07 NCAC 13C .0315          NOTICES: RIGHT TO HEARING: HEARING PROCEDURES: APPEAL

(a)  Pier permit revocations and denials of applications for structural permits create opportunities for contested case hearings under G.S. 150B‑23.  Contested case hearings, including petitions for hearings, are governed by G.S. 150B, Article 3, and rules of the Office of Administrative Hearings at 26 NCAC 3.

(b)  The power of the Department to give notice of permit revocation or structural permit denial under this Rule is vested in the Chief of Operations of the Division of Parks and Recreation.  Before revoking any pier permit under these rules, the Department shall five notice of its intent to revoke to the permit holder.  Upon the denial of any application for a structural permit under these rules, the Department shall give notice of its action to the applicant.  The notice required by this Paragraph shall be in writing, and shall be served either personally, or by certified mail with return receipt requested, or in the manner provided at G.S. 1A‑1, Rule 4 (j1).

(c)  The notice required by Paragraph (b) of this Rule shall contain the following:

(1)           facts:

(A)          in the case of a permit revocation, the facts relied upon by the Department to support its intended revocation; and

(B)          in the case of a structural permit denial, the facts relied upon as the basis for the denial.

(2)           rules:  the rule or rules in 07 NCAC 13 under which the Department acts or intends to act;

(3)           corrective action:  a statement of the corrective action, if any action is possible, to bring the permit holder, or applicant's application, into compliance with the rules at Paragraph (c)(2) of this Rule.  In the case of a permit revocation for failure to pay a fee required under these rules in the time provided, late payment is not corrective action;

(4)           final date:  the date on which the revocation or denial will become final if the permit holder or applicant does not request a hearing as provided in this Rule.  The final date shall be no sooner than the 61st day after service of notice on the permit holder or applicant;

(5)           right to a hearing:  a statement that the permit holder or applicant has a right to a hearing, if the hearing request is made:

(A)          in the form prescribed by G.S. 150B‑23(a);

(B)          accompanied by a certificate of service on the Department showing service has been made as follows:

Joseph E. Slate Jr., Registered Agent

Room 1225, 12th Floor, Archdale Building

512 North Salisbury Street

P. O. Box 27687

Raleigh, North Carolina  27611

(C)          in a timely manner, either by postmarking or hand‑delivery no later than the 60th day following service of the Department's notice under Paragraphs (b) and (c) of this Rule, to the following address:

Office of Administrative Hearings

424 North Blount Street

P. O. Drawer 11666

Raleigh, North Carolina  27604

(6)           failure to exhaust remedies:  a statement that the failure to request a hearing in the form, manner, and time required by this Rule constitutes a failure to exhaust all administrative remedies made available under this Rule, and that this failure will preclude judicial review under G.S. 150B of any denial or revocation by the Department.

(d)  The final agency decision power of the Department under G.S. 150B‑36 on a recommended decision or order of an administrative law judge made under G.S. 150B‑34 shall be made by the Director of the Division of Parks and Recreation.

(e)  The failure of the pier permit holder or a structural pier permit applicant to request a hearing in the form, manner, and time required required by Paragraph (c) of this Rule constitutes a failure to exhaust all administrative remedies made available under this Rule.  In a case of a failure of a permit holder to request a hearing in the form, manner, and time required by Paragraph (c) of this Rule, the director will enter an order to revoke the permit.  No none who fails to exhaust this administrative remedy is entitled to judicial review of a permit revocation or denial under G.S. 150B.

 

History Note:        Authority G.S. 143B-135.16; 150B‑23;

Eff. February 1, 1976;

Amended Eff. October 1, 1988; April 4, 1979;

Transferred from 15A NCAC 12C .0315 Eff. April 1, 2017.