CHAPTER 43-01 Abstracters

43-01-01. Board — Definition.

Whenever the word “board” is used in this chapter it means the abstracters’ board of examiners.

Source: R.C. 1943, § 43-0101.

43-01-02. Abstracters’ board of examiners — Appointment — Term of office — Vacancies.

The abstracters’ board of examiners shall consist of three members each of whom must be appointed by the governor for a term of six years, with the terms of office so arranged that one term and only one expires on March thirty-first of every odd-numbered year. One member of the board must be an abstracter. Each member of the board shall qualify by taking the oath required of civil officers and holds office until that member’s successor is appointed and qualified. Any vacancy on the board must be filled by appointment by the governor for the unexpired term.

Source: S.L. 1925, ch. 1, § 2; 1925 Supp., § 3099a2; R.C. 1943, § 43-0102; S.L. 1981, ch. 435, § 1.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-01-03. Officers of board — Power to administer oaths.

At the first meeting of the board subsequent to the thirty-first day of March in each odd-numbered year, the members of the board shall elect a president and secretary-treasurer. The president must be a member of the board. The secretary-treasurer may not be a member of the board but must be a practical abstracter engaged in the business of making abstracts of title to real estate. The president and secretary-treasurer may administer oaths.

Source: S.L. 1925, ch. 1, § 3; 1925 Supp., § 3099a3; R.C. 1943, § 43-0103.

43-01-04. Compensation.

A member of the board is entitled to receive compensation in an amount fixed by the board for each day or portion of a day the member is actually engaged in the performance of official duties and such mileage reimbursement as is provided for in section 54-06-09. In addition thereto, the member is entitled to reimbursement for actual and necessary expenses in the amounts provided by law for state officers in section 44-08-04. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source: S.L. 1925, ch. 1, § 3; 1925 Supp., § 3099a3; R.C. 1943, § 43-0104; S.L. 1971, ch. 510, § 5; 1981, ch. 436, § 1; 1985, ch. 474, § 1.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-01-05. Duties of board — Power to make rules — Seal.

The board shall carry out the purposes and enforce the provisions of this chapter and shall make such rules and regulations as are necessary for the performance of its duties. The board shall have a seal.

Source: S.L. 1925, ch. 1, § 3; 1925 Supp., § 3099a3; R.C. 1943, § 43-0105.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-01-06. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source: S.L. 1925, ch. 1, § 4; 1925 Supp., § 3099a4; R.C. 1943, § 43-0106; S.L. 1963, ch. 346, § 36; 1973, ch. 403, § 26; 1975, ch. 466, § 28; 1995, ch. 350, § 28.

43-01-07. Moneys of board — How disbursed.

Moneys collected for the board under this chapter must be kept by the secretary-treasurer and disbursed only on warrants signed by the president and the secretary-treasurer. All expenses incident to the examinations required under this chapter, the expenses of preparing and issuing certificates and licenses, the reimbursement of board members’ expenses, and stationery, printing, clerk hire, and incidental office expenses must be paid by the board from the fees collected by it, and no expense incurred under this chapter may be a charge against the funds of this state. No part of the funds administered by the board revert to the general fund of this state. At the end of the person’s term, the secretary-treasurer shall account to the person’s successor for any moneys remaining in the person’s hands.

Source: S.L. 1925, ch. 1, § 4; 1925 Supp., § 3099a4; R.C. 1943, § 43-0107; S.L. 1985, ch. 474, § 2.

43-01-08. Records of board.

The board shall keep a register wherein it shall enter the name of each applicant for registration under the provisions of this chapter, with the applicant’s place of residence and such other information as may be appropriate, and the board shall cause to be entered therein the action taken upon the application and the date upon which a certificate of registration was issued or the application denied.

Source: S.L. 1925, ch. 1, § 6; 1925 Supp., § 3099a6; S.L. 1929, ch. 1, § 3; R.C. 1943, § 43-0108.

43-01-09. Requirements of abstracter of title — Records — Certificate of registration bond or liability policy.

Before any person, firm, corporation, or limited liability company may engage in the business of making and compiling abstracts of title to real estate within this state, the person or it shall:

  1. Have and maintain in such business a complete tract index and all instruments of record in the office of the recorder in and for the county in which the person or it is engaged in business, or shall have been engaged in good faith in the preparation of such records for not less than six months;
  2. Obtain a certificate of authority as is required by this chapter;
  3. File the bond or abstracter’s liability policy required under section 43-01-11; and
  4. Have in charge of such business a registered abstracter, as defined by this chapter.

Source: S.L. 1889, ch. 1, § 1; R.C. 1895, § 1774; R.C. 1899, § 1774; S.L. 1905, ch. 2, § 1; R.C. 1905, § 2231; S.L. 1907, ch. 1, § 1; 1911, ch. 329, § 1; 1913, ch. 1, § 1; C.L. 1913, § 3090; S.L. 1925, ch. 1, § 1; 1925 Supp., § 3099a1; S.L. 1929, ch. 1, § 1; R.C. 1943, § 43-0109; S.L. 1953, ch. 264, § 1; 1957 Supp., § 43-0109; S.L. 1993, ch. 54, § 106; 2001, ch. 120, § 1; 2007, ch. 356, § 1.

Collateral References.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract, 50 A.L.R.4th 314.

43-01-10. Certificate of registration — Application — Examination — Fee.

Any person, firm, corporation, or limited liability company desiring to obtain a certificate of authority under subsection 2 of section 43-01-09 shall make application therefor to the board and shall pay to the secretary-treasurer thereof an examination fee not exceeding the actual cost of the applicant’s examination by the board. The application must be upon a form prepared by the board and must contain such information as may be desired by it. The board shall fix the date and place for the examination of the applicant and shall give the applicant notice thereof by mail. The applicant shall appear at the time and place specified in the notice, and the board shall examine the applicant under such rules as it may prescribe. If the application is made by a firm, corporation, or limited liability company, one of the members, officers, or managers thereof shall take the examination.

  1. Registered abstracters, within the meaning of the chapter, shall comprise all persons who shall, upon the passage of this chapter, be in charge, either individually or jointly with other persons, of the abstract office which is the holder of a valid and subsisting certificate of authority as provided by this chapter and who shall obtain a certificate of registration as hereinafter provided, or persons who shall be granted certificates of registration by the board after passage of this chapter.
  2. Any person desiring to obtain a certificate of registration under this chapter shall make application to the board and shall pay to the secretary-treasurer of the board an examination fee fixed by the board not exceeding one hundred dollars except as hereinafter provided. Such application must be upon a form to be prepared by the board and to contain such information as may be desired by it. Thereupon the board shall fix a date and place for the examination of such applicant, of which notice must be given to applicant by mail, who shall appear at such meeting. Whereupon the board shall proceed to examine such applicant or applicants under such rules as may be adopted by the board.
  3. Any person, who, on July 1, 1953, is in charge, either individually or jointly with other persons, of an abstract office which is the holder of a valid and subsisting certificate of authority provided by subsection 2 of section 43-01-09 and who shall make application to the board prior to the expiration of said certificate of authority shall upon the payment of a fee fixed by the board not exceeding one hundred dollars be issued a certificate of registration, without examination, under such rules as may be provided by said board.
  4. The certificate of registration issued by the board must recite that the holder has complied with this chapter relating to examination or otherwise, and entitles the holder of the certificate of registration to take charge of any abstract office in any county in this state holding a certificate of authority under this chapter. Certificates of registration must be issued upon the payment of a fee fixed by the board not exceeding one hundred dollars and are valid for one year from the date of issuance but must be renewed annually by the board upon application within thirty days before the expiration of the registration upon a payment of a fee fixed by the board not exceeding one hundred dollars to the secretary-treasurer of the board. The board may issue temporary certificates of registration in its discretion. After August 1, 1993, an applicant for renewal of a registration shall include with the application a report of any continuing education courses attended by the applicant during the previous year. The board shall adopt rules to establish and administer continuing education requirements.
  5. Said board shall keep a register, wherein it shall enter the names of all applications for registration, and for certificates of authority, with their place of business and such other information as may be deemed appropriate, including the action taken by said board thereon, and the dates upon which certificates of registration and certificates of authority are issued.

Source: S.L. 1889, ch. 1, § 2; R.C. 1895, § 1775; R.C. 1899, § 1775; R.C. 1905, § 2232; S.L. 1911, ch. 329, § 2; C.L. 1913, § 3091; S.L. 1925, ch. 1, § 5; 1925 Supp., § 3099a5; S.L. 1929, ch. 1, § 2; R.C. 1943, § 43-0110; S.L. 1953, ch. 264, § 2; 1957 Supp., § 43-0110; S.L. 1981, ch. 436, § 2; 1985, ch. 474, § 3; 1987, ch. 510, § 1; 1993, ch. 54, § 106; 1993, ch. 415, § 1.

43-01-10.1. Conviction not bar to certification — Exceptions.

Conviction of an offense shall not disqualify a person, firm, corporation, or limited liability company from certification under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as an abstracter or that, following conviction of an offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source: S.L. 1977, ch. 130, § 12; 1993, ch. 54, § 106.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04(19).

43-01-11. Bonds or liability policy — Deductible policy permitted.

Before a certificate of authority may be issued, the applicant therefor shall file with the secretary-treasurer of the board a surety bond in favor of the state, or an abstracter’s liability policy to be approved by the board as to form, sufficiency, and surety thereof and written by a company authorized to write such insurance in this state, in a penal sum or limit of liability equal to ten thousand dollars for each ten thousand inhabitants, or major fraction thereof, residing in the county in which the applicant’s office is maintained, as shown by the last official federal or state census preceding the filing of the bond or abstracter’s liability policy. Such bond, or abstracter’s liability policy, however, may not be less than one hundred thousand dollars. The bond or liability policy must be conditioned for the payment by the abstracter of any liability imposed upon the abstracter by law for damages arising from any claim against the abstracter that may be sustained by or that accrues to any person by reason or on account of any negligent act, error, or omission in any abstract or certificate of title, or continuation thereof, made and issued by the abstracter. All surety bonds, liability policies, and evidence of annual renewal of the bonds and policies must be filed with the secretary-treasurer of the board. All abstracters’ liability policies must be endorsed to provide that cancellation cannot be effected by either the abstracter or the insurance company without ten days’ written notice to the abstracters’ board of examiners. It is permissible under this section to file an abstracter’s liability policy in the deductible form, provided that the deductible provision may not exceed ten thousand dollars.

Source: S.L. 1889, ch. 1, § 1; R.C. 1895, § 1774; R.C. 1899, § 1774; S.L. 1905, ch. 2, § 1; R.C. 1905, § 2231; S.L. 1907, ch. 1, § 1; 1911, ch 329, § 1; 1913, ch. 1, § 1; C.L. 1913, § 3090; S.L. 1925, ch. 1, §§ 7, 8; 1925 Supp., §§ 3099a7, 3099a8; R.C. 1943, § 43-0111; S.L. 1953, ch. 264, § 3; 1957 Supp., § 43-0111; S.L. 1969, ch. 390, § 2; 1981, ch. 436, § 3; 1985, ch. 474, § 4; 1987, ch. 510, § 2.

Cross-References.

Limitation of action against abstracter, see N.D.C.C. § 28-01-45.

Notes to Decisions

Liability Arises out of Contract.

Statute requiring bond to be conditioned for payment of “any and all damages” merely enlarged class to which abstracter was liable and did not affect nature of liability which remained a liability on contract, not in tort. Commercial Bank v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15, 1945 N.D. LEXIS 81 (N.D. 1945).

DECISIONS UNDER PRIOR LAW

Accrual of Right of Action.

Right of action on abstracter’s bond accrued when the mistake was made and the abstract delivered, and not from the time the damage accrued; liability was premised on contract, not tort, and thus was governed by six-year limitation on contract actions. Commercial Bank v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15 (1943), decided prior to enactment of section 28-01-45.

Collateral References.

Duty and liability of abstracter to employer respecting matters to be included in abstract, 28 A.L.R.2d 891.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract, 50 A.L.R.4th 314.

43-01-12. Board may require additional security on abstracter’s bond.

The board, upon thirty days’ notice, may require any person, firm, corporation, or limited liability company holding a certificate of authority to furnish additional bond or additional abstracter’s liability coverage as to the board seems proper, and to show cause why any bond or abstracters’ liability policy filed with it should not be held and declared insufficient and invalid.

Source: S.L. 1889, ch. 1, § 3; R.C. 1895, § 1777; R.C. 1899, § 1777; R.C. 1905, § 2234; S.L. 1911, ch. 329, § 4; C.L. 1913, § 3093; S.L. 1925, ch. 1, § 10; 1925 Supp., § 3099a10; R.C. 1943, § 43-0112; S.L. 1953, ch. 264, § 4; 1957 Supp., § 43-0112; S.L. 1993, ch. 54, § 106.

43-01-13. Seal of abstracter.

Any person, firm, corporation, or limited liability company furnishing abstracts of title to real property under the provisions of this chapter shall have a seal which has stamped on it the name and location of such person, firm, corporation, or limited liability company. An impression of the seal shall be deposited with the secretary-treasurer of the board before the certificate of registration is issued. The seal shall be affixed to every abstract or certificate of title issued by such person, firm, corporation, or limited liability company.

Source: S.L. 1889, ch. 1, § 8; R.C. 1895, § 1782; R.C. 1899, § 1782; R.C. 1905, § 2239; C.L. 1913, § 3098; S.L. 1925, ch. 1, § 11; 1925 Supp., § 3099a11; R.C. 1943, § 43-0113; S.L. 1993, ch. 54, § 106.

43-01-14. Certification of authority — Fee — Renewal.

A certificate of authority must be issued to an applicant who successfully passes the examination of the board and complies with the other provisions of this chapter, upon the payment of the registration fee fixed by the board not exceeding one hundred dollars, which must be in addition to the examination fee. A certificate is valid for five years after the date thereof. A certificate must be renewed by the board upon application, made within thirty days prior to the expiration date, accompanied by payment of a fee fixed by the board not exceeding one hundred dollars and an affidavit that the applicant has and maintains in the applicant’s business a complete tract index and all instruments of record in the office of the recorder in and for the county in which the applicant has the applicant’s place of business or has been engaged in good faith in the preparation of such records for not less than six months.

Source: S.L. 1925, ch. 1, § 6; 1925 Supp., § 3099a6; S.L. 1929, ch. 1, § 3; R.C. 1943, § 43-0114; S.L. 1953, ch. 264, § 5; 1957 Supp., § 43-0114; S.L. 1981, ch. 436, § 4; 1985, ch. 474, § 5; 2001, ch. 120, § 1; 2007, ch. 356, § 2.

43-01-15. Authority and duty of abstracter under certificate.

The certificate of authority shall authorize the person, firm, corporation, or limited liability company named therein to engage in and carry on the business of an abstracter of real estate titles in the county in which the abstracter’s place of business is located and for that purpose to have access during ordinary office hours to the offices of any county or of the state and to make such memoranda or notations from the records thereof as may be necessary for the purpose of making such abstracts of title. Any person, firm, corporation, or limited liability company holding a certificate shall furnish or continue an abstract of title to any tract of land in the county, when requested to do so, on payment of the fees provided in this chapter.

Source: S.L. 1889, ch. 1, § 2; R.C. 1895, § 1776; R.C. 1899, § 1776; R.C. 1905, § 2233; S.L. 1911, ch. 329, § 3; C.L. 1913, § 3092; S.L. 1925, ch. 1, § 8; 1925 Supp., § 3099a8; R.C. 1943, § 43-0115; S.L. 1953, ch. 264, § 6; 1957 Supp., § 43-0115; S.L. 1993, ch. 54, § 106.

Notes to Decisions

Contractual Relationship.

