Formal Hearing Procedure

A Formal Hearing (i.e., Hearing) is a legal proceeding against a Licensee. A Hearing is conducted with a majority of the Board, the Attorney for the Board present, and a court reporter present.

The Licensee is usually present, and he is entitled to Counsel. If a Licensee does not attend after notice of the hearing, then the Board may hear the case and make a final decision based on the record.

In order for a matter to reach a Hearing, the following steps have occurred:

•  A complaint was made from one of several sources

•  A Field Representative of the Board gathered information

•  A member of the Review Committee reviewed the file and referred it to a formal hearing

•  The Board's Attorney reviewed the file

During the investigative and review process, the matter may have been terminated, a Consent Order could have been developed and tendered for Board consideration, or the matter referred for Hearing.

If a Hearing is warranted, the licensee is notified and witnesses are subpoenaed. Adequate notice is provided prior to the Hearing.

When the Board panel is developed for a Hearing, an impartial panel must result. No Board member may sit on a panel if he or she has prior detailed knowledge of the matter to come before the Hearing. No Board member may sit if a conflict of interest would or could occur because of the decision to be rendered. No Board member should sit if his/her personal knowledge of the Licensee, complainant, witnesses or other parties to the action would influence or bias his/her decision in the matter.

A Hearing is conducted with the decorum of a Legal Proceeding, which it is. The Presiding Officer is usually the Chairman or Vice-Chairman of the Board. The Presiding Officer calls the Hearing to order, and requests that the Board Attorney introduce the matter to be heard.

The Board Attorney presents the evidence that has been accumulated by the staff. This is presented by affidavits, testimony of witnesses, exhibits, or other pertinent data.

After each witness is examined, the Licensee or his attorney has the right to cross-examine the witness. The Board then has the right to ask questions. The Board Attorney can re-direct questions. Others can re-direct questions, as permitted by the Presiding Officer, until the chair is satisfied that all parties have had adequate opportunity to ask questions.

Following presentation of all evidence on behalf of the Board, the Licensee or his attorney has the right to present such evidence and witnesses as they deem appropriate. The same rules of procedure apply as above, that is the Licensee completes their examination, the Board Attorney cross-examines, the Board cross-examines, the Licensee or his attorney re-directs questions, until all parties are clear as to the testimony of the witness.

After all evidence and testimony have been presented, the Board Attorney summarizes the case from his perspective, and the Licensee or his attorney summarizes the defense.

The Presiding Officer advises the Licensee that the Board will take the matter under consideration, and the Licensee will receive written notice of the decision of the Board within a short period of time.

The written notice, when issued, will advise the Licensee of his right to appeal, and pertinent data concerning appeal should it be placed.

Article 87-23 of the General Statutes of the State of North Carolina gives authority to the Board to revoke or suspend a license for cause and also to order a reprimand or probation for cause. Cause includes fraud or deceit in obtaining a license, failure to comply with the provisions of the Statutes, or for gross negligence, incompetency, or misconduct. The Board may dismiss the matter for lack of cause.

The Board does not levy any fine or impose a restitution decree against a Licensee. The Board can accept a Consent Order whereby a Licensee voluntarily includes restitution as part of the proposed Order.

If during deliberations the Board panel should want clarification, information or advice from Counsel, the accused Licensee or his attorney are provided opportunity to comment.

After due deliberation, the Board will achieve a decision by motion and vote. A majority of the panel will make a decision valid. Unanimous vote is not required. The resulting decision, findings of fact, conditions and other pertinent information will be directed to the Board Attorney for conversion into a written Order.

The Board Attorney will convert the decision into a written Order, which will be forwarded to the Board Chairman for review and signature. Following signature, appropriate distribution will be made.