustment in counties.

Enacts new GS 153A-345.1 to provide that the provisions of GS 160A-388, regarding boards of adjustment, apply to counties. Provides that "city council" as used in GS 160A-388 is deemed to refer to the "board of county commissioners" and that the terms "city" or "municipality" refer to the "county." Includes guidelines regarding counties in which a board of county commissioners does not zone the entire territorial jurisdiction of the county.

Also makes conforming changes to GS 160A-381(c) and GS 153A-340(c1).

Makes additional conforming and clarifying changes.

Effective October 1, 2013, and applies to all board of adjustment actions taken on or after that date.

Amends GS Chapter 7A by adding a new section, GS 7A-38.3F (Prelitigation of homeowners association disputes), providing for voluntary mediation prior to the filing of a civil action for a dispute that has arisen under the NC Condominium Act, the NC Planned Community Act, or the association's declaration, bylaws, rules, or regulations. Disputes related only to failure to pay an assesment or fines are not eligible for mediation under this new section.

Provides definitions that apply in proposed GS 7A-38.3F, including definitions for association, dispute, executive board, mediator, member, and party or parties.

Requires either an association or member to contact the NC Dispute Resolution Commission (Commission) to initiate mediation. The Commission will refer a local community mediation center (center) or will contact a center directly.  After receiving identifying and contact information, the center will contact the other party to notify him or her of the request to mediate. If the parties agree to mediate, the center will then attempt to schedule mediation at a time convenient for both parties. The center will issue written notifications of the date, time, and location of mediation as well as a copy of this section and a brochure explaining the mediation process. The center will appoint a qualified employee to conduct the mediation no later than 25 days after the center received the request from either the association or member.

Requires the following procedures to apply to mediation under this section:

(1) Attendance: the mediator will decide who may attend the mediation. A party's attorney may attend but is not required to.

(2) All parties are expected to attend mediation. However, parties that reside more than 50 miles from the center can participate by telephone or other electronic means, if the request to do so is received by the center at least five days before the mediation. Parties that reside within 50 miles of the center may participate in this manner if they are deemed, by the center, to have a compelling reason to do so.

(3) If no final agreement is reached, due to the need to seek outside approval from the association members, the mediator may recess the mediation for such review or vote as needed for approval.  The mediator must reconvene no later than 15 days after the recess is taken. No further notice of the reconvening is necessary if the date, time, and, place were agreed to at the mediation prior to recess.

(4) If a final agreement is reached, the mediator will put the agreement in writing and have the parties sign it and issue copies to both parties. A signed agreement is binding and enforceable.

Provides that either party to a dispute can decline mediation. The declining party must inform the center and the other party if mediation has been initiated but not yet scheduled or if it has been scheduled but not yet held. No costs are assessed if a party declines before the initial mediation meeting.

Requires that the costs of mediation will be shared equally by both parties. The fee for mediation is set at $100 per hour, not to exceed $600, due at the end of each mediation meeting. The center cannot charge any other fees.

After concluding mediation, the mediaor must prepare a certification stating the date the mediation concluded and the general results of the mediation.  If a cause of action is later filed involving the dispute mediated by both parties, either party can file this certification letter with the clerk of court, fulfilling any need under the law to mediate. The certificate or any other evidence of statements made during mediation are not subject to discovery and are inadmissible in any proceeding in the action from which the mediation arises.

Time periods relating to the filing of a claim or taking other action with respect to the dispute, including any statute of limitations, are tolled upon the initiation of mediation as provided in this section and last until 30 days after the date on which mediation is concluded, per the date on the mediator's certificate.

Requires associations to notify, in writing, its members of the ability to mediate to resolve disputes, as that term is defined in this section. If the association has a website, this notice must be published on that website. If not, the association will publish the notice at the same time as publication of contact information for all officers and board members, as provided in GS 47C-103 and GS 47F-3-103.

Effective July 1, 2013, applying to all homeowner association disputes not specifically exempted by this act that occur on or after that date.

Amends GS 62-15 requiring the public staff (staff) of the Utilities Commission (Commission) to act on behalf of the using and consuming public and not on the behalf of any other person, group, or entity. Prohibits the public staff from giving any advice, guidance, or opinion in matters before the Commission that is not in the using and consuming public's interest.

Amends GS 136-260(a) to clarify that the North Carolina State Ports Authority is administered under the direction and supervision of the Secretary of Transportation, but exercises all of its statutory powers independently of the Secretary.

Provides that the intent of the act is to clarify the Type II transfer of the Authority from the Department of Commerce to the Department of Transportation. Prohibits the Secretary of Transportation from assuming the statutory authorities and duties provided to the Board of the State Ports Authority.

Section 1

Amends GS 90-648, definitions section of the Respiratory Care Practice Act, adding "the therapeutic effectiveness of an apparatus used in respiratory care treatment for an individual patient" to the definition for practice of respiratory care. Clarifies that the term also means any act by which an individual holds himself or herself out to the public or represents that the individual is authorized to practice respiratory care in this state.

Amends the definition of support activities clarifying that the term does not include evaluation or assessment of the therapeutic effectiveness of any respiratory treatment for an individual patient. Makes technical changes.

Section 2

Amends GS 90-652 (Powers and duties of the Board), eliminating the requirement that applicants must submit a form consenting to a criminal record check and the use of their fingerprints (GS 90-652(1)). Expands the power of the board to include the investigation of activities of persons not licensed under this Article whom the NC Respiratory Care Board (Board) believes to be engaged in the practice of respiratory care, as well as all other things necessary and proper to enforce GS 90-652.

Creates new GS 90-652(5a), authorizing the board to designate one or more employees to issue and serve subpoenas and other papers on its behalf. Service is permitted in accordance with any other methods of service allowed by law.