The relationship between an abstracter and one who employs him to furnish an abstract of title to land is one of contract. Commercial Bank v. Adams County Abstract Co., 73 N.D. 645, 18 N.W.2d 15, 1945 N.D. LEXIS 81 (N.D. 1945).

Duty of Abstracter.

An abstracter is not called on for professional opinions as to any of the matters relating to a title. It is his duty to set forth the facts relating to the title as shown by the records. Morin v. Divide County Abstract Co., 48 N.D. 214, 183 N.W. 1006, 1921 N.D. LEXIS 25 (N.D. 1921).

Collateral References.

Duty and liability of abstracter to employer respecting matters to be included in abstract, 28 A.L.R.2d 891.

Negligence in preparing abstract of title as ground of liability to one other than person ordering abstract, 50 A.L.R.4th 314.

43-01-15.1. Surface abstracts and mineral abstracts to be furnished upon request — Zoning and subdivision exclusion upon request.

An abstracter shall furnish an abstract of title to the surface of any tract of land, when requested to do so, omitting therefrom all instruments of transfer or conveyance of mineral rights, royalties, and other mineral interests except instruments which sever mineral rights or royalties from surface rights. In addition to such surface abstract, an abstracter shall, when requested to do so, furnish a list showing the names of the grantor and grantee and the recording data of all instruments in the chains of title which transfer or convey mineral rights, royalties, or other mineral interests and which are not included in the surface abstract. For each instrument searched and listed, but not included in the surface abstract, an abstracter may charge a fee not to exceed three dollars. When requested to do so, an abstracter shall furnish a mineral abstract of any chain of title to the minerals of any tract of land which shall consist of the instrument severing the mineral rights or royalties from the surface rights and include all instruments of transfer or conveyance of mineral rights, royalties, and other mineral interests. If requested, such mineral abstract may be combined with a surface abstract of all instruments affecting title to the tract of land to and including the instrument severing the mineral rights, royalties, or other mineral interests being abstracted. Further, when requested to do so, an abstracter shall omit zoning and subdivision ordinances but shall note and exclude them from the abstract of title. An abstracter may charge a per entry fee under section 43-01-18 for each omitted zoning and subdivision ordinance.

Source: S.L. 1953, ch. 266, § 1; R.C. 1943, 1957 Supp., § 43-01151; S.L. 1985, ch. 475, § 1; 1993, ch. 416, § 1; 2005, ch. 356, § 1; 2015, ch. 285, § 1, effective August 1, 2015.

43-01-16. Cancellation or denial of certificate — Discipline.

The board, after receiving a written and signed complaint alleging a violation of any ground for discipline under this section and upon thirty days’ notice, may require any person, firm, corporation, or limited liability company holding a certificate of authority, or any person holding a certificate as a registered abstracter, to show cause why the same should not be canceled or other disciplinary measures taken. The board may deny an application for a certificate of authority or a certificate of registration for any reason that a certificate of authority or a certificate of registration may be canceled or disciplinary measures taken. A certificate of authority or certificate of registration may be canceled or disciplinary measures taken, however, only for one or more of the following reasons:

  1. Violation of the provisions of this chapter or the board’s administrative rules by the holder.
  2. If the holder thereof has been convicted of an offense determined by the board to have a direct bearing upon the holder’s ability to serve the public as an abstracter, or if, following conviction of an offense, the board finds the holder is not sufficiently rehabilitated under section 12.1-33-02.1.
  3. A finding by the board that the holder is guilty of habitual carelessness, inattention to business or unreasonable timeliness of service, or intoxication or the use of drugs to such an extent as to incapacitate the holder for business, including not preparing an abstract as requested under section 43-01-15.1.
  4. A finding by the board that the holder is guilty of fraudulent practices.
  5. A certificate of authority may be canceled, or other disciplinary measures taken, upon the failure of the holder thereof to provide additional security as provided by section 43-01-12, or upon failure to file an abstracter’s liability policy in lieu of any canceled policy, before such cancellation becomes effective, or a surety bond in place thereof.

The board may inspect an abstracter’s records to determine compliance with this chapter or rules adopted under this chapter. The board may adopt rules under chapter 28-32 addressing discipline of abstracters, including establishing standards for timeliness of service based on a presumed standard turnaround time of three weeks or less. If the certificate of authority is held by a firm, corporation, or limited liability company, the provisions of this section shall be applicable to the members, officers, or managers thereof. Disciplinary measures that the board may take include canceling or suspending a certificate of authority or certificate of registration, requiring additional education, establishing a mentor or monitor, restricting practice parameters, or imposing a monetary penalty of no greater than five hundred dollars for each violation. In addition, an individual or organization found in violation of the requirements of this section may be assessed costs, including attorney’s fees, by the board. An entity whose certificate of authority has been canceled or suspended must surrender all customer abstracts and pending orders to the board immediately upon being notified of the cancellation or suspension. The board shall take reasonable measures to contact the customers.

Source: S.L. 1889, ch. 1, § 3; R.C. 1895, § 1777; R.C. 1899, § 1777; R.C. 1905, § 2234; S.L. 1911, ch. 329, § 4; C.L. 1913, § 3093; S.L. 1925, ch. 1, § 10; 1925 Supp., § 3099a10; R.C. 1943, § 43-0116; S.L. 1953, ch. 264, § 7; 1957 Supp., § 43-0116; S.L. 1977, ch. 130, § 13; 1993, ch. 54, § 106; 2005, ch. 356, § 2.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Definition of offense, see N.D.C.C. § 12.1-01-04(19).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-01-17. Appeal from cancellation of certificate.

Upon the denial of an application for a certificate of authority, or an applicant for a certificate of registered abstracter, or upon the cancellation of either a certificate of authority or a certificate of registered abstracter, the applicant or the holder thereof may appeal from the decision of the board to the district court. Such appeal must be taken by the service upon the secretary-treasurer of the board, within thirty days after notice of the decision has been served, of a notice of appeal and an appeal bond in the sum of two hundred fifty dollars. The appeal must come on for hearing at the next regular term of the district court in the county in which the applicant or certificate holder has a place of business or residence within the state of North Dakota.

Source: S.L. 1889, ch. 1, § 4; R.C. 1895, § 1778; R.C. 1899, § 1778; R.C. 1905, § 2235; C.L. 1913, § 3094; S.L. 1925, ch. 1, § 10; 1925 Supp., § 3099a10; R.C. 1943, § 43-0117; S.L. 1953, ch. 264, § 8; 1957 Supp., § 43-0117.

43-01-18. Fees chargeable by abstracter.

An abstracter may charge no more than the following fees for making and certifying to an abstract:

  1. For each entry on an abstract or continuation of an entry on an abstract, fifteen dollars.
  2. For a complete certification covering the records of the several county offices, one hundred fifty dollars.
  3. For a certification covering lands in excess of one quarter section [64.75 hectares] in the same abstract of title and for each quarter section [64.75 hectares] or portion of a quarter section in excess of one, an additional fee of fifteen dollars.
  4. For a certification covering premises in more than one block in any subdivision in the same abstract of title and for the premises in each additional block in excess of one, an additional fee of fifteen dollars.
  5. For each name searched for judgments, real estate taxes, bankruptcy proceedings, federal tax liens, and state tax liens, ten dollars and fees charged to the abstracter by a governmental agency or governmental entity.
  6. The fees as may be fixed by special statute.

Source: S.L. 1889, ch. 1, § 7; R.C. 1895, § 1781; R.C. 1899, § 1781; R.C. 1905, § 2238; C.L. 1913, § 3097; S.L. 1925, ch. 1, § 9; 1925 Supp., § 3099a9; R.C. 1943, § 43-0118; S.L. 1949, ch. 285, § 1; 1953, ch. 264, § 9; 1957 Supp., § 43-0118; S.L. 1969, ch. 360, § 1; 1975, ch. 393, § 1; 1981, ch. 437, § 1; 1985, ch. 475, § 2; 1993, ch. 416, § 2; 2001, ch. 363, § 1; 2007, ch. 357, § 1; 2015, ch. 285, § 2, effective August 1, 2015.

43-01-19. County officers may certify abstracts.

This chapter does not prevent the recorder, county treasurer, or clerk of court from certifying to abstracts of title to lands from the records of their respective offices. Each officer, however, is liable on the officer’s official bond for the faithful performance of all acts performed by the officer as the abstracter. If the officer certifying the abstract is the clerk of court, the clerk shall charge and collect a fee as prescribed in section 27-05.2-03.

Source: S.L. 1889, ch. 1, § 6; R.C. 1895, § 1780; R.C. 1899, § 1780; R.C. 1905, § 2237; C.L. 1913, § 3096; R.C. 1943, § 43-0119; S.L. 1985, ch. 336, § 15; 1999, ch. 107, § 9; 1999, ch. 278, § 69; 2001, ch. 120, § 1.

Cross-References.

Power of trust company to make, compile, and certify abstracts of title, see N.D.C.C. § 6-05-08, subsec. 7.

43-01-20. Penalty.

Any person making, compiling, or certifying to an abstract of title to real property in this state without first having complied with the provisions of this chapter is guilty of a class B misdemeanor.

Source: S.L. 1889, ch. 1, § 5; R.C. 1895, § 1779; R.C. 1899, § 1779; R.C. 1905, § 2236; C.L. 1913, § 3095; S.L. 1925, ch. 1, § 12; 1925 Supp., § 3099a12; R.C. 1943, § 43-0120; S.L. 1975, ch. 106, § 467; 1987, ch. 73, § 27.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-01-21. Abstract prima facie evidence of title — When recorded.

If the records of deeds, mortgages, liens, judgments, and instruments of like nature in any county have been lost or destroyed, the abstract prepared by a regularly bonded abstracter of said county must be deemed prima facie evidence of title, and such regularly certified abstract of title may be recorded as other instruments are recorded.

Source: S.L. 1907, ch. 2, § 1; C.L. 1913, § 5547; R.C. 1943, § 43-0121.

Cross-References.

Admissibility of evidence of contents of lost writing, N.D.R.Ev. 1004.

43-01-22. Abstract prepared by regularly bonded abstracter is evidence.

Abstracts prepared by an official abstracter must be received as evidence in all courts and are prima facie evidence in all courts and places of the facts stated therein.

Source: S.L. 1953, ch. 265, § 1; R.C. 1943, 1957 Supp., § 43-0122.

Notes to Decisions

Map Attached to Abstract.

A map drawn by the abstracter and attached to the abstract of title, but not certified to as an entry contained in the abstract is not a part of the official abstract of title and is not admissible in evidence. City of Jamestown v. Miemietz, 95 N.W.2d 897, 1959 N.D. LEXIS 78 (N.D. 1959).

43-01-23. Temporary authority of an abstracter to act in an additional county.

  1. If it appears to the board that there is no abstracter authorized to engage in and carry on the business of an abstracter of real estate titles in a county or that there is an authorized abstracter in a county who is unable to perform the duties of an abstracter due to death, disability, a disaster or emergency, or disciplinary action, the board may authorize an individual or organization having a certificate of authority and certificate of registration to operate in another county to operate in the county having no abstracter through the issuance of a temporary certificate of authority. The board may not charge an abstracter for the temporary certificate of authority. The board may require additional security than provided under section 43-01-11. The abstracter operating under the temporary certificate of authority is not required to have a complete tract index and all instruments of record in the office of the recorder in and for the county in which the abstracter is temporarily engaged in business, nor need the abstracter have been engaged in the preparation of such records. The temporary certificate of authority may not exceed such time as the board has determined an abstracter having a regular certificate of authority and certificate of registration is able to engage in and carry on the business of an abstracter of real estate titles in the county, but the abstracter holding the temporary certificate of authority may complete any work already engaged. The abstracter having a temporary certificate of authority may seek to operate in the county on a regular basis through compliance with all statutory requirements.
  2. The board may establish a fund to provide for additional expenses of an abstracter operating under a temporary certificate of authority. The fund may be paid for by an additional fee fixed by the board of no more than fifty dollars per year for each certificate of registration. The fund may not exceed five thousand dollars. The board may pay the expenses, including mileage, meals, and lodging, of an abstracter operating under a temporary certificate of authority at the rates established for state employees on official business.

Source: S.L. 2005, ch. 356, § 3; 2007, ch. 356, § 3.

43-01-24. Utility easement documentation abstracts upon request.

Upon request, an abstracter shall furnish an abstract to title to the surface of any tract of land omitting documents that affect utility easements, except for the initial document severing the interest from the surface and a document limiting, modifying, or releasing the interest. In addition and upon request, an abstracter shall furnish a list showing the names of the grantor and grantee and the recording data of all related documents pertaining to a utility easement which are not included in the surface abstract. For each instrument searched and listed, but not included in the surface abstract, an abstracter may charge a fee of up to one dollar and fifty cents.

Source: S.L. 2009, ch. 356, § 1.

CHAPTER 43-02 Accountants [Repealed]

[Repealed by S.L. 1975, ch. 394, § 12]

CHAPTER 43-02.1 Public Accountancy Act [Repealed]

[Repealed by S.L. 1993, ch. 417, § 20]

CHAPTER 43-02.2 Accountants

43-02.2-01. Purpose.

It is the policy of this state, and the purpose of this chapter, to promote the reliability of information that is used for guidance in financial transactions or for accounting for or assessing the financial status or performance of commercial, noncommercial, and governmental enterprises. Public interest requires that persons professing special competence in accountancy or offering assurance as to the reliability or fairness of presentation of such information have demonstrated or maintained their qualifications to do so, and that persons who have not demonstrated and maintained such qualifications, including certificate holders not in public practice, not be permitted to hold themselves out as having such special competence or to offer such assurance. Public interest requires that the conduct of persons licensed as having special competence in accountancy be regulated in all aspects of their professional work. Public interest requires that a public authority competent to prescribe and assess the qualifications and to regulate the conduct of practitioners of public accountancy and certificate holders not in public practice be established and that the use of titles which are likely to mislead the public as to the status or competence of the persons using such titles be prohibited.

Source: S.L. 1993, ch. 417, § 2; 1999, ch. 372, § 1.

Note.

Section 1 of chapter 417, S.L. 1993 provides:

“This Act may be cited as the ‘Accountancy Act of 1993.’”

Collateral References.

Liability of independent accountant to investors or shareholders, 48 A.L.R.5th 389.

43-02.2-02. Definitions.

As used in this chapter, unless the context requires otherwise:

  1. “Board” means the state board of accountancy.
  2. “Certificate” means a certificate as “certified public accountant” issued under section 43-02.2-04 or provisions of prior law, or a corresponding certificate as certified public accountant issued after examination under the law of any other state.
  3. “Client” means a person or entity that agrees with a licensee to receive any professional service other than an employer-employee relationship.
  4. “Firm” means a sole proprietorship, a corporation, a partnership, or any combination thereof, or any other entity permitted by law.
  5. “Licensee” means the holder of a certificate, license, or permit issued under this chapter or prior law.
  6. “NASBA national qualification appraisal service” means the section of the national association of state boards of accountancy that either reviews the CPA licensure requirements of its member jurisdictions to determine which CPA licensure requirements are substantially equivalent to the licensure requirements of the Uniform Accountancy Act or evaluates the credentials of individuals who are licensed in jurisdictions that are not substantially equivalent to determine their individual substantial equivalency.
  7. “Permit” means a permit to practice public accountancy issued under section 43-02.2-06 or 43-02.2-07, prior law, or corresponding provisions of the laws of other states.
  8. “Practice of” or “practicing” public accountancy means the performance or the offering to perform by a person or firm holding out to the public as a licensee, for a client or potential client, services involving the use of accounting or auditing skills including the issuance of reports on financial statements, but not including management advisory, financial advisory, or consulting services, bookkeeping services, or the preparation of tax returns or the furnishing of advice on tax matters unless provided by a firm of certified public accountants or licensed public accountants.
  9. “Practice privilege” means the privilege for a person to practice public accountancy described in, and subject to the conditions contained in, subsection 1 of section 43-02.2-04.1.
  10. “Practice review” means a study, appraisal, or review of one or more aspects of the professional work of a firm in the practice of public accountancy, by a person or persons who hold certificates and are in the practice of public accounting and who are not affiliated with the person or firm being reviewed.
  11. “Principal place of business” means the office location designed by the licensee for purposes of substantial equivalence and reciprocity.
  12. “Professional” means arising out of or related to the specialized knowledge or skills associated with certified public accountants or licensed public accountants.
  13. “Report”, when used with reference to financial statements, means an opinion, report, or other form of language that states or implies assurance as to the reliability of any financial statements and that also includes or is accompanied by any statement or implication that the person or firm issuing it has special knowledge or competence in accounting or auditing. A statement or implication of special knowledge or competence may arise from use by the issuer of the report of names or titles indicating that the issuer is an accountant, auditor, or is in the business of accounting, or from the language of the report. “Report” includes any form of language that disclaims an opinion when the form of language is conventionally understood to imply any positive assurance as to the reliability of the financial statements referred to or special competence on the part of the person or firm issuing such language. “Report” includes any other form of language that is conventionally understood to imply such assurance or such special knowledge or competence.
  14. “Rule” means any rule, regulation, or other written directive of general application duly adopted by the board.
  15. “State” means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands.
  16. “Substantial equivalency”, as used in section 43-02.2-04, pertaining to certification by reciprocity, and in section 43-02.2-04.1, pertaining to the practice privilege, is a determination by the board or its designee that another jurisdiction’s education, examination, and experience requirements are comparable to or exceed that of the Uniform Accountancy Act, or that an individual’s education, examination, and experience qualifications are comparable to or exceed that of the Uniform Accountancy Act. In ascertaining substantial equivalency as used in this chapter, the board shall take into account the qualifications without regard to the sequence in which experience, education, or examination requirements were attained.

Source: S.L. 1993, ch. 417, § 3; 1999, ch. 372, § 2; 2009, ch. 357, § 1.

43-02.2-03. State board of accountancy.

  1. The state board of accountancy consists of five members appointed by the governor. Four members of the board must be residents of this state who hold certified public accountant certificates issued under the laws of this state and one member of the board must be a resident of this state who is a licensed public accountant under the laws of this state. When the number of licensed public accountants in this state drops below twenty-five, the licensed public accountant member requirement ceases to apply, except that the licensed public accountant then serving on the board may complete that term of office and thereafter the board shall consist of five certified public accountants. The terms of office must be arranged so that only one term expires each year on June thirtieth. Successor board member appointments are for terms of five years. Each member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until a successor is appointed and qualified. A vacancy on the board must be filled by appointment by the governor from a list of at least three nominees submitted by the appropriate nominating committee. Any member of the board whose certificate is revoked or suspended automatically ceases to be a member of the board. The governor may remove any member of the board for neglect of duty or other just cause after a hearing. No person who has served two complete terms is eligible for reappointment, but appointment to fill an unexpired term may not be considered a complete term for this purpose.
  2. At its first meeting after June thirtieth in each year, the board shall organize by electing one of its members as president, one as secretary, and one as treasurer. The offices of secretary and treasurer may be held by one person. A majority of the board constitutes a quorum.
  3. A member of the board is entitled to compensation in an amount to be fixed by the board for each day or portion of a day spent in the discharge of duties, mileage as provided under section 54-06-09, and reimbursement for actual and necessary expenses incurred in the discharge of official duties.
  4. All expenses incident to examinations under this chapter, expenses of preparing and issuing certificates and permits, travel expenses and other allowable expenses of the members of the board, and stationery, printing, clerk hiring, and other office expenses must be paid by the board from the fees collected by it, and no expense incurred under this chapter may be a charge against the funds of this state. Funds administered by the board may not revert to the state general fund.
  5. The board has the following powers:
    1. To administer oaths to all applicants or persons appearing before it in respect to investigations, examinations, or the issuance of certified public accountant certificates.
    2. To conduct investigations and examinations and issue certificates to properly qualified applicants and permits to properly qualified firms.
    3. To determine the qualifications of all applicants.
    4. To employ and establish the salary of an executive director and such other personnel as it deems necessary in administration and enforcement of this chapter. The board may appoint committees or persons, including counsel, to advise or assist the board.
    5. To take all action that is necessary and proper to effectuate the purposes of this chapter, including the power to sue and be sued in its official name as an agency of this state, to issue subpoenas to compel the attendance of witnesses and the production of documents, to administer oaths, to take testimony, to cooperate with appropriate authorities in other states in investigations and enforcement concerning violations of this chapter and comparable laws of other states, and to receive evidence concerning all matters within its jurisdiction. In case of disobedience of a subpoena, the board may invoke the aid of any court in requiring the attendance and testimony of witnesses and the production of documentary evidence. The board, its members, and its agents are immune from personal liability for actions taken in good faith in the discharge of the board’s responsibilities.
    6. The board may adopt rules governing its administration and enforcement of this chapter and the conduct of licensees, including:
      1. Rules governing the board’s meetings and the conduct of its business;
      2. Rules of procedure governing the conduct of investigations and hearings by the board;
      3. Rules specifying the educational and experience qualifications required for the issuance of certificates under this chapter and the continuing education required for renewal of certificates and licenses;
      4. Rules of conduct including rules relating to independence, integrity, and objectivity; competence and technical standards; responsibilities to the public; and responsibilities to clients;
      5. Rules specifying actions and circumstances that must be deemed to constitute holding oneself out as a licensee in connection with the practice of public accountancy;
      6. Rules governing the manner and circumstances of use of the titles “certified public accountant”, “CPA”, “licensed public accountant”, and “LPA”;
      7. Rules concerning substantial equivalency;
      8. Rules regarding practice reviews that may be required to be performed under this chapter; and
      9. Other rules the board deems necessary or appropriate for implementing this chapter.

Source: S.L. 1993, ch. 417, § 4; 1999, ch. 372, § 3.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Oath of civil officers, see N.D.C.C. § 44-01-05.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

Collateral References.

Validity, construction, and application of statute or regulation restricting the use of terms such as “accountant,” “public accountant,” or “certified public accountant,” 4 A.L.R.4th 1201.

43-02.2-04. Certified public accountants.

  1. The board shall grant the certificate of “certified public accountant” to any person of good moral character who meets the requirements of this section.
  2. For the purposes of this chapter, good moral character means the lack of a history of dishonest or felonious acts. The board may refuse to grant a certificate on the grounds of failure to satisfy this requirement only if there is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a licensee and if the finding by the board of lack of good moral character is supported by clear and convincing evidence. When an applicant is found to be unqualified for a certificate because of a lack of good moral character, the board shall furnish the applicant a statement containing the findings of the board, a complete record of the evidence upon which the determination was based, and a notice of the applicant’s right of appeal.
  3. The board shall grant or renew certificates to persons who make application and demonstrate that their qualifications are in accordance with the following:
    1. The board shall issue a certificate to a holder of a certificate, license, or permit issued by another state, upon a showing that the applicant is eligible under the substantial equivalency standard set out in subsection 1 of section 43-02.2-04.1. An application under this section may be made through the NASBA qualification appraisal service.
    2. With regard to applicants that do not qualify for reciprocity under the substantial equivalency standard set out in subdivision a, the board shall issue a certificate to a holder of a certificate, license, or permit issued by another state upon a showing that:
      1. The applicant passed the uniform CPA examinations;
      2. The applicant had four years of experience of the type described in subsection 14 or meets comparable requirements prescribed by the board by rule, after passing the examination upon which the applicant’s certificate was based and within ten years immediately preceding the application; and
      3. If the applicant’s certificate, license, or permit was issued more than four years prior to the application for issuance of an initial certificate under this section, that the applicant has fulfilled the requirements of continuing professional education that would have been applicable under subsection 15.
    3. The applicant shall pay the applicable fee.
    4. An individual who establishes that individual’s principal place of business in this state must obtain a certificate under this section.
  4. The board shall issue a certificate to a holder of a recognized accounting designation from a jurisdiction or organization outside of the United States, provided such jurisdiction or organization extends similar reciprocity to the certificate holders of this state, and upon a showing to the board’s satisfaction that the applicant:
    1. Meets the good moral character requirement of subsection 2;
    2. Meets the substantial equivalent of the education requirements of subsection 5 and the experience requirements of subsection 14 at the time of application, or at the time of the issuance of the designation by the other jurisdiction or organization met the education and experience requirements then applicable in this state;
    3. Has completed examinations generally equivalent to those prescribed under subsection 6;
    4. Has satisfactorily completed any additional examinations that the board prescribes; and
    5. Has paid the applicable fees.
  5. The education requirement for a certificate is as follows:
    1. Through December 31, 1999, a baccalaureate degree or its equivalent conferred by a college or university acceptable to the board, and an accounting concentration or equivalent as determined by board rule to be appropriate, or four years of public accounting experience on one’s own account or in the office of a public accountant in active practice, or in an accounting or auditing position with the government of the United States or a state.
    2. After December 31, 1999, at least one hundred fifty semester hours of college education including a baccalaureate or higher degree or its equivalent conferred by a college or university acceptable to the board, the total educational program to include an accounting concentration or equivalent as determined by board rule to be appropriate. An individual who on December 31, 1999, meets the requirements of subdivision a may obtain a certificate under subdivision a if the individual passes the examination in accordance with board rules before December 31, 2004.
  6. The examination required to be passed as a condition for the granting of a certificate must test the applicant’s knowledge of the subjects of accounting and auditing. The time for holding the examination must be fixed by the board and may be changed from time to time. The board may prescribe by rule the methods of applying for and conducting the examination, including methods for grading papers and determining a passing grade required of an applicant for a certificate provided that the board to the extent possible sees to it that the grading of the examination and the passing grade requirements are uniform with those applicable in all other states. The board may use all or any part of the uniform certified public accountant examination and advisory grading service of the American institute of certified public accountants and may contract with third parties to perform administrative services with respect to the examination it deems appropriate to assist it in performing its duties. The board may permit a candidate to take the examination if the board is satisfied that the candidate will complete the educational requirements of this section within six months after the candidate’s application to take the examination.
  7. An applicant must pass the examination provided for in subsection 6, as specified by rule, in order to qualify for a certificate.
  8. An applicant must be given credit for any and all sections of an examination passed in another state if such credit would have been given under then applicable requirements, if the applicant had taken the examination in this state.
  9. The board may in particular cases waive or defer any of the requirements of subsections 7 and 8 regarding the circumstances under which the examination must be passed, upon a showing that, by reason of circumstances beyond the applicant’s control, the applicant was unable to meet the requirement.
  10. The board may charge, or provide for a third party administering the examination to charge, each applicant a fee, in an amount prescribed by the board by rule, for examination or re-examination.
  11. A certificate of certified public accountant must be renewed each year, with renewal subject to payment of fees and any other requirements prescribed by the board.
  12. The board may require examination of other related subjects as specified by rule.
  13. Applicants for initial issuance or renewal of certificates under this section shall list in the applications all states and jurisdictions in which they have applied for or hold certificates or permits or other recognized accounting designation, and each holder of or applicant for a certificate under this section shall notify the board in writing, within thirty days after its occurrence, of any issuance, denial, revocation, or suspension of a certificate or permit or other recognized accounting designation by another state or jurisdiction.
  14. After December 31, 2000, an applicant for initial issuance of a certificate under this section shall show that the applicant has had one year of experience. This experience must include providing any type of service or advice involving the use of accounting, attest, management advisory, financial advisory, tax, or consulting skills. This experience must be verified and must meet any other requirements prescribed by the board by rule. This experience is acceptable if it was gained through employment in government, industry, academia, or public accounting. This experience requirement does not apply to those who received a certificate from this state prior to January 1, 2000.
  15. The board may require by rule, as a condition for granting and renewal of certificates under this section, that applicants show completion of continuing education meeting requirements of board rule. The continuing education rules may include provisions for exceptions and must include reasonable provision for an applicant who cannot meet the continuing education requirements due to circumstances beyond the applicant’s reasonable control.

Source: S.L. 1993, ch. 417, § 5; 1999, ch. 372, § 4; 2009, ch. 357, § 2.

Collateral References.

Tax returns: construction and application of statutory provisions respecting persons who may prepare tax returns for others, 10 A.L.R.2d 1443.

Contracts: recovery back of money paid to unlicensed person required by law to have occupation or business license or permit to make contract, 74 A.L.R.3d 637.

Accountant’s malpractice liability to client, 92 A.L.R.3d 396.

Validity, construction, and application of statute or regulation restricting use of terms such as “accountant,” “public accountant,” or “certified public accountant” 4 A.L.R.4th 1201.

Liability of independent accountant to investors or shareholders, 48 A.L.R.5th 389.

43-02.2-04.1. Substantial equivalency.

  1. An individual whose principal place of business is not in this state shall have all the privileges of certificate holders and licensees of this state without the need to obtain a certificate or permit under section 43-02.2-04, if the individual holds a valid license as a CPA from any state that the NASBA national qualification appraisal service has verified to be in substantial equivalence with the CPA licensure requirements of the Uniform Accountancy Act, or, if the individual’s license is not from any state which the NASBA national qualification appraisal service has verified to be in substantial equivalence with the CPA licensure requirements of the Uniform Accountancy Act, that the individual has obtained from the NASBA national qualification appraisal service verification that such individual’s CPA qualifications are substantially equivalent to the CPA licensure requirements of the Uniform Accountancy Act. An individual who passed the uniform CPA examination and holds a valid license issued by any other state prior to January 1, 2012, may be exempt from the education requirement in the Uniform Accountancy Act for purposes of this section.
  2. Notwithstanding any other provision of law, an individual who offers or renders professional services, whether in person or by mail, telephone, or electronic means, under this section shall be granted practice privileges in this state and may use the title “CPA” or “certified public accountant” and no notice, fee, or other submission shall be provided by any such individual. Such an individual is subject to the requirements of subsection 3.
  3. Any individual licensee of another state exercising the privilege afforded under this section and the firm that employs that licensee hereby simultaneously consent, as a condition of the grant of this privilege:
    1. To the personal and subject matter jurisdiction and disciplinary authority of the board;
    2. To comply with this chapter and the board’s rules;
    3. That in the event the license from the state of the individual’s principal place of business is no longer valid, the individual will cease offering or rendering professional services in this state individually and on behalf of a firm; and
    4. To the appointment of the state board which issued the person’s license as the person’s agent upon whom process may be served in any action or proceeding by this board against the licensee.
  4. A licensee of this state offering or rendering services or using the licensee’s CPA title in another state is subject to disciplinary action in this state for an act committed in another state for which the licensee would be subject to discipline in the other state. The board shall investigate any complaint made by the board of accountancy of another state.

Source: S.L. 1999, ch. 372, § 14; 2009, ch. 357, § 3.

43-02.2-05. Permits to practice — Individual. [Repealed]

Repealed by S.L. 1999, ch. 372, § 15.

43-02.2-06. Permits to practice — Firms.

