GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 847

Short Title:  Monument Contractors Act.	(Public)

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Sponsors: Representatives Mercer and Barbee.

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Referred to:  State Government.

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April 12, 1995

A BILL TO BE ENTITLED
AN ACT TO ESTABLISH LICENSING OF MONUMENT CONTRACTORS.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 87 of the General Statutes is amended by adding a new Article to read:
"ARTICLE 9.
"Monument Contractors.
"§ 87-120.  Short title.
This Article shall be known and may be cited as the North Carolina Monument Contractors Act.
"§ 87-121.  Policy and purpose.
The purpose of this Article is to protect the health, welfare, and safety of the public through the regulation of monument contractors in the State of North Carolina; to prevent the sale of inferior products to the public; to prevent the improper installation of monuments in private and public areas; and to protect the public consumer from being defrauded by illegitimate dealers of related products.
"§ 87-122.  Definitions.
(1)	'Board' means the North Carolina Board of Monument Contractors Examiners.
(2)	'Cemetery work' means work performed on monuments erected or placed in cemeteries, such as leveling, cleaning, and installing monuments.
(3)	'Manufacture' means sawing, sandblasting, etching, polishing, designing, carving, and producing monuments, utilizing equipment machinery and mechanical lifting devices.
(4)	'Monument' means any type of granite, marble, bronze, or other type of product placed or erected to designate where a body is interred or to preserve and perpetuate the memory and name of any person.
(5)	'Monument contractor' means any person, firm, corporation, or partnership that manufactures, sells, erects, installs, repairs, cleans, or moves monuments.
"§ 87-123.  Board of Examiners created; appointment; term of office.
(a)	Creation. –  The North Carolina Board of Monument Contractors Examiners is created.
(b)	Membership. – The Board shall consist of seven members as follows:
(1)	Two members appointed by the General Assembly, upon the recommendation of the President Pro Tempore of the Senate, one of whom is a member of the North Carolina Chapter of the Monument Builders of the Carolinas and is involved in the basic training and education of monument contractors, and one of whom is knowledgeable of the industry.  The member of the private industry shall be appointed from a list of three persons recommended by the Board of Directors of the Monument Builders of the Carolinas.
(2)	Two members appointed by the General Assembly, upon the recommendation of the Speaker of the House of Representatives, one of whom is in the private industry and is involved in basic training and education of monument contractors, and one of whom is knowledgeable of the industry.  The member of the private industry shall be appointed from a list of three persons recommended by the membership of the North Carolina Chapter of the Monument Builders of the Carolinas.
(3)	Three members appointed by the Governor, two of whom shall be monument contractors who have at least five years' experience in the construction of monuments that are erected, installed, or placed on public property and one of whom is a member of the general public.
(c)	Terms. – Members shall serve three-year terms, except initial appointments shall be for terms as follows:
(1)	The General Assembly, upon recommendation of the President Pro Tempore of the Senate, shall initially appoint one member for a term of two years and one member for a term of one year.
(2)	The General Assembly, upon recommendation of the Speaker of the House of Representatives, shall initially appoint one member for a term of three years and one member for a term of two years.
(3)	The Governor shall initially appoint three members for terms of four years.
Initial terms shall commence on August 1, 1995.  Members shall serve until a successor is appointed and may serve more than one consecutive term.
(d)	Qualifications. – Each member shall be a resident of North Carolina. The monument contractor members shall hold current licences and must remain in active practice and in good standing with the Board licensees during their terms.  The initial monument contractor members shall, upon their appointment and qualification, immediately become licensed by complying with the provisions of this Article.
(e)	Vacancies. – A vacancy shall be filled in the same manner as the original appointment except that all unexpired terms on the Board shall be filled in accordance with G.S. 120-122 and shall be filled within 45 days after the vacancy occurs.  Appointees to fill vacancies shall serve the remainder of the unexpired term and until their successors have been duly appointed and qualified.
(f)	Removal. – The Board may remove any of its members for neglect of duty, misconduct, misfeasance, incompetence, or unprofessional conduct.  A member subject to disciplinary proceedings as a licensee shall be disqualified from Board business until the charges are resolved.