Makes technical changes.

Section 3

Amends GS 90-653 (Licensure requirements; examination), to require that a form signed by the applicant consenting to a criminal record check and the use of fingerprints and other identifying information must be sent in with a completed application in order to meet licensure requirements.

Requires that applicants for a respiratory therapist (RT) license must complete the requirements of an associate degree respiratory care program that is currently approved by the Commission on Accreditation for Respiratory Care or its successor and the program must submit a verified transcript directly to the Board. Also requires applicants to submit to the Board written evidence, verified by oath, that the applicant has met the minimal requirements for Basic Cardiac Life Support. Applicants must also submit written evidence they have successfully passed the Certified Respiratory Therapist exam, or its successor, given by the National Board for Respiratory Care Inc.

The license allows the individual to practice under the direct supervision of a respiratory care practitioner that is also licensed. The Board will state the terms and conditions of use for the respiratory therapist license.

Amends GS 90-653(4), requirements for a respiratory care practitioner (RCP) license, to require the applicant to: (1) Demonstrate that the applicant has successfully completed the minimal requirements of a baccalaureate degree respiratory care education program approved by the Board or an equivalent program approved by the Board. Verification must be by transcript submitted directly to the Board. (2) Submit written evidence to the Board, verified by oath, that the applicant successfully completed the requirements for Advanced Cardiac Life Support, Pediatric Advanced Life Support, or Neonatal Resuscitation Program. (3) Submit written evidence, verified by oath, that the applicant has passed the Registered Respiratory Therapist examination, or its successor, given by the National Board for Respiratory Care Inc.

Makes technical and conforming changes.

Effective January 1, 2015.

Section 4

Repeals GS 90-654 (Temporary license) and GS 90-656 (Provisional license).

Section 5

Amends GS 90-659 (Suspension, revocation, and refusal to renew a license), giving the Board authority to impose probationary conditions on a license, which can include placing limitations on the practice of respiratory care, reprimand, assessing monetary redress, or requiring satisfactory completion of treatment or educational programs.

Expands the instances in which the Board has authority to impose restrictions concerning (1) conduct that employs fraud, deceit, or misrepresentation to obtain money or anything of value; (2) a licensee or applicant that has developed a physical or mental disability that renders the licensee or applicant unfit to practice respiratory care with reasonable skill and competence and in a manner not harmful to the public; (3) a licensee or applicant that has failed to respond within a reasonable period of time and in a reasonable manner, as determined by the Board, to inquiries from the Board concerning any matter affecting a license to practice respiratory care; (4) a licensee or applicant that has developed an impairment caused by the licensee or applicant's use of alcohol, drugs, or controlled substances, which interferes with the ability of the licensee or applicant to practice respiratory care with reasonable skill, competence, and in a manner not harmful to the public; (5) a licensee or applicant that has practiced respiratory care outside the boundaries of demonstrated competence or the limitations of education, training, or supervised experience; (6) a licensee or applicant that has had a license for the practice of respiratory care, in any other jurisdiction, suspended or revoked or has been disciplined by any licensing or certification board in any other jurisdiction for conduct that would subject the licensee or applicant to disciplinary action under this Article; and (7) a licensee or applicant that is a hazard to the public health by reason of having a serious communicable disease.

Gives the Board authority to deny, refuse, refuse to renew, suspend, or revoke a license without any type of hearing if it receives verified information that an applicant has not met the requirements of GS 90-653(a).

If, after notice is issued, a licensee or applicant fails to appear for a scheduled hearing, the Board may hear the evidence of those present and dispose of the matter on the basis of the evidence present.

Provides that the Board and its members or staff are not civilly or criminally liable for exercising, in good faith, the powers and duties authorized by law and given to the Board.

Provides protection from liability for persons, partnerships, firms, associations, authorities or other entities acting in good faith for reporting, assessing, monitoring, or providing expert medical opinion to the Board in regards to violations of this section and requirements. Liability is also extended for initiating or conducting proceedings against a licensee or applicant, if a complaint is filed or action taken is in good faith.

Allows a licensee to, with consent of the Board, voluntarily relinquish a license. However, the Board may delay or refuse to grant consent in order to investigate pending complaints or allegations against the licensee.

Gives Board authority to adopt rules it deems are reasonable and appropriate to implement the provisions of GS 90-659.

Section 6

Repeals GS 90-660(b)(6), concerning fees for provisional or temporary licenses.

Section 7

Makes technical and clarifying changes.

Section 8

Makes technical and clarifying changes.

Amends GS 90-664(3), exempting respiratory care practitioners that serve in federal agencies, so long as the practitioner limits services to those directly related to work with the employing federal agency, from the requirements of the Respiratory Care Practice Act.

Adds new subsection GS 90-664(5), also exempting persons licensed as a respiratory care practitioner in another jurisdiction while providing respiratory care in a declared emergency in this state, while a member of a organ harvesting team, or on board an ambulance as part of an ambulance transport team into or out of this state.

Section 9

Any person licensed as a respiratory therapist under GS 90, Article 38 (Respiratory Care Practice Act), who has passed the Certified Respiratory Therapist  examination on the effective date complies with the requirements of GS 90-653(a)(3). Any person licensed as a respiratory care practitioner under GS 90, Article 38, who has passed the Registered Respiratory Therapist examination on the effective date of this act complies with the requirements of GS 90-653(a)(4), as described in Section 3 of this act.

Section 10

Effective when the act becomes law unless otherwise indicated.

Amends GS 115C-378, GS 115C-238.66, and GS 116-235 to increase the compulsory school attendance age from 16 to 17 years old (unless the child graduates from high school). Makes conforming changes to GS 7B-1501 and GS 143B-805 concerning undisciplined juveniles. Effective July 1, 2013.