  1. The board shall grant or renew permits to practice as a CPA or LPA firm to applicants that demonstrate their qualifications therefor in accordance with this subsection.
    1. The following must hold a permit issued under this subsection:
      1. Any firm with an office in this state practicing public accountancy as defined in subsection 8 of section 43-02.2-02; or
      2. Any firm with an office in this state that uses the title “CPA”, “LPA”, “CPA firm”, or “LPA firm”, or similar titles.
    2. A firm which is not subject to the requirements of subdivision a may perform professional services within the practice of public accountancy while using the title “CPA” or “CPA firm” in this state without a permit issued under this subsection only if:
      1. It performs such services through an individual with practice privileges under subsection 1 of section 43-02.2-04.1; and
      2. It can lawfully do so in the state where such individuals with practice privileges have their principal place of business.
  2. Permits must be issued and renewed on an annual basis. Applications for permits must be made in the form the board specifies. The board shall grant or deny any application no later than ninety days after the application is filed in proper form. If the applicant seeks the opportunity to show that issuance or renewal of a permit was mistakenly denied or if the board is not able to determine whether it should be granted or denied, the board may issue to the applicant a provisional permit, which expires ninety days after its issuance or when the board determines whether or not to issue or renew the permit for which application was made, whichever occurs first.
  3. An applicant for initial issuance or renewal of a permit to practice under this section must show that notwithstanding any other provision of law, a simple majority of the ownership of the firm, in terms of financial interests and voting rights, belongs to licensees of a state or other recognized jurisdiction and that all certified public accountants or licensed public accountants associated with the firm whose principal place of business is in this state and who perform professional services in this state hold a valid certificate or license issued by this state. The firm and its owners must comply with all board rules regarding ownership.
  4. An applicant for initial issuance or renewal of a permit to practice under this section is required to register each office of the firm within this state with the board.
  5. The board may charge a fee for each application for initial issuance or renewal of a permit under this section in an amount prescribed by the board by rule.
  6. Applicants for initial issuance or renewal of permits under this section shall in their applications list all states and jurisdictions in which they have applied for or hold permits to practice public accountancy or similar authorizations, and each holder of or applicant for a permit under this section shall notify the board in writing, within thirty days after its occurrence, of any change in the identities of partners, officers, or shareholders who work regularly within this state, any change in the number or location of offices within this state, any change in the identity of the persons in charge of such offices, and any issuance, denial, revocation, or suspension of a permit by any other state or jurisdiction.
  7. The board may require by rule, on either a uniform or a random basis, as a condition to renewal of permits under this section, that applicants undergo practice reviews conducted no more frequently than once every three years in such manner and producing such satisfactory result as the board specifies; provided that any such requirement must be adopted reasonably in advance of the time when it is first required to be met and must include reasonable provision for compliance by an applicant’s showing that it has undergone a satisfactory review performed for other purposes which was substantially equivalent to practice reviews generally required under this subsection and completion of such review was within the three years immediately preceding the renewal period.

Source: S.L. 1993, ch. 417, § 7; 1999, ch. 372, § 5; 2009, ch. 357, § 4.

43-02.2-07. Licensed public accountants and firms of public accountants.

Persons who on July 1, 1993, hold licensed public accountant licenses issued under prior law of this state are entitled to have those licenses renewed provided that they fulfill all requirements for renewal under this section and subsections 13 and 15 of section 43-02.2-04. Firm licensees that hold valid permits to practice are entitled to engage in the practice of public accountancy to the same extent and with the same requirements as other holders of such permits and are entitled to use the designations “licensed public accountant” and “LPA”, but no other designation, in connection with the practice of public accountancy. Licensed public accountant licenses and firm permits must be renewed annually, with renewal subject to payment of fees and any other requirements prescribed by the board.

Source: S.L. 1993, ch. 417, § 8; 1999, ch. 372, § 6.

Collateral References.

Tax returns: construction and application of statutory provisions respecting persons who may prepare tax returns for others, 10 A.L.R.2d 1443.

Liability of public accountant, 54 A.L.R.2d 324.

Contracts: recovery back of money paid to unlicensed person required by law to have occupation or business license or permit to make contract, 74 A.L.R.3d 637.

Accountant’s malpractice liability to client, 92 A.L.R.3d 396.

Validity, construction, and application of statute or regulation restricting use of terms, such as “accountant,” “public accountant,” or “certified public accountant,” 4 A.L.R.4th 1201.

Liability of independent accountant to investors or shareholders, 48 A.L.R.5th 389.

43-02.2-08. Appointment of secretary of state as agent.

Application by a person or a firm not a resident of this state for a certificate under section 43-02.2-04 or a permit to practice under section 43-02.2-06 constitutes appointment of the secretary of state as the applicant’s agent upon whom process may be served in any action or proceeding against the applicant arising out of any transaction or operation connected with or incidental to services performed within this state by the applicant.

Source: S.L. 1993, ch. 417, § 9; 1999, ch. 372, § 7.

43-02.2-09. Enforcement against licensees.

  1. The board may revoke any certificate, license, practice privilege, or permit issued under this chapter or corresponding provisions of prior law; suspend any such certificate, license, practice privilege, or permit or refuse to renew any such certificate, license, practice privilege, or permit for a period of not more than five years; reprimand, censure, or limit the scope of practice of any licensee or holder of a practice privilege; impose an administrative fine not exceeding one thousand dollars; or place any licensee or holder of a practice privilege on probation, all with or without terms, conditions, and limitations, for any one or more of the following reasons:
    1. Fraud or deceit in obtaining a certificate, license, practice privilege, or permit;
    2. Cancellation, revocation, suspension, or refusal to renew a certificate, license, practice privilege, or permit in any other state or jurisdiction for any cause;
    3. Failure, on the part of a holder of a certificate, license, practice privilege, or permit, to maintain compliance with the requirements for issuance or renewal of such certificate, license, practice privilege, or permit or to report changes to the board under section 43-02.2-04, 43-02.2-06, or 43-02.2-07;
    4. Revocation or suspension of the right to practice before any state or federal agency;
    5. Dishonesty, fraud, or gross negligence in the performance of services as a licensee or in the filing or failure to file the licensee’s own income tax returns;
    6. Violation of any provision of this chapter or rule adopted by the board under this chapter;
    7. Violation of any rule of conduct adopted by the board under section 43-02.2-03;
    8. Conviction of a felony, or of any crime an element of which is dishonesty or fraud, under the laws of the United States, of this state, or of any other state if the acts involved would have constituted a crime under the laws of this state;
    9. Performance of any fraudulent act while holding a certificate, license, practice privilege, or permit issued under this chapter or prior law;
    10. Any conduct reflecting adversely upon the licensee’s fitness to perform services while a licensee; and
    11. Making any false or misleading statement or verification, in support of an application for a certificate, license, or permit filed by another.
  2. In lieu of or in addition to any remedy specifically provided in subsection 1, the board may require of a licensee either or both of the following:
    1. A practice review conducted as the board specifies.
    2. Satisfactory completion of continuing education programs the board specifies.
  3. In any proceeding in which a remedy provided by subsection 1 or 2 is imposed, the board may require the respondent licensee to pay the costs of the proceeding.

Source: S.L. 1993, ch. 417, § 10; 1999, ch. 372, § 8; 2009, ch. 357, § 5.

Collateral References.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-02.2-10. Enforcement procedures — Investigations.

If this chapter authorizes the board to revoke, deny, or suspend the certificate, license, practice privilege, or permit of any licensee or holder of a practice privilege, the individual or firm has a right to a hearing before the board on such contemplated disciplinary action and has a right to appeal to the courts from the decision of the board on the hearing. All of the provisions of chapter 28-32 relating to proceedings before an administrative agency are applicable to and govern the notice of hearing, the hearing, and the right of appeal from the board’s decision. During the investigation of any complaint or other information suggesting violations of this chapter, the report of the investigating officer, the complaint, if any, the testimony and documents submitted in support of the complaint or gathered in the investigation, and the fact of the pending investigation must be treated as confidential information and may not be disclosed to any person except law enforcement authorities and, to the extent deemed necessary in order to conduct the investigation, the subject of the investigation, persons whose complaints are being investigated, and witnesses questioned in the course of the investigation.

Source: S.L. 1993, ch. 417, § 11; 2009, ch. 357, § 6.

43-02.2-11. Reinstatement.

  1. If the board has suspended, refused to renew, or revoked a certificate, license, practice privilege, or a permit, the board may modify the suspension or reissue the certificate, license, practice privilege, or permit upon application in writing by the person or firm affected and for good cause shown and payment of a fee established by the board.
  2. The board shall specify by rule the manner in which applications for reinstatement must be made, the times within which they must be made, and the circumstances in which hearings on applications will be held.
  3. Before reissuing or terminating the suspension of a certificate, license, practice privilege, or permit under this section, the board may require the applicant to show successful completion of specified continuing education and may make the reinstatement conditional and subject to specified conditions, including satisfactory completion of a practice review conducted as specified by the board.

Source: S.L. 1993, ch. 417, § 12; 1999, ch. 372, § 9; 2009, ch. 357, § 7.

43-02.2-12. Unlawful acts.

  1. A person or firm that is not a licensee or otherwise authorized to practice in this state under subsection 1 of section 43-02.2-04.1 or subdivision b of subsection 1 of section 43-02.2-06 may not practice or offer to practice public accountancy or issue a report on financial statements of any other person, firm, organization, or governmental unit. Individual licensees may not practice public accountancy unless they do so within a firm that holds a permit issued under this chapter or is otherwise exempt from the firm permit requirement. These prohibitions do not apply to an officer, partner, or employee of any firm or organization affixing the person’s name or signature to any statement or report in reference to the financial affairs of such firm or organization with any wording designating the position, title, or office that the signer holds therein, does not prohibit any act of a public official or employee in the performance of duties as such, and does not prohibit the performance by any persons of other services involving the use of accounting skills, including the preparation of tax returns, management advisory services, and the preparation of financial statements without the issuance of reports thereon. This prohibition does not apply to transactions between manufacturing and sales organizations and their customers when accounting services accompany the sale of products provided that such accounting services are incidental and that any financial report made is clearly titled “unaudited financial report”.
  2. A person not holding a valid certificate or practice privilege issued under this chapter may not use or assume the title or designation “certified public accountant”, or the abbreviation “CPA” or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the person is a certified public accountant.
  3. A firm may not practice public accountancy or assume or use the title or designation “certified public accountant”, or the abbreviation “CPA”, or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the firm is a certified public accountant firm unless the firm holds a valid permit issued under this chapter or is otherwise exempt from the firm permit requirement.
  4. A person may not assume or use the title or designation “licensed public accountant” or the abbreviation “LPA”, or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the person is a licensed public accountant unless the person is registered as provided in section 43-02.2-07.
  5. A firm may not practice public accountancy, or assume or use the title or designation “licensed public accountant”, the abbreviation “LPA”, or any other title, designation, words, letters, abbreviation, sign, card, or device tending to indicate that the firm is a licensed public accountant firm unless the firm holds a valid permit issued under this chapter or is otherwise exempt from the firm permit requirement.
  6. A person or firm not holding a valid certificate, license, practice privilege, or permit issued under this chapter or otherwise exempt from the firm permit requirement may not assume or use the title or designation “certified accountant”, “chartered accountant”, “enrolled accountant”, “licensed accountant”, “public accountant”, “registered accountant”, “accredited accountant”, or any other title or designation likely to be confused with the titles “certified public accountant” or “licensed public accountant”, or use any of the abbreviations “CA”, “LA”, “PA”, “RA”, “AA”, or similar abbreviation likely to be confused with the abbreviations “CPA” or “LPA”.
  7. A person or firm not holding a valid certificate, license, practice privilege, or permit issued under this chapter or otherwise exempt from such requirement may not assume or use any title or designation that includes the words “accountant”, “auditor”, or “accounting”, or other terms in any manner that implies such person or firm holds such a certificate, license, or permit or has special competence as an accountant or auditor. This subsection does not prohibit any officer, partner, or employee of any firm or organization from affixing the person’s name or signature to any reference to the financial affairs of such firm or organization with any wording designating the position, title, or office that the person holds and does not prohibit any act of a public official or employee in the performance of duties.
  8. A licensee may not use a professional or firm name or designation that is misleading. Names of one or more former partners or shareholders may be included in the name of a firm or its successor.
  9. This section does not apply to a person or firm holding a certification, designation, degree, or license granted in a foreign country entitling the holder to engage in the practice of public accountancy or its equivalent in that country, whose activities in this state are limited to the provision of professional services to persons or firms who are residents of, governments of, or business entities of the country in which the person or firm holds such entitlement. This subsection does not authorize issuing reports with respect to the financial statements of any other persons, firms, or governmental units in this state. A person or firm acting under the authority of this subsection may not use in this state any title or designation other than the one under which the person or firm practices in such country, followed by a translation of such title or designation into the English language, if it is in a different language, and by the name of such country.

Source: S.L. 1993, ch. 417, § 13; 1999, ch. 372, § 10; 2009, ch. 357, § 8.

43-02.2-13. Injunctions against unlawful acts.

If as a result of an investigation, the board believes that any person or firm has engaged, or is about to engage, in any acts or practices which constitute or will constitute a violation of this chapter, the board may make application to the appropriate court for an order enjoining such acts or practices, and upon a showing by the board that such person or firm has engaged, or is about to engage, in any such acts or practices, an injunction, restraining order, or other appropriate order must be granted by the court.

Source: S.L. 1993, ch. 417, § 14.

43-02.2-14. Criminal penalties.

  1. If by reason of an investigation, the board has reason to believe that any person or firm has knowingly engaged in acts or practices that constitute a violation of this chapter, the board may bring its information to the attention of a state’s attorney or the attorney general or other appropriate law enforcement officer who may cause appropriate criminal proceedings to be brought.
  2. Any person or firm who knowingly violates any provision of section 43-02.2-12 is guilty of a class A misdemeanor.

Source: S.L. 1993, ch. 417, § 15.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-02.2-15. Single act evidence of practice.

In any action brought under this chapter, evidence of the commission of a single act prohibited by this chapter is sufficient to justify a penalty, injunction, restraining order, or conviction, without evidence of a general course of conduct.

Source: S.L. 1993, ch. 417, § 16; 1999, ch. 372, § 11.

43-02.2-16. Confidential communications.

Except by permission of the client engaging a licensee under this chapter, or the heirs, successors, or personal representatives of such client, a licensee or any partner, officer, shareholder, or employee of a licensee may not voluntarily disclose information communicated to the licensee by the client relating to and in connection with services rendered to the client by the licensee. Such information is deemed confidential but this section may not be construed as prohibiting the disclosure of information required to be disclosed by the standards of the profession in reporting on the examination of financial statements or as prohibiting disclosures in court proceedings, in investigations or proceedings under section 43-02.2-09 or 43-02.2-10, in ethical investigations conducted by private professional organizations, or in the course of practice reviews, or to other persons active in the organization performing services for that client on a need-to-know basis or to persons in the entity who need this information for the sole purpose of assuring quality control.

Source: S.L. 1993, ch. 417, § 17; 1999, ch. 372, § 12.

43-02.2-17. Licensees’ working papers — Clients’ records.

  1. All statements, records, schedules, working papers, and memoranda made by a licensee or a partner, shareholder, officer, director, or employee of a licensee, incident to, or in the course of, rendering services to a client while a licensee, except the reports submitted by the licensee to the client and except for records that are part of the client’s records, are the property of the licensee in the absence of an express agreement between the licensee and the client to the contrary. A statement, record, schedule, working paper, or memorandum may not be sold, transferred, or bequeathed, without the consent of the client or the client’s personal representative or assignee, to anyone other than one or more surviving partners or stockholders or new partners or stockholders of the licensee, or any combined or merged firm or successor in interest to the licensee. This section may not be construed as prohibiting any temporary transfer of workpapers or other material necessary in the course of carrying out practice reviews.
  2. A licensee shall furnish to a client or former client, upon request and reasonable notice:
    1. A copy of the licensee’s working papers, to the extent that such working papers include records that would ordinarily constitute part of the client’s records and are not otherwise available to the client; and
    2. Any accounting or other records belonging to, or obtained from or on behalf of, the client that the licensee removed from the client’s premises or received for the client’s account. The licensee may make and retain copies of such documents of the client when they form the basis for work done by the licensee.
  3. This section does not require a licensee to keep any workpaper beyond the period prescribed in any other applicable statute.