(g)	Compensation. – Each member of the Board shall receive per diem compensation and reimbursement for travel and subsistence as provided in G.S. 93B-5.  All salaries, compensation, and expenses incurred or allowed for the purpose of carrying out the purposes of this Article shall be paid by the Board exclusively out of the fees received by the Board as authorized by this Article, or funds received from other sources.  In no case shall any salary, expense, or other obligation of the Board be charged against the State treasury.
(h)	Officers. – The officers of the Board shall be a chair, who shall be a licensed monument contractor, a vice-chair, a secretary-treasurer, and other officers deemed necessary by the Board to carry out the purposes of this Article.  All officers shall be elected annually by the Board for one-year terms and shall serve until their successors are elected and qualified.  The secretary-treasurer shall give bond approved by the Board in an amount determined by the Board.
(i)	Immunity from Suit. – Individual Board members shall be immune from civil liability arising from activities performed within the scope of their official duties.
(j)	Meetings. – Within 30 days after the appointment of the initial Board, the Board shall hold a meeting to elect the officers.  The Board shall hold at least four meetings each year, one each quarter, to conduct business and to review the standards and rules for improving the business and practice of monument contracting.  The Board shall adopt rules governing the calling, holding, and conducting of regular and special meetings.  Special meetings may be held at times and at places as the bylaws or rules provide, or as may be required in carrying out the provisions of this Article.  A quorum of the Board shall consist of not less than five members.
"§ 87-124.  Powers and duties of the Board.
(a)	The Board shall have the following general powers and duties:
(1)	Administer this Article.
(2)	Issue interpretations of this Article.
(3)	Adopt, amend, or repeal rules as may be necessary to carry out the provisions of this Article in accordance with Chapter 150B of the General Statutes.
(4)	Employ and fix the compensation of personnel that the Board determines is necessary to carry into effect the provisions of this Article and incur other expenses necessary to effectuate this Article.
(5)	Examine, determine qualifications and fitness, and renew the license of duly qualified applicants for licensure or relicensure.  In determining the qualification of applicants, the Board shall consider the technical and practical knowledge of the applicant concerning the analysis of specifications, estimation costs, fundamentals of layout and design, rudiments of installation, and related subjects relevant to the industry.
(6)	Issue, renew, deny, suspend, or revoke licenses and carry out any of the disciplinary actions authorized by this Article.
(7)	Conduct investigations for the purpose of determining whether violations of this Article or grounds for disciplining licensees exist.
(8)	Maintain a record of all proceedings and make available to licensees and other concerned parties an annual report of all Board action.
(9)	Maintain a register of all applicants for examination showing the date of each application, the name, the age, and other qualifications, and place of business and residence of each applicant.
(10)	In accordance with G.S. 87-130, set fees for licensure, license renewal, examination, reexamination, and other services deemed necessary to carry out the purposes of this Article.
(11)	Adopt a seal containing the name of the Board for use on all certificates, licenses, and official reports issued by it.
(12)	Develop standards and adopt rules for the improvement of monument contracting in the State.
(b)	The powers and duties enumerated above are granted for the purpose of enabling the Board to protect the public health, welfare, and safety against unqualified or incompetent monument contractors and shall be liberally construed to accomplish this objective.
(c)	On or before the first day of March of each year the Board shall submit to the Governor and to the General Assembly a report of its activities for the preceding year and file with the Secretary of State a copy of the report with a statement of receipts and expenditures of the Board attested by the chair and secretary-treasurer.
"§ 87-125.  License required; exemptions.
(a)	On or after January 1, 1996, no person, firm, corporation or partnership may manufacture, sell, erect, install, repair, inscribe, move, or remove a monument without first having been licensed under this Article.
(b)	The provisions of this Article do not apply to:
(1)	Funeral homes when performing cemetery work required for interment, including the removal of small stones to dig a grave.
(2)	Individuals who own memorials and personally clean and fill around their memorials.
(3)	Cemetery caretakers whose jobs require filling in around memorials, cleaning, and normal care of cemeteries.
"§ 87-126.  License classifications.
A monument contractors license shall be issued in one of the following classifications:
(1)	Class A: a license to operate as a sales agent of monuments in public and private cemeteries under the supervision of a monument contractor with a class C license.