Source: S.L. 1993, ch. 417, § 18; 1999, ch. 372, § 13.

43-02.2-18. Uniform statute of limitations.

    1. This section applies to all causes of action of the type specified in this section filed on or after August 1, 1993.
    2. This section governs any action based on negligence or breach of contract brought against any accountant, any partnership of accountants, any accounting corporation, or any other legal entity of accountants registered, licensed, or practicing in this state by any person or entity claiming to have been injured as a result of financial statements or other information examined, compiled, reviewed, certified, audited, or otherwise reported or opined on by the defendant accountant as a result of an engagement to provide public accounting services.
  1. An action covered by this section may not be brought in any court in this state unless the suit is commenced on or before the earlier of:
    1. Two years from the date the alleged act, omission, or neglect is discovered or should have been discovered by the exercise of reasonable diligence; or
    2. Six years after the service for which the suit is brought has been performed or the date of the initial issuance of the accountant’s report on the financial statements or other information, whichever comes first.

Source: S.L. 1993, ch. 417, § 19.

CHAPTER 43-03 Architects and Landscape Architects

43-03-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Architect” means an individual who is registered as an architect under this chapter.
  2. “Board” means the state board of architecture and landscape architecture.
  3. “Landscape architect” means an individual who is registered as a landscape architect under this chapter.
  4. “Landscape architecture” does not include the practice of engineering and practice of professional engineering as defined under section 43-19.1-02.
  5. “Practice of architecture” means rendering or offering to render service to clients generally, including any one or any combination of the following practices or professional services: advice, consultation, planning, architectural design, drawings, and specifications; and general administration of the contract as the owner’s representative during the construction phase in which expert knowledge and skill are required in connection with the erection, enlargement, or alteration of any building, or the equipment, or utilities thereof, or the accessories thereto if the safeguarding of the public health, safety, or welfare is concerned or involved. The term includes the making of architectural plans and specifications for buildings.
  6. “Practice of landscape architecture” means rendering or offering to render service to clients generally, including any one or any combination of the following practices or professional services: advice, consultation, planning, landscape architectural design, drawings, and specifications; and general administration of the contract as the owner’s representative during the construction phase in which expert knowledge and skill are required in connection with landscape enhancement or landscape development, including the formulation of graphic or written criteria to govern the planning or design of land construction projects, production of overall site plans, landscape grading, and landscape drainage plans, planting plans, irrigation plans, and construction details if the safeguarding of the public health, safety, or welfare is concerned or involved.

Source: R.C. 1943, § 43-0301; S.L. 1973, ch. 345, § 1; 2003, ch. 356, § 1; 2009, ch. 358, § 1.

Notes to Decisions

Sufficiency of Documentation.

City building official did not misapprehend the intent and application of N.D.C.C. §§ 43-03-01 and 43-03-22 regarding the sufficiency of the documentation submitted by the building permit applicant where the proposed facility was properly classified as Group I-1, and there no evidence that the submitted plans were drawn by a registered architect or that they were impressed with the stamp or appropriate indications by a lawful certificate holder. Hale v. City of Minot, 2015 ND 216, 868 N.W.2d 870, 2015 N.D. LEXIS 224 (N.D. 2015).

43-03-02. Persons exempt from regulations.

  1. The architect registration provisions of this chapter do not apply to:
    1. A person supervising the erection, enlargement, or alteration of a building; or
    2. A person preparing plans and specifications or designing, planning, or administering the construction contracts for the construction, alteration, remodeling, or repair of:
      1. A private residence;
      2. A building that under applicable building code does not exceed two stories in height exclusive of a one-story basement, and is:
        1. A garage;
        2. A building not considered to have a primary building code occupancy classification of assembly group A-1, educational group E, high-hazard group H, or institutional group I;
        3. A building considered to have a primary building code occupancy classification of assembly groups A-2, A-3, A-4, or A-5; business group B; factory industrial group F; mercantile group M; or residential group R;
        4. A pre-engineered metal building;
        5. A building for the marketing, storage, or processing of farm products; or
        6. A warehouse;
      3. Rental apartment units that do not exceed three stories in height exclusive of a one-story basement;
      4. A farm building; or
      5. A building remodeling or an addition or both, which does not change its use to a primary building code occupancy classification of assembly group A-1, educational group E, high-hazard group H, or institutional group I.
  2. The landscape architect registration provisions of this chapter do not apply to:
    1. An architect, a professional engineer, or a land surveyor in the course of providing professional services for which otherwise licensed or registered;
    2. A nursery worker, gardener, landscape designer, or landscape contractor in the course of preparing planting plans or installing plant material, to the extent these activities do not impact the public health, safety, or welfare;
    3. An individual in the course of planning or otherwise caring for that individual’s property; or
    4. An irrigation designer, contractor, or service provider in the course of preparing irrigation plans or installing, repairing, or maintaining irrigation systems.
  3. This chapter does not:
    1. Apply to an officer or employee of the United States government while engaged in governmental work in this state;
    2. Curtail or extend the right of any other profession regulated in this state;
    3. Prevent the independent employment of a registered professional engineer for any professional service related solely to civil, structural, mechanical, or electrical engineering in connection with any building or building project; or
    4. Supersede, override, or amend the provisions of chapter 43-19.1 regarding registration of professional engineers and land surveyors or chapter 43-07 regarding registration of contractors.

Source: S.L. 1917, ch. 58, §§ 16, 17; 1923, ch. 130, § 1; 1925 Supp., §§ 2997a16, 2997a17; R.C. 1943, § 43-0302; S.L. 1979, ch. 187, § 83; 2003, ch. 356, § 2; 2009, ch. 358, § 2; 2011, ch. 305, § 1.

43-03-03. State board of architecture and landscape architecture — Members — Term of office — How vacancies filled.

The state board of architecture and landscape architecture consists of three members appointed by the governor for terms of six years each with their terms of office so arranged that one term and only one expires on March fourteenth of each odd-numbered year. Each member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until that member’s successor is appointed and qualified, and any vacancy occurring in the board must be filled by the governor for the unexpired term.

Source: S.L. 1917, ch. 58, §§ 1, 3, 4; 1925 Supp., §§ 2997a1, 2997a3, 2997a4; R.C. 1943, § 43-0303; 2009, ch. 358, § 3.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-03-04. Qualifications of members of board — Removal of members.

Each member of the board must be a resident of this state who is an architect who has been a resident of and in active practice in this state as an architect for not less than five years before appointment. The governor may remove any member of the board for inefficiency or neglect of duty.

Source: S.L. 1917, ch. 58, §§ 1, 5; 1925 Supp., §§ 2997a1, 2997a5; R.C. 1943, § 43-0304; S.L. 1973, ch. 345, § 2; 2009, ch. 358, § 4.

43-03-05. Meetings of board — Officers elected.

  1. The board shall hold regular meetings at least once each year, with the date and location set by the board. The board may meet as designated by a majority of the board. The board shall select from among its members a president and a secretary-treasurer.
  2. The board may:
    1. Administer an oath;
    2. Take an affidavit;
    3. Summon a witness;
    4. Take testimony as to matters coming within the scope of the board’s duties;
    5. Enter an interstate or intrastate agreement or association with other boards of licensure for the purpose of establishing reciprocity, developing examinations, evaluating applicants, or other activities to enhance the services of the board to the state, the registrant, or the public; and
    6. Appoint or contract an executive director and any other individual the board determines is necessary to administer the affairs of the board.
  3. The board shall:
    1. Adopt a seal to be affixed to each certificate of registration issued by the board;
    2. Issue certificates of registration to qualified applicants; and
    3. Adopt rules in accordance with chapter 28-32.
  4. The secretary-treasurer shall keep a record of the proceedings of the board.

Source: S.L. 1917, ch. 58, § 7; 1925 Supp., § 2997a7; R.C. 1943, § 43-0305; 2009, ch. 358, § 5.

43-03-06. Salary of executive director — Expenses of board.

  1. If the board appoints or contracts an executive director, the executive director is entitled to receive such salary as fixed by a resolution of the board adopted at a regular meeting, and is entitled to receive reimbursement for travel, lodging, and other expenses as are incurred legitimately in the performance of the executive director’s official duties.
  2. Each member of the board is entitled to receive a per diem of seventy-five dollars for each day or portion of a day spent in the discharge of the member’s duties, such mileage as is provided for by section 54-06-09, and is entitled to reimbursement for the member’s actual and necessary expenses incurred in the discharge of the member’s official duties.
  3. The expenses of the board at no time may exceed the amount of moneys received and on deposit to the credit of the board under the provisions of this chapter.

Source: S.L. 1917, ch. 58, §§ 9 to 11; 1925 Supp., § 2997a9 to 2997a11; R.C. 1943, § 43-0306; S.L. 1973, ch. 345, § 3; 2009, ch. 358, § 6.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-03-07. Deposit of fees — Separate fund — Vouchers. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-03-08. Board to adopt rules.

The board shall adopt rules:

  1. To govern board proceedings.
  2. For the examination of candidates for registration.
  3. For the regulation of the practice of architecture and landscape architecture.
  4. For education requirements of registration applicants.
  5. For practical experience requirements of registration applicants.

Source: S.L. 1917, ch. 58, § 6; 1925 Supp., § 2997a6; R.C. 1943, § 43-0308; S.L. 2003, ch. 356, § 3; 2009, ch. 358, § 7.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-03-09. Prohibited acts — Injunction.

  1. A person may not practice architecture in this state unless registered as an architect under this chapter or otherwise authorized by the board. A person may not practice landscape architecture in this state unless registered as a landscape architect under this chapter or otherwise authorized by the board.
  2. A person may not fraudulently obtain or furnish a certificate of registration to practice architecture or landscape architecture.
  3. A person that is not registered under this chapter may not:
    1. Advertise, represent, or in any manner hold that person out as an architect or landscape architect;
    2. In connection with the person’s business or name, or otherwise, assume, use, or advertise any term, title, or description or engage in any other conduct that reasonably might be expected to mislead another to believe the person is an architect or landscape architect; or
    3. Except as a copartnership of architects, engage in the solicitation of architecture or landscape architecture services as an individual or corporation.
  4. Through the attorney general, the board may seek to enjoin a person from committing an act in violation of this chapter. The board is not required to prove irreparable injury to enjoin a violation of this chapter.

Source: S.L. 1917, ch. 58, § 15; 1919 Sp., ch. 17, § 1; 1925 Supp., § 2997a15; R.C. 1943, § 43-0309; S.L. 2003, ch. 356, § 4; 2009, ch. 358, § 8; 2011, ch. 305, § 2.

Notes to Decisions

Corporation.

Corporation could not be registered and could not practice architecture. State Bd. of Arch. v. Kirkham, Michael & Assocs., 179 N.W.2d 409 (N.D. 1970), decided prior to 1971 amendment of N.D.C.C. § 10-31-04 to specifically mention this chapter.

Collateral References.

Responsibility of one acting as architect for defects or insufficiency of work attributable to plans, 25 A.L.R.2d 1085.

Liability of architect for improper issuance of certificate, 43 A.L.R.2d 1227.

Corporation’s practice of architecture, 56 A.L.R.2d 726.

Architectural services: what amounts to architectural or engineering services within license requirements, 82 A.L.R.2d 1013.

Compensation: right of architect or engineer licensed in one state to recover compensation for services rendered in another state, or in connection with construction in another state, where he was not licensed in the latter state, 32 A.L.R.3d 1151.

Liability to one injured in course of construction, based on architect’s alleged failure to carry out supervisory responsibilities, 59 A.L.R.3d 869.

Tort liability of project architect for economic damages suffered by contractor, 65 A.L.R.3d 249.

Architect’s liability for personal injury or death allegedly caused by improper or defective plans or designs, 97 A.L.R.3d 455.

Event triggering liability insurance coverage as occurring within period of time covered by liability insurance policy where injury or damage is delayed—modern cases, 14 A.L.R.5th 695.

Validity, as to Claim Alleging Design or Building Defects, of Statute Imposing Time Limitations Upon Action Against Architect, Engineer, or Builder for Injury or Death Arising out of Defective or Unsafe Condition of Improvement to Real Property, 5 A.L.R.6th 497.

Necessity and Admissibility of Expert Testimony to Establish Malpractice or Breach of Professional Standard of Care by Architect, 47 A.L.R.6th 303.

Tort Liability of Project Architect or Engineer for Economic Damages Suffered by Contractor or Subcontractor, 61 A.L.R.6th 445.

43-03-10. Regulation of use of titles.

  1. A person may not use the title or designation “architect”, “registered architect”, “licensed architect”, any variation of those terms, or any other words, letters, or device to indicate that person is an architect authorized to practice architecture in this state unless that person is registered as an architect under this chapter. In a copartnership of architects, each member of the partnership shall hold a certificate of registration to practice.
  2. A person may not use the title or designation “landscape architect”, “registered landscape architect”, “licensed landscape architect”, any variation of those terms, or any other words, letters, or device to indicate that person is a landscape architect authorized to practice landscape architecture in this state unless that person is registered as a landscape architect under this chapter.
  3. This chapter does not authorize a landscape architect to use the title “architect” or to practice architecture.

Source: S.L. 1917, ch. 58, §§ 15, 19; 1919 Sp., ch. 17, § 1; 1925 Supp., §§ 2997a15, 2997a19; R.C. 1943, § 43-0310; S.L. 2003, ch. 356, § 5; 2009, ch. 358, § 9.

Collateral References.

Corporation’s practice of architecture, 56 A.L.R.2d 726.

43-03-11. Application for examination — Fee.

Before an individual may take the examination for registration as an architect or a landscape architect, that individual shall make an application to the board submitting satisfactory evidence of having the required qualifications and shall pay an examination fee of not more than one hundred dollars. If an applicant fails to pass the examination, at the next regularly scheduled examination the applicant may take a partial or entire re-examination as determined appropriate by the board. An applicant shall pay a re-examination fee of not more than one hundred dollars for a re-examination. The fee for re-examination may be waived in whole or in part by the board.

Source: S.L. 1917, ch. 58, §§ 18, 20; 1925 Supp., §§ 2997a18, 2997a20; R.C. 1943, § 43-0311; S.L. 1973, ch. 345, § 4; 2003, ch. 356, § 6; 2009, ch. 358, § 10.

43-03-12. Board to issue certificates of registration. [Repealed]

Repealed by S.L. 2009, ch. 358, § 20.

43-03-13. Qualifications.

An applicant for registration as an architect or landscape architect:

  1. Must be at least eighteen years of age;
  2. Must be of good moral character, with rejection possible on the basis of:
    1. Conviction of an offense determined by the board to have a direct bearing upon an applicant’s ability to serve the public as an architect or a landscape architect, or the board determines, following conviction of an offense, that the applicant is not sufficiently rehabilitated under section 12.1-33-02.1;
    2. Misstatement or misrepresentation of fact by the applicant in connection with that individual’s application; or
    3. Violation of any of the standards of conduct required of registrants;
  3. Must have successfully completed an examination for registration;
  4. In the case of an architect, must hold a professional degree in architecture from an accredited school of architecture and must have the required practical experience, as established by the board;
  5. In the case of a landscape architect, must hold a professional degree in landscape architecture from an accredited school of landscape architecture and must have the required practical experience, as established by the board; and
  6. Must satisfy registration criteria adopted by the board.

Source: S.L. 1917, ch. 58, §§ 18, 20; 1925 Supp., §§ 2997a18, 2997a20; R.C. 1943, § 43-0313; S.L. 1973, ch. 345, § 5; 1977, ch. 130, § 16; 2003, ch. 356, § 8; 2009, ch. 358, § 11.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Notes to Decisions

Applicant As Corporate Employee.

It was improper for board to deny architect a license because at the time of his application he was an employee of a corporation and board anticipated that he would illegally practice architecture as an employee of a corporation. Guariglia v. North Dakota State Bd. of Architecture, 268 N.W.2d 478, 1978 N.D. LEXIS 170 (N.D. 1978).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-03-14. Examination.

  1. Before an applicant may be registered as an architect, the applicant shall pass satisfactorily an examination established by the board.
  2. Before an applicant may be registered as a landscape architect, the applicant shall pass satisfactorily an examination established by the board.
  3. The board may administer an examination or may recognize a board-approved examination of a nationally recognized entity.

Source: S.L. 1917, ch. 58, §§ 21 to 25; 1925 Supp., §§ 2997a21 to 2997a25; R.C. 1943, § 43-0314; S.L. 1973, ch. 345, § 6; 2009, ch. 358, § 12.

43-03-15. When examination not necessary.

The board may admit a nonresident applicant seeking to register to practice architecture or landscape architecture in North Dakota without requiring the applicant to pass an examination if the applicant is licensed or registered to practice architecture or landscape architecture under the laws of any other state that has requirements substantially equal to those provided for under this chapter. An applicant under this section shall pay the fees provided for under section 43-03-18.

Source: S.L. 1917, ch. 58, § 26; 1925 Supp., § 2997a26; S.L. 1941, ch. 182, § 1; R.C. 1943, § 43-0315; S.L. 1973, ch. 345, § 7; 2009, ch. 358, § 13; 2011, ch. 305, § 3.

Notes to Decisions

Discretion of Board.

Use of the phrase “may be admitted to practice” in this section does not give the board discretion to deny a license to an otherwise qualified applicant; and the discretion the board does have is limited to determining whether or not to waive the examination requirement for a nonresident applicant. Guariglia v. North Dakota State Bd. of Architecture, 268 N.W.2d 478, 1978 N.D. LEXIS 170 (N.D. 1978).

43-03-16. Result of examinations recorded — List of certificate holders.

The result of every examination for registration as an architect or a landscape architect and the evidence of qualifications must be recorded by the secretary-treasurer of the board. The secretary-treasurer of the board shall maintain a list of architects and landscape architects certified under this chapter. This list of certificate holders must contain each certificate holder’s name, current business address, certification number, and the expiration date of the certificate.

Source: S.L. 1917, ch. 58, §§ 28, 30; 1925 Supp., §§ 2997a28, 2997a30; R.C. 1943, § 43-0316; S.L. 1967, ch. 98, § 33; 1973, ch. 345, § 8; 1975, ch. 395, § 1; 2003, ch. 356, § 9; 2009, ch. 358, § 14.

43-03-17. Certificates of registration — Term.

An initial certificate of registration as an architect or a landscape architect expires on June thirtieth of the year following the date of issuance. A renewed certificate of registration is valid for two years.

Source: S.L. 1917, ch. 58, §§ 29, 32; 1925 Supp., §§ 2997a29, 2997a32; S.L. 1941, ch. 182, § 2; R.C. 1943, § 43-0317; S.L. 2003, ch. 356, § 10; 2009, ch. 358, § 15.

43-03-18. Fees.

  1. The following fees apply to architects and landscape architects:
    1. Following examination, a registration fee of not more than three hundred dollars, as set by the board.
    2. When examination is not necessary under section 43-03-15, a registration fee of not more than three hundred dollars, as set by the board.
    3. A registration renewal fee, which need not be collected annually, but which must be based on no more than three hundred dollars per year, as set by the board.
    4. Fees set by the board under this subsection are not subject to chapter 28-32.
  2. If in any year the board incurs expenses related to regulation of architects and landscape architects which are in excess of the income generated through fees for that year, the board may assess a special fee to cover these excess expenses. The board may continue an annual special fee assessed under this subsection until the excess obligations are met. A certificate holder who fails to pay a special fee assessed by the board under this subsection is subject to the forfeiture provisions under section 43-03-19.
  3. Fees set by the board may not exceed the amount reasonably necessary to regulate the professions of architecture and landscape architecture.

Source: S.L. 1917, ch. 58, §§ 29, 32; 1925 Supp., §§ 2997a29, 2997a32; S.L. 1941, ch. 182, § 2; R.C. 1943, § 43-0318; S.L. 1973, ch. 345, § 9; 1983, ch. 470, § 1; 2003, ch. 356, § 11; 2009, ch. 358, § 16.

Cross-References.

Application and reexamination fees, see N.D.C.C. § 43-03-11.

Fee when renewal fee not paid when due, see N.D.C.C. § 43-03-19.

43-03-19. Renewal — Forfeiture.

  1. A holder of a certificate of registration as an architect or a landscape architect shall apply to renew the certificate and pay the associated renewal fee or a special fee when due. Application for renewal must be accompanied by evidence satisfactory to the board of compliance with this chapter. Failure of a certificate holder to timely renew the certificate and pay the associated renewal fee before the expiration of the certificate results in forfeiture of the certificate.
  2. At least two months before the date of the expiration of a certificate of registration, the secretary-treasurer shall notify the certificate holder of the upcoming expiration and at least two weeks before the expiration date the secretary-treasurer shall notify any outstanding certificate holders by certified mail, at the certificate holder’s last-known address, of the upcoming expiration and resulting forfeiture.

Source: S.L. 1917, ch. 58, § 33; 1925 Supp., § 2997a33; S.L. 1941, ch. 182, § 3; R.C. 1943, § 43-0319; S.L. 1973, ch. 345, § 10; 1983, ch. 470, § 2; 2003, ch. 356, § 12; 2009, ch. 358, § 17.

43-03-20. Revocation, denial, or suspension of registration.

If the board revokes, denies, or suspends the certificate of registration or application of a certificate holder or applicant for certificate, the certificate holder or applicant has a right to a hearing before the board on such contemplated disciplinary action and has a right to appeal to the courts from the decision of the board on the hearing. All of the provisions of chapter 28-32 relating to proceedings before an administrative agency are applicable to and govern the notice of hearing, the hearing, and the right of appeal from the board’s decision. The board may revoke, deny, or suspend any certificate of registration of or application to be an architect or a landscape architect upon proof:

  1. The certificate was obtained or attempted to be obtained by fraud, deceit, or material misrepresentation of fact in applying for a certificate or renewal of a certificate or in passage of the examination under this chapter;
  2. The holder of the certificate has been guilty of malfeasance, deceit, fraud, gross incompetency, or negligence in connection with the holder’s practice of architecture or landscape architecture;
  3. The holder of the certificate has exhibited mental incompetency, untrustworthiness, incompetency, or misconduct in the practice of architecture or landscape architecture as evidenced by conduct that endangers life, health, property, or the public welfare.
  4. The holder of the certificate allowed a nonregistered person to practice as an architect by the device of permitting the certificate holder’s name or stamp to be placed upon drawings, or other contract documents, not prepared by the holder or under the holder’s direct supervision;
  5. The holder of the certificate or applicant had an architecture or a landscape architecture license of another state suspended or revoked or was otherwise disciplined by another state;
  6. The holder of the certificate or applicant was convicted of an offense determined by the board to have a direct bearing upon the certificate holder’s or applicant’s ability to serve the public as an architect or landscape architect; or that, following conviction of an offense, the holder or applicant is not sufficiently rehabilitated under section 12.1-33-02.1; or
  7. The holder of the certificate or applicant violated this chapter or rules adopted under this chapter. If a certificate holder or applicant is convicted of a crime in another state which would constitute a violation of this chapter had the criminal action taken place in this state, a copy of the judgment of conviction certified by the rendering court is presumptive evidence of the conviction in any hearing under this section. For purposes of this subsection, a conviction includes a plea of nolo contendere or its equivalent.

Source: S.L. 1917, ch. 58, § 31; 1925 Supp., § 2997a31; R.C. 1943, § 43-0320; S.L. 1973, ch. 345, § 11; 1977, ch. 130, § 17; 2003, ch. 356, § 13; 2009, ch. 358, § 18.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-03-21. Penalty.

Any person willfully violating this chapter is guilty of a class B misdemeanor.

Source: S.L. 1917, ch. 58, § 34; 1925 Supp., § 2997a34; R.C. 1943, § 43-0321; S.L. 1973, ch. 345, § 12; 1975, ch. 106, § 470; 2003, ch. 356, § 14.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-03-22. Stamp.

At the time of the issuance of the certificate of registration, the board shall require the certificate holder to acquire, at the certificate holder’s expense, a stamp or indicia to be used by the certificate holder in the conduct of the certificate holder’s practice and to be impressed upon drawings, plans, and other documents prepared by the certificate holder. The board shall adopt rules governing the technical requirements of such stamp and indicia and the certificate holder’s signature.

Source: S.L. 1973, ch. 345, § 13; 2003, ch. 356, § 15; 2009, ch. 358, § 19.

Notes to Decisions

Sufficiency of Documentation.

City building official did not misapprehend the intent and application of N.D.C.C. §§ 43-03-01 and 43-03-22 regarding the sufficiency of the documentation submitted by the building permit applicant where the proposed facility was properly classified as Group I-1, and there no evidence that the submitted plans were drawn by a registered architect or that they were impressed with the stamp or appropriate indications by a lawful certificate holder. Hale v. City of Minot, 2015 ND 216, 868 N.W.2d 870, 2015 N.D. LEXIS 224 (N.D. 2015).

43-03-23. Liability for contractor’s fault — Liability for own negligence.

An architect or a landscape architect is not liable for the safety of persons or property on or about a construction project site, or for the construction techniques, procedures, sequences and schedules or for the conduct, action, errors, or omissions of any construction contractor, subcontractor, or material supplier, their agents or their employees, unless the architect or landscape architect assumes responsibility therefor by contract or by the architect’s or landscape architect’s actual conduct. This section does not relieve an architect or a landscape architect from liability from the architect’s or landscape architect’s negligence, whether in the architect’s or landscape architect’s design work or otherwise.

Source: S.L. 1979, ch. 458, § 1; 2003, ch. 356, § 16.

Collateral References.

Validity, as to Claim Alleging Design or Building Defects, of Statute Imposing Time Limitations Upon Action Against Architect, Engineer, or Builder for Injury or Death Arising out of Defective or Unsafe Condition of Improvement to Real Property, 5 A.L.R.6th 497.

Necessity and Admissibility of Expert Testimony to Establish Malpractice or Breach of Professional Standard of Care by Architect, 47 A.L.R.6th 303.

Tort Liability of Project Architect or Engineer for Economic Damages Suffered by Contractor or Subcontractor, 61 A.L.R.6th 445.

43-03-24. Landscape architect and architect advisory committees. [Repealed]

Repealed by S.L. 2009, ch. 358, § 20.

43-03-25. Use of additional funds for landscape architect regulation. [Repealed]

Repealed by S.L. 2009, ch. 358, § 20.

CHAPTER 43-04 Barbers

43-04-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the board of barber examiners.
  2. “Practice of barbering” includes any one or any combination of the following practices when done upon the upper part of the human body for cosmetic purposes and not for the treatment of diseases or physical or mental ailments, and when done for payment either directly or indirectly:
    1. Shaving or trimming the beard or cutting the hair.
    2. Giving facial or scalp massages or treatments with oils, creams, lotions, or other preparations either by hand or mechanical appliances.
    3. Singeing, shampooing, or dyeing the hair or applying hair tonics.
    4. Applying cosmetic preparations, antiseptics, powders, oils, clays, or lotions to scalp, face, neck, or upper part of the body.

Source: S.L. 1901, ch. 30, § 13; R.C. 1905, § 362; C.L. 1913, § 571; S.L. 1927, ch. 101, § 2; 1943, ch. 93, § 2; R.C. 1943, § 43-0401.

Cross-References.

Hairdressers and cosmetologists, see N.D.C.C. ch. 43-11.

43-04-02. Declaration of policy.

It is hereby declared that the practice of barbering, by reason of the personal contacts exercised therein, is a business affecting the public health, public welfare, and public safety, that immediate public supervision and control of said occupation in the exercise of the police power of this state and in accordance with the proper standards of said profession, are necessary to the protection and preservation of the public health, public safety, and public welfare, and that this chapter is enacted in the exercise of the police power of this state to protect the public welfare, public health, and public safety.

Source: S.L. 1943, ch. 93, § 1; R.C. 1943, § 43-0402; S.L. 1979, ch. 459, § 1.

Collateral References.

Price schedules for barbers, validity of statute establishing or authorizing, 54 A.L.R.3d 916.

Law Reviews.

Some Phases of 1927 Legislation in North Dakota, 1 Dak. L. Rev. 65 (Issue No. III) (1927).

43-04-03. Exemptions.

The following persons, when engaged in the proper discharge of their occupational duties, are exempt from the provisions of this chapter:

  1. Persons authorized by the laws of this state to practice medicine and surgery.
  2. Commissioned medical or surgical officers of the United States army, navy, air force, or marine hospital service.
  3. Registered nurses.
  4. Registered hairdressers and cosmetologists.

The persons exempt by subsections 1, 2, and 3 may not shave nor trim the beard nor cut the hair of any person for cosmetic purposes.

Source: S.L. 1927, ch. 101, § 4; R.C. 1943, § 43-0403.

43-04-04. Board of barber examiners — Appointment — Term of office — Qualifications.

The board of barber examiners must consist of three members, each of whom must be appointed by the governor for a term of three years. The terms of office of the members must be so arranged that one term expires on the thirty-first day of December of each year. Each appointment must be made from a list of five names submitted to the governor by the state barber association, and each member must be a registered barber who has followed the occupation of barber in this state for at least five years prior to that member’s appointment.

Source: S.L. 1901, ch. 30, § 2; R.C. 1905, § 350; C.L. 1913, § 559; S.L. 1927, ch. 101, § 20; R.C. 1943, § 43-0404; S.L. 1973, ch. 346, § 2.

43-04-05. Oath of office — How vacancies filled — Removal.

Each member of the board shall qualify by taking the oath required for civil officers. A vacancy on the board must be filled by appointment by the governor for the unexpired term. Such appointment must be made from the list of five names submitted to the governor by the state barber association from which the original appointment was made. A member of the board may be removed by the governor for cause.

Source: S.L. 1901, ch. 30, § 2; R.C. 1905, § 350; C.L. 1913, § 559; S.L. 1927, ch. 101, § 20; R.C. 1943, § 43-0405; S.L. 1945, ch. 261, § 1; 1957 Supp., § 43-0405.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-04-06. Officers of board — Power to administer oath — Bond.

The members of the board shall elect from their number a president, vice president, and secretary-treasurer. The secretary-treasurer of the board must be bonded for the faithful discharge of duties in the penal sum of five thousand dollars. The secretary-treasurer and the president of the board may administer oaths.

Source: S.L. 1901, ch. 30, § 3; R.C. 1905, § 351; C.L. 1913, § 560; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0406; S.L. 1975, ch. 258, § 17.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14, and N.D.C.C. ch. 26.1-21.

43-04-07. Compensation — Expenses — How paid.

Each member of the board is entitled to receive daily compensation for actual services in an amount not to exceed one hundred dollars and must be paid for actual expenses, as provided by law, incurred in attending meetings of the board and in performing official duties. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source: S.L. 1901, ch. 30, § 4; R.C. 1905, § 352; C.L. 1913, § 561; S.L. 1927, ch. 101, § 21; 1943, ch. 92, § 6; R.C. 1943, § 43-0407; S.L. 1947, ch. 294, § 1; 1957, ch. 294, § 1; 1957 Supp., § 43-0407; S.L. 1971, ch. 510, § 6; 1973, ch. 346, § 3; 1979, ch. 459, § 2; 1997, ch. 363, § 1; 2017, ch. 284, § 1, effective August 1, 2017.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-04-08. Expenses — How paid. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-04-09. Headquarters of board — Board to adopt seal — Quorum.