(2)	Class B: a license to operate a cemetery or retail sales office or to install monuments within that cemetery.  A class B license requires a Federal Employer's Identification number, bond, workers' compensation, and general liability insurance.
(3)	Class C: a license to manufacture, sell, erect, install monuments, or perform cemetery work and utilize heavy industrial equipment pertinent to the industry.  To obtain a class C license, an applicant must meet the requirements of G.S. 87-127.  A class C licensee shall maintain manufacturing facilities, a sales office, or a display yard or showroom, and may operate lifting devices, operational crane trucks, or other devices used to erect or install memorials.
"§ 87-127.  Qualifications for license.
(a)	An applicant for a class C license shall submit an application on a form approved by the Board and demonstrate proof of good moral character and proof of the following:
(1)	That the applicant has successfully completed the training required by the Board.
(2)	That the applicant has a Federal Employer's Identification number.
(3)	That there are no tax liens filed against the applicant by the Internal Revenue Service or the North Carolina Department of Revenue.
(4)	That the applicant has obtained a bonding ability statement completed by a bonding company licensed to do business in North Carolina, verifying the applicant's ability to furnish performance bonds for monument contracting projects having a value determined by the Board.  In lieu of furnishing the bonding ability statement, the applicant may submit for evaluation and specific approval of the Board other information certifying the adequacy of the applicant's financial ability to engage in projects of the license classification for which the applicant has applied.  The bonding ability statement or other financial information must be submitted in the same name as the license to be issued.  If the firm for which a license application is filed is owned by a sole proprietor, the bonding ability statement or other financial information may be furnished in either the firm name or the name of the proprietor.  However, if the application is submitted in the name of a sole proprietor, the applicant shall submit information verifying that the person in whose name the application is made is in fact the sole proprietor of the firm.
(b)	An applicant who applies to the Board for licensure on or before January 1, 1996, may be licensed without examination if the applicant provides evidence satisfactory to the Board that the applicant has operated as a monument contractor for a period of three years prior to application and meets the requirements of subsection (a) of this section.
(c)	A license shall indicate the names and classifications of all listed qualified individuals employed by the applicant.  A license shall be cancelled if at any time no listed qualified individual is regularly employed by the applicant; provided that work begun prior to cancellation may be completed under conditions established by the Board, and no work for which a license is required under this Article may be bid for, contracted for, or initiated subsequent to the cancellation until the license is reinstated by the Board.
(d)	The Board shall issue a license to all applicants who pass the examination, pay the required fee, and qualify under this Article.  Each application for examination shall be accompanied by a check, money order, or other certified funds in the amount of the annual examination fee required by G.S. 87-130.  Examinations shall be given at least twice a year.
(e)	All licensees shall post the current license in the licensees' business locations, and shall indicate the license number on all proposals, contracts, and work orders.
(f)	A new license to replace a license that is lost or destroyed may be issued pursuant to rules adopted by the Board.
"§ 87-128.  Reexamination.
An applicant who fails to pass the first licensure examination may take subsequent examinations in accordance with rules adopted by the Board and shall be required to pay a new examination fee.
"§ 87-129.  License renewal.
Every license issued under this Article shall be renewed during the month of January.  On or before the date the current license expires, every individual who wishes to continue practice shall apply for a license renewal and submit the required fee. It shall be the duty of the secretary-treasurer to mail to each licensee notice of the amount of fee required for renewal of license at least 60 days prior to the expiration of the license.  In the event of failure on the part of any licensee to make a timely application for renewal of license and pay the required fee, the Board shall increase the license fee by ten percent (10%) for each month or fraction of a month that payment is delayed; provided that the penalty for nonpayment shall not exceed the amount of the annual fee.  Licenses that are not renewed shall automatically lapse. The Board shall require reexamination upon failure of a licensee to renew within one year after expiration.  The Board may adopt rules requiring attendance at programs or continuing education as a condition of license renewal.
"§ 87-130.  Fees.
(a)	The schedule of fees shall not exceed the following:
(1)	Each application for examination (including
	the cost of examination)	$25.00
(2)	Each application for reexamination (including
	the cost of examination)	50.00
(3)	Issue, renew a class A license	100.00
(4)	Issue, renew a class B license	200.00
(5)	Issue, renew a class C license	300.00
(6)	Reasonable charges for duplication
	services and material.