The board shall have its headquarters at such suitable place as may be designated by it. It shall adopt and use a common seal for the authentication of its orders and records. The majority of the members of the board in a meeting duly assembled may perform and exercise all the duties and powers imposed upon the board.

Source: S.L. 1901, ch. 30, § 3; R.C. 1905, § 351; C.L. 1913, § 560; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0409.

43-04-10. Board to employ necessary inspectors and assistants.

The board may employ such inspectors, clerks, and other assistants as it may deem necessary to carry out the provisions of this chapter.

Source: S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0410.

43-04-11. Rules and orders. [Effective through August 31, 2022]

The board may adopt and enforce all rules and orders necessary to carry out the provisions of this chapter:

  1. It may prescribe sanitary regulations for barbershops and barber schools. Such regulations shall be subject to the approval of the state department of health. A copy of the rules and regulations adopted by the board and approved by the state department of health shall be furnished by the board to the owner or manager of every barbershop and barber school and shall be posted by such owner or manager in a conspicuous place in such barbershop or barber school.
  2. Every other rule or order of the board shall be posted for public inspection in the main office of the board and a certified copy shall be filed in the office of the secretary of the board and published in the press publications representing the barber industry. An order applying only to a person or persons named therein shall be served on the person or persons affected. An order herein required shall be served by personal delivery of a certified copy or by mailing a certified copy in a sealed envelope with postage prepaid to each person affected thereby, or in the case of a corporation or limited liability company, to an officer, manager, or agent of the corporation or limited liability company upon whom a summons may be served in accordance with the provisions of law. The posting in the main office of the board of any rule or order not required by this chapter to be served, and such filing in the office of the secretary of the board and publishing in representative publications, shall constitute due and sufficient notice to all persons affected by such rule or order. A rule of the board when duly published, posted, and filed as provided in this section, shall have binding force and effect.

Source: S.L. 1927, ch. 101, § 22; 1943, ch. 93, § 5; R.C. 1943, § 43-0411; S.L. 1979, ch. 459, § 3; 1993, ch. 54, § 106; 1995, ch. 243, § 2.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-04-11. Rules and orders. [Effective September 1, 2022]

The board may adopt and enforce all rules and orders necessary to carry out the provisions of this chapter:

  1. It may prescribe sanitary regulations for barbershops and barber schools. Such regulations shall be subject to the approval of the department of health and human services. A copy of the rules and regulations adopted by the board and approved by the department of health and human services shall be furnished by the board to the owner or manager of every barbershop and barber school and shall be posted by such owner or manager in a conspicuous place in such barbershop or barber school.
  2. Every other rule or order of the board shall be posted for public inspection in the main office of the board and a certified copy shall be filed in the office of the secretary of the board and published in the press publications representing the barber industry. An order applying only to a person or persons named therein shall be served on the person or persons affected. An order herein required shall be served by personal delivery of a certified copy or by mailing a certified copy in a sealed envelope with postage prepaid to each person affected thereby, or in the case of a corporation or limited liability company, to an officer, manager, or agent of the corporation or limited liability company upon whom a summons may be served in accordance with the provisions of law. The posting in the main office of the board of any rule or order not required by this chapter to be served, and such filing in the office of the secretary of the board and publishing in representative publications, shall constitute due and sufficient notice to all persons affected by such rule or order. A rule of the board when duly published, posted, and filed as provided in this section, shall have binding force and effect.

Source: S.L. 1927, ch. 101, § 22; 1943, ch. 93, § 5; R.C. 1943, § 43-0411; S.L. 1979, ch. 459, § 3; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 2021, ch. 352, § 355, effective September 1, 2022.

43-04-12. General powers of board.

The board is an instrumentality of the state and shall act for the purpose of administering the provisions of this chapter and has such specific powers as are necessary to administer and enforce the same. The board has the following additional powers:

  1. To supervise and regulate barbering practice in the state of North Dakota in the manner and for the purposes provided herein.
  2. To investigate as conditions permit and regulate as conditions require all matters pertaining to the proper supervision and control of all barbershops and the work of all barbers within this state, in conformity with the intents and purposes of this chapter.
  3. To act as mediator and arbitrator in any controversy or issue that may arise among or between barbers as between themselves, or that may arise between them as groups, in harmony with and supplementary to any lawfully constituted medium of arbitration now existing or hereafter created, having jurisdiction of such matters.
  4. To issue subpoenas and to administer oaths as provided in section 43-04-13 whenever necessary to carry out the purposes and intents of this chapter, and to issue commissions to take depositions of witnesses absent from this state whenever necessary for such purposes.
  5. The board shall sponsor an educational program to carry out the purposes of protecting the public health and safety by encouraging barbershops that are clean, healthful, and sanitary with capable, skilled, professional barbers. The board is directed to use the sum of five dollars from each fee paid for the renewal of any barber’s certificate for the purpose of such educational program.

Source: S.L. 1943, ch. 93, §§ 3, 4; R.C. 1943, § 43-0412; S.L. 1957, ch. 294, § 2; 1957 Supp., § 43-0412; S.L. 1979, ch. 459, § 4.

43-04-13. Investigations.

The practice and procedure of the board with respect to any investigation by the board authorized by this chapter must be in accordance with rules and regulations to be promulgated by the board, which must provide for at least twenty days’ notice in writing to all persons affected by orders to be made by the board after such investigation, and an opportunity to be heard either in person or by counsel and to introduce testimony in their behalf at a public hearing to be held for that purpose. Notice of any such investigation or hearing must be given to all persons to be directly affected thereby in the manner and form provided in section 43-04-41. For the purposes of such investigation or any hearing which the board is authorized or required to conduct, the board or any members thereof, and its secretary, may conduct such hearing, administer oaths, take depositions, issue subpoenas, and compel the attendance of witnesses and the production of books, papers, documents, and testimony. In case of failure of any person to comply with any order of the board or a subpoena issued by the board, or by any of its members, or its secretary, or on the refusal of a witness to testify to any matter regarding which the witness may be lawfully interrogated, the district judge of the county in which the person resides, on application of any member of the board, or its secretary, by order duly entered, may require the compliance of such person with any such order, and may enforce such compliance as in the case of disobedience of the requirements of a subpoena issued from such court, or of a refusal to testify therein. Each officer who serves a subpoena shall receive the same fees as a sheriff, and each witness who appears in obedience to a subpoena, before the board or a member, or its secretary, shall receive for attendance the fees and mileage provided for witnesses in civil cases in the courts of this state, which must be audited and paid in the same manner as other expenses are audited and paid, upon the presentation of proper vouchers approved by any two members of the board. No witnesses subpoenaed at the instance of a party other than the board, or one of its members, or its secretary shall be entitled to compensation unless the board certifies that this testimony was material to the matter investigated.

Source: S.L. 1943, ch. 93, § 6; R.C. 1943, § 43-0413.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Sheriff’s fee for service of subpoena, see N.D.C.C. § 11-15-07.

Subpoenas, see ch. 31-03; N.D.R.Civ.P. 45; N.D.R.Crim.P. 17.

Witness fees in civil cases, see N.D.C.C. § 31-01-16.

43-04-14. Reports to board.

Each licensee, from time to time, as required by rule or order of the board, shall make and file a verified report, on forms prescribed by the board, of all matters on account of which a record is required to be kept, together with such other information or facts as may be pertinent and material within the scope of the purpose and intent of this chapter. Such report must cover a period of time specified in the order.

Source: S.L. 1943, ch. 93, § 9; R.C. 1943, § 43-0414.

43-04-15. Information obtained by board confidential.

No member of said board, nor any officer, agent, or employee thereof, shall divulge to any person, firm, corporation, or limited liability company the contents of any document, paper, or record, examined by the person in the performance of the person’s duties hereunder, or any information obtained by the person in the course of the person’s investigation, except as may be required to carry out the purpose of this chapter.

Source: S.L. 1943, ch. 93, § 11; R.C. 1943, § 43-0415; S.L. 1993, ch. 54, § 106.

43-04-16. Order fixing minimum price schedules of barber services. [Repealed]

Repealed by S.L. 1979, ch. 459, § 6.

43-04-17. Amending or modifying price schedules after approval. [Repealed]

Repealed by S.L. 1979, ch. 459, § 6.

43-04-18. Records of board — Register of certificates.

The board shall keep a record of its proceedings relating to the issuance, refusal, renewal, suspension, and revocation of certificates of registration. This record also must contain the name, place of business, and place of residence of each registered barber and each registered apprentice, and the date and number of the person’s certificate of registration. This record must be open to public inspection at all reasonable times.

Source: S.L. 1901, ch. 30, § 11; R.C. 1905, § 360; C.L. 1913, § 569; S.L. 1927, ch. 101, § 22; R.C. 1943, § 43-0418.

43-04-19. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source: S.L. 1901, ch. 30, § 5; R.C. 1905, § 353; C.L. 1913, § 562; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0419; S.L. 1963, ch. 346, § 38; 1973, ch. 403, § 28; 1975, ch. 466, § 30; 1995, ch. 350, § 29.

43-04-20. Moneys of board held by treasurer — How disbursed.

Moneys collected for the board under the provisions of this chapter must be kept by the treasurer and disbursed only on warrants signed by the president and the secretary of the board. At the end of the treasurer’s term, the treasurer shall account to the successor to the office for any moneys remaining in the treasurer’s hands.

Source: S.L. 1901, ch. 30, § 5; R.C. 1905, § 353; C.L. 1913, § 562; S.L. 1927, ch. 101, § 21; R.C. 1943, § 43-0420.

43-04-21. Barbershop under the supervision of registered barber.

No person may operate a barbershop unless at all times it is under the direct supervision and management of a registered barber.

Source: S.L. 1927, ch. 101, § 1; R.C. 1943, § 43-0421.

43-04-22. Apprentice barber — Certificate of registration required — Powers. [Repealed]

Source: S.L. 1901, ch. 30, § 9; 1903, ch. 38, § 1; R.C. 1905, § 357; C.L. 1913, § 566; S.L. 1927, ch. 101, §§ 1, 3; 1931, ch. 97, § 1; R.C. 1943, § 43-0422; S.L. 1947, ch. 293, § 1; 1957 Supp., § 43-0422; S.L. 1983, ch. 471, § 1; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-23. Qualifications for certificate of registration as registered apprentice. [Repealed]

Source: S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 6; R.C. 1943, § 43-0423; S.L. 1967, ch. 346, § 1; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-24. Minimum standard of schools of barbering.

No school of barbering may be approved by the board unless it requires as a prerequisite to graduation a course of instruction of not less than one thousand five hundred hours to be completed within a reasonable period of time as determined by the board with not more than eight hours in any one working day. Such course of instruction must include the following subjects:

  1. Scientific fundamentals of barbering.
  2. Hygiene.
  3. Bacteriology.
  4. Histology of the hair, skin, muscles, and nerves.
  5. Structure of the head, face, and neck.
  6. Elementary chemistry relating to sterilization and antiseptics.
  7. Diseases of the skin, glands, and nails.
  8. Massaging and manipulating the muscles of the upper body.
  9. Hair cutting.
  10. Shaving.
  11. Arranging, dressing, coloring, bleaching, perming, and tinting the hair.

Source: S.L. 1927, ch. 101, § 7; 1943, ch. 92, § 1; R.C. 1943, § 43-0424; S.L. 1959, ch. 318, § 1; 1983, ch. 471, § 2.

Collateral References.

Validity, construction and effect of statute or ordinance regulating beauty culture schools, 56 A.L.R.2d 879.

Liability of cosmetology school for injury to patron, 81 A.L.R.4th 444.

43-04-25. Application for admission to barber school.

No school or college of barbering may enroll or admit any student thereto unless such student shall make and file, in duplicate, a duly verified application, which must be in such form and which must contain such matters as the state board of barber examiners may prescribe and which must be obtained by such student or the school or college from said board. One copy of such application must be retained by the school or college enrolling or admitting the student, and the other copy must be filed by such school or college with said board.

Source: S.L. 1943, ch. 92, § 1; R.C. 1943, § 43-0425.

43-04-26. Application for admission to barber school for postgraduate course.

A school or college of barbering may not enroll or admit any student in a postgraduate course thereof, unless the student files, in duplicate, an application, duly verified, which shows the applicant:

  1. Has graduated from a school or college of barbering approved by the board; or
  2. Can prove by sworn affidavits that the applicant has practiced as a barber in another state of the United States for at least two years immediately prior to making the application.

One copy of the application must be retained by the college or school so admitting or enrolling the student and the other must be filed by such school or college with the board. This section contained may not be construed as limiting or modifying the provisions of sections 43-04-31 and 43-04-35.

Source: S.L. 1943, ch. 92, § 1; R.C. 1943, § 43-0426; 2017, ch. 285, § 1, effective August 1, 2017.

43-04-27. Barber school must have permit.

It shall be unlawful for any person, firm, corporation, or limited liability company to operate a barber school or barber college without first obtaining a permit from the state board of barber examiners, fully complying with the provisions of this chapter and paying an annual fee for the operation thereof.

Source: S.L. 1943, ch. 92, § 1; R.C. 1943, § 43-0427; S.L. 1993, ch. 54, § 106.

Cross-References.

Exemption of barber schools from regulations governing postsecondary educational institutions, see N.D.C.C. § 15-20.4-02.

Collateral References.

Validity, construction and effect of statute or ordinance regulating beauty culture schools, 56 A.L.R.2d 879.

43-04-28. Apprentice — Permit to practice. [Repealed]

Source: S.L. 1927, ch. 101, § 11; R.C. 1943, § 43-0428; S.L. 1967, ch. 346, § 2; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-29. Apprenticeship in other state applied to apprenticeship required for registration. [Repealed]

Source: S.L. 1927, ch. 101, § 11; R.C. 1943, § 43-0429; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-30. Barber — Certificate of registration required.

A person may not practice barbering within this state unless the person holds a certificate of registration and is registered as a barber or holds a permit to practice as a journeyman barber.

Source: S.L. 1901, ch. 30, § 1; R.C. 1905, § 349; C.L. 1913, § 558; S.L. 1927, ch. 101, § 1; R.C. 1943, § 43-0430.

Notes to Decisions

Injunction.

Barbering without a certificate of registration does not constitute a public nuisance abatable by an equitable action. Richmond v. Miller, 70 N.D. 157, 292 N.W. 633, 1940 N.D. LEXIS 155 (N.D. 1940).

43-04-30.1. Continuing education requirements.

  1. The board may adopt rules establishing requirements for the continuing education of persons licensed under this chapter. Rules for accreditation of continuing education must allow accreditation for a variety of types of continuing education forums, including live presentations and correspondence education.
  2. The board may suspend, revoke, place on probationary status, or refuse to renew any license issued under this chapter if the licensee fails to meet the continuing education requirements established by the board.
  3. An applicant for accreditation of continuing education courses, classes, or activities may be charged a reasonable fee determined by the board.

Source: S.L. 1997, ch. 363, § 3.

43-04-31. Qualifications for certificate of registration as registered barber.

A person is qualified to receive a certificate of registration to practice barbering if the person:

  1. Is at least eighteen years of age;
  2. Is of good moral character and temperate habits; and
  3. Has passed a satisfactory examination conducted by the board to determine that person’s fitness to practice barbering.

Source: S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 5; 1931, ch. 99, § 1; R.C. 1943, § 43-0431; S.L. 1973, ch. 120, § 40; 1983, ch. 471, § 3; 1989, ch. 504, § 1; 2017, ch. 285, § 2, effective August 1, 2017.

43-04-31.1. Conviction not bar to certification or permit — Exceptions.

Conviction of an offense does not disqualify a person from certification or a permit under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a barber, or determines, following conviction of any offense, that the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source: S.L. 1977, ch. 130, § 18.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-04-32. Barber — Application for examination.

Any person who desires to take the examination for a certificate of registration to practice as a registered barber shall make application to the board on blanks prepared and furnished by the board and shall enclose with the application all of the following:

  1. Proof, under oath, of the person’s qualifications.
  2. A five-inch by three-inch [12.7-centimeter by 7.62-centimeter] signed photograph of that person. The person also shall present such a photograph to the board when the person appears for examination.
  3. The required fee.
  4. A certificate showing graduation from a public or recognized private high school or an equivalent education as determined by an examination conducted by the board; provided, however, that two years armed service should be termed equivalent education.

Source: S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 8; R.C. 1943, § 43-0432; S.L. 1967, ch. 346, § 3; 2017, ch. 285, § 3, effective August 1, 2017.

43-04-33. Examinations — Barber.

The board, not less than four times each year, at such times and places as it may determine, shall conduct examinations of applicants for certificates of registration to practice as registered barbers. Each examination must include both a practical demonstration and a written and oral test, and must embrace the subjects usually taught in schools of barbering approved by the board.

Source: S.L. 1901, ch. 30, § 6; R.C. 1905, § 354; C.L. 1913, § 563; S.L. 1927, ch. 101, § 9; R.C. 1943, § 43-0433; 2017, ch. 285, § 4, effective August 1, 2017.

43-04-34. Failure to pass examination for apprentice barber — When applicant may be re-examined. [Repealed]

Source: S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 6; R.C. 1943, § 43-0434; S.L. 1973, ch. 346, § 4; repealed by 2017, ch. 285, § 10, effective August 1, 2017.

43-04-35. Failure to pass examination for registered barber — When applicant may be re- examined.

An applicant for a certificate of registration to practice as a registered barber who fails to pass a satisfactory examination conducted by the board must wait an additional three months before that person again is entitled to take the examination for registration as a barber.

Source: S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 5; 1931, ch. 99, § 1; R.C. 1943, § 43-0435; 2017, ch. 285, § 5, effective August 1, 2017.

43-04-36. Barber — Certificate of registration — When issued.

The board shall issue to an applicant a certificate of registration as a registered barber whenever the applicant has complied with the provisions of section 43-04-31.

Source: S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 10; R.C. 1943, § 43-0436; 2017, ch. 285, § 6, effective August 1, 2017.

43-04-37. Display of certificate of registered barber.

Every holder of a certificate of registration as a registered barber or registered apprentice shall display it in a conspicuous place adjacent to or near that person’s work chair.

Source: S.L. 1901, ch. 30, § 10; R.C. 1905, § 359; C.L. 1913, § 568; S.L. 1927, ch. 101, § 13; R.C. 1943, § 43-0437.

43-04-38. Persons having practiced barbering in another state — Permit to practice as journeyman barber. [Repealed]

Repealed by S.L. 1987, ch. 511, § 3.

43-04-38.1. Persons having practiced barbering in another state — Qualifications for certificate of registration as registered barber.

The board may waive the requirement of a satisfactory examination and issue to an applicant a certificate of registration to practice barbering, if the applicant:

  1. Is at least eighteen and one-half years of age.
  2. Has completed high school or received a high school equivalency degree.
  3. Has been graduated from a school of barbering approved by the board which requires as a requisite to graduation the completion of not less than one thousand five hundred fifty hours of instruction. If the applicant has not completed the requisite number of hours of instruction, each year of the applicant’s subsequent barbering experience constitutes the equivalent of two hundred hours of instruction which may be applied toward fulfilling the requisite number of hours.
  4. Has a valid license or certificate of registration as a practicing barber from another state that has substantially the same requirements for licensing or registering barbers as required by this chapter.
  5. Delivers to the board a certificate from the examining board of another state certifying that the applicant is a licensed or registered barber in good standing and has practiced full time as a barber in that state for a period of at least three years.
  6. Has paid the required fee.

Source: S.L. 1987, ch. 511, § 1.

43-04-39. Renewal and restoration of certificates of barber.

Every registered barber who continues in active practice or service, annually, on or before July first, shall renew that person’s certificate of registration and pay the required fee. Every certificate of registration which has not been renewed during the month of July in any year expires the first day of August in that year. A registered barber whose certificate of registration has expired may have that person’s certificate restored immediately upon payment of the required restoration fee. Any registered barber who retires from the practice of barbering for not more than five years may renew that person’s certificate upon payment of the required restoration fee.

Source: S.L. 1901, ch. 30, § 8; R.C. 1905, § 356; C.L. 1913, § 565; S.L. 1927, ch. 101, § 14; R.C. 1943, § 43-0439; 2017, ch. 285, § 7, effective August 1, 2017.

43-04-40. Refusal and revocation of certificate.

The board either may refuse to issue or renew a certificate of registration to practice barbering or may suspend or revoke the same for any one, or a combination, of the following causes:

  1. Conviction of an offense, shown by a certified copy of the record of conviction, determined by the board to have a direct bearing upon a person’s ability to serve the public as a barber, or the board determines, following conviction of any offense, that the person is not sufficiently rehabilitated under section 12.1-33-02.1.
  2. Gross malpractice or gross incompetency.
  3. Continued practice by a person knowingly having an infectious or contagious disease.
  4. Habitual drunkenness or habitual addiction to the use of morphine, cocaine, or other habit-forming drug.
  5. Advertising by means of knowingly false or deceptive statements.
  6. Immoral and unprofessional conduct.
  7. When satisfied that any such person has violated any provision of this chapter.
  8. Repeated violations of the rules of the board governing the sanitary regulation of barbershops and barber schools.

Source: S.L. 1901, ch. 30, § 12; R.C. 1905, § 361; C.L. 1913, § 570; S.L. 1927, ch. 101, § 15; 1943, ch. 92, § 3; 1943, ch. 93, § 8; R.C. 1943, § 43-0440; S.L. 1977, ch. 130, § 19; 2011, ch. 54, § 6.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-04-41. Revocation of certificate — Hearing.

The board may not refuse to issue, refuse to renew, suspend, or revoke any certificate of registration to practice barbering for any of the causes set forth in section 43-04-40 unless the person accused has been given a public hearing by the board. The person must be notified in writing of the charges against the person and of the time set for the hearing, which must be not less than twenty days after serving the notice. Upon the hearing of any such proceedings, the board may administer oaths and may procure by its subpoena the attendance of witnesses and the production of relevant books and papers. Any court in this state, upon application of the accused or the board, by order duly entered, may require the attendance of witnesses and the production of relevant books and papers at such hearing.

Source: S.L. 1901, ch. 30, § 12; R.C. 1905, § 361; C.L. 1913, § 570; S.L. 1927, ch. 101, § 16; R.C. 1943, § 43-0441.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-04-42. Fees.

  1. The board may charge applicants the following fees:
    1. For examination and issuance of a certificate to practice master barbering, one hundred dollars.
    2. For renewal of a master barber’s certificate, one hundred dollars.
    3. For restoration of an expired master barber’s certificate, a twenty dollar penalty fee in addition to the regular renewal fee.
    4. For a permit to operate a barber school or college, an annual fee of one hundred twenty-five dollars.
    5. For issuance of an annual barbershop license, fifty dollars, to be paid by each shopowner in advance.
    6. For issuance of a certificate to an applicant who qualifies under section 43-04-38.1, one hundred seventy-five dollars.
    7. For restoration of an expired barbershop license, a twenty dollar penalty fee in addition to the annual license fee.
    8. For renewal of an instructor’s license, twenty-five dollars.
  2. Each application to open or establish a barbershop in this state must be accompanied by a fee of one hundred dollars to cover expenses of inspection, which must be retained by the board and deposited as other fees.
  3. A duplicate license, certificate, or permit must be issued upon:
    1. Filing a statement verified by the oath of the applicant which explains the loss;
    2. Submitting a signed photograph of the applicant; and
    3. Paying a fee of ten dollars for the issuance of the duplicate.
  4. Anyone who becomes a member of the armed forces of the United States in time of war, while holding a license as a barber or apprentice, and while in good standing as to payment of fees, may obtain a certificate restoration without payment of the restoration fee.

Source: S.L. 1927, ch. 101, § 17; 1933, ch. 79, § 1; 1943, ch. 92, § 4; R.C. 1943, § 43-0442; S.L. 1947, ch. 295, § 1; 1957, ch. 294, § 3; 1957 Supp., § 43-0442; S.L. 1965, ch. 297, § 1; 1973, ch. 346, § 5; 1979, ch. 459, § 5; 1987, ch. 511, § 2; 1989, ch. 505, §§ 1, 2; 1997, ch. 363, § 2; 2011, ch. 306, § 1; 2017, ch. 285, § 8, effective August 1, 2017.

43-04-43. Barbershop — Regulations.

No person may use for the purpose of practicing barbering any room or place which also is used for:

  1. Residential purposes; or
  2. Any business purpose other than the sale of hair tonics, lotions, creams, cutlery, toilet articles, cigars, tobacco, candies in original package, and such other commodities as are used and sold in barbershops,

unless a substantial partition of ceiling height separates the portion used for residential or business purposes from the room used for barbering. A barbershop may be operated in conjunction with a beauty shop, shoe shining parlor, or agency for the reception and delivery of laundry without the separation thereof by a partition of ceiling height.

Source: S.L. 1927, ch. 101, § 18; 1931, ch. 98, § 1, subs. 6; R.C. 1943, § 43-0443.

43-04-44. Inspection of barbershops and barber schools.

Any member of the board or any of its inspectors, agents, or assistants may enter and inspect any barbershop or barber school at any time during business hours.

Source: S.L. 1927, ch. 101, § 22; R.C. 1943, § 43-0444.

43-04-45. Penalty.

Any person who shall:

  1. Violate any of the provisions of sections 43-04-21, 43-04-30, and 43-04-43;
  2. Permit any person in that person’s employ, supervision, or control to practice as a barber unless the person employed, supervised, or controlled has a certificate of registration as a registered barber;
  3. Obtain or attempt to obtain a certificate of registration by the payment of money other than the required fee, or any other thing of value, or by fraudulent misrepresentations;
  4. Practice or attempt to practice by fraudulent misrepresentations; or
  5. Willfully fail to display a certificate of registration as is required by this chapter,

is guilty of a class B misdemeanor. A violation of any provision of this chapter or of any rule, subpoena, or order of the board lawfully made pursuant hereto, except as otherwise provided herein, is a class B misdemeanor.

Source: S.L. 1901, ch. 30, § 14; R.C. 1905, § 363; C.L. 1913, § 572; S.L. 1927, ch. 101, § 18; 1931, ch. 98, § 1; 1943, ch. 92, § 5; 1943, ch. 93, § 7; R.C. 1943, § 43-0445; S.L. 1975, ch. 106, § 471; 2017, ch. 285, § 9, effective August 1, 2017.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-04-46. Board may institute actions.

The board may institute such actions in the courts of competent jurisdiction as may appear necessary to enforce compliance with any provision of this chapter, or to enforce compliance with any rule, subpoena, or order of the board made pursuant to the provisions of this chapter, and, in addition to any other remedy, may apply to any district court of competent jurisdiction for relief by injunction.

Source: S.L. 1943, ch. 93, § 7; R.C. 1943, § 43-0446.

43-04-47. Perjury — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

43-04-48. Appeals.

Any applicant or licensee aggrieved by any action of the board taken under any of the provisions of this chapter, within thirty days after receipt of a copy of the order of the board, may file a petition in the district court, which has jurisdiction to affirm, reverse, vacate, or modify the order complained of. The board of barber examiners of North Dakota must be the defendant, and such petition must set forth the errors complained of. Unless they are waived, citations and other judicial process must be served upon the president of the board, or in the event of the president’s absence, upon any member of the board, or by leaving a copy at the office of the board or the office of the secretary-treasurer. Upon such service or waiver, the board, with its answer, shall file a transcript of the records of the board, and the original papers or transcripts thereof, and a certified transcript of all evidence adduced upon the hearing before the board in the proceedings complained of, which must be filed in the court. No proceedings to vacate, reverse, or modify a final order rendered by the board may operate to stay the execution or effect thereof unless the district court, or a judge thereof in vacation, on application and three days’ notice to the board, shall allow such stay, in which event the petitioner must be required to execute the petitioner’s bond in such a sum as the court may prescribe, with sufficient surety to the satisfaction of the court, conditioned for the prompt payment of all damages arising from or caused by the delay in the effectiveness or enforcement of the order complained of.

Source: S.L. 1943, ch. 93, § 8; R.C. 1943, § 43-0448.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Appeal to District Court.

This section makes no designation of the district court to which an appeal may be taken from a decision of the board of barber examiners; therefore such appeal must be taken to the district court of the county in which the hearing, or a part thereof, was held as provided by N.D.C.C. § 28-32-42. Wagner v. North Dakota Bd. of Barber Examiners, 186 N.W.2d 570, 1971 N.D. LEXIS 171 (N.D. 1971).

43-04-49. Deceptive acts — Barber poles.

A person may not advertise, hold out to the public, or represent in any manner that the person is authorized to practice barbering unless the person is authorized under this chapter to practice barbering or authorized to employ or lease space to a barber. A person not authorized to practice barbering or not authorized to employ or lease space to a barber may not place a barber pole in a location that would create or tend to create the impression to members of the general public that a business located near the barber pole is a barbershop unless the location of the barber pole is related to a business authorized to operate a barbershop. As used in this section, barber pole means a red, white, or blue striped vertical cylinder with a ball located on the top, bottom, or top and bottom of the cylinder, or any object or facsimile of similar nature, regardless of the actual shape or coloring, if the object or facsimile would tend to create an impression to members of the general public that a business located near the object is a barbershop.

Source: S.L. 2007, ch. 358, § 1.

CHAPTER 43-05 Podiatrists

43-05-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota board of podiatric medicine.
  2. “Clinical residency” means a formal, structured postdoctoral training program approved by the board, which is sponsored by and conducted in an accredited institution approved by the board or conducted by a college of podiatric medicine accredited and approved by the council on podiatric medical education, American podiatric medical association, or other accrediting agency approved by the board. The term also includes a preceptorship approved by the board until January 1, 1995.
  3. “False or misleading statement or advertising” includes a statement, claim, or advertising that:
    1. Contains a misrepresentation of fact;
    2. Is likely to mislead or deceive because in context it makes only a partial disclosure of relevant facts;
    3. Is intended or is likely to create false or unjustified expectations of favorable results;
    4. Appeals to an individual’s anxiety in an excessive or unfair way;
    5. Contains material claims of superiority that cannot be substantiated;
    6. Misrepresents a podiatrist’s credentials, training, experience, or ability;
    7. Contains other representations or implications that in reasonable probability will cause an ordinary, prudent person to misunderstand or be deceived; or
    8. Represents that a manifestly incurable condition, sickness, disease, or injury can be cured.
  4. “Health care facility” means a medical hospital, skilled nursing care facility, intermediate care facility, basic care facility, boarding house, or swing-bed hospital approved to furnish long-term care service, or any other facility licensed to provide health care services.
  5. “Podiatric medicine” means :
    1. The medical and surgical treatment and diagnosis of ailments of the human foot, ankle, and other related soft tissue structures below the tibial tuberosity that govern the functions of the foot and ankle, not including extra articular osseous injuries above the distal metaphyseal scar. Podiatrists may treat and diagnose conditions of the foot and ankle by any medically accepted system or method necessary;
    2. The amputation of the toes, parts of the foot, or foot in its entirety, indicated as medically necessary;
    3. The use of such preparations, medicines, and drugs as may be necessary for the treatment of such ailments;