(b)	In the event the Board refuses to license an applicant, the license fee is refundable but the examination fee is not refundable. Each application for examination shall be accompanied by a check, money order, or other certified funds in the amount of the annual examination fee required by this Article.  All license fees shall be paid in advance to the secretary-treasurer of the Board and shall be held in a fund for the use of the Board.
"§ 87-131.  Corporations, partnerships, and persons doing business under a trade name.
(a)	A class C license may be issued in the name of a corporation if one or more officers or directors are active and qualified monument contractors and execute business in accordance with this Article.
(b)	A class B license may be issued in the name of a corporation if one or more officers or directors are active and qualified monument contractors and execute business in accordance with this Article.
(c)	A class A license may be issued in the name of an individual if the individual is a trained and qualified monument contractor and executes business under the license of a class C licensee, and the individual executes contracts in the trade name.
(d)	Any person, firm, corporation, or partnership licensed in accordance with the provisions of this Article shall comply with the provisions of this Article and shall supervise contracts of sale to completion.
"§ 87-132.  Disciplinary authority of the Board; administrative proceedings.
(a)	Grounds for disciplinary action shall include the following:
(1)	Giving false or forged information or withholding material information from the Board in procuring or attempting to procure a license under this Article.
(2)	Having been convicted of or pled guilty or no contest to a crime that indicates that the person is unfit or incompetent to contract for monuments or that indicates that the person has deceived or defrauded the public.
(3)	Having pled guilty or no contest to or having been found guilty of an offense under State or federal narcotic or controlled substance laws.
(4)	Engaging in professional conduct that endangers the public health.
(5)	Being unfit or incompetent to perform as a monument contractor by reason of deliberate acts or omissions.
(6)	Willfully violating any provision of this Article or rules adopted by the Board.
In accordance with the provisions of Chapter 150B of the General Statutes, the Board may require remedial education, issue a letter of reprimand, restrict, revoke, or suspend any license or deny any application for licensure if the Board determines that the applicant or licensee has committed any of the above acts or is no longer qualified.  The Board may not revoke or suspend a license for negligence or breach of contract, including failure to pay a supplier for materials.
(b)	The Board may reinstate a revoked license or remove licensure restrictions when it finds that the reasons for revocation or restriction no longer exist and a majority of the Board votes in favor of the reissuance of the license. A person whose application is denied, suspended, or revoked is entitled to a hearing before the Board if the person submits a written request to the Board.  Proceedings for denial, revocation, or suspension of a license shall be conducted consistent with Chapter 150B of the General Statutes.
"§ 87-133.  Enjoining illegal practices.
If the Board finds that a person is violating any of the provisions in this Article, it may apply in its own name to the superior court for a temporary or permanent restraining order or injunction to prevent the person from continuing illegal practices.  The court is empowered to grant injunctions regardless of whether criminal prosecution or other action has been or may be instituted as a result of a violation.  All actions by the Board shall be governed by the Rules of Civil Procedure and Article 37 of Chapter 1 of the General Statutes.
The venue for actions brought under this Article shall be the Superior Court of Wake County.
"§ 87-134.  Violations; penalties.
A person who violates any provision of this Article is guilty of a Class 1 misdemeanor, including engaging in or offering to engage in the business of a monument contractor without a license, with an expired, suspended or revoked license, or with another person's license.  Each act constitutes a distinct and separate offense.
"§ 87-135.  Reports; immunity from suit.
A person who has reasonable cause to suspect misconduct or incapacity of a licensee, or who has reasonable cause to suspect that a person is in violation of this Article, shall report the relevant facts to the Board.  Upon receipt of a charge, or upon its own initiative, the Board may give notice of an administrative hearing or may, after diligent investigation, dismiss unfounded charges.  A person making a report pursuant to this section shall be immune from any criminal prosecution or civil liability resulting therefrom.  The Board shall establish and maintain a system for keeping detailed records of complaints against licensees.
"§ 87-136.  Audit.
The State Auditor may perform audits of the North Carolina Board of Monument Contractors Examiners pursuant to Article 5A of Chapter 147 of the General Statutes."
Sec. 2. This act is effective upon ratification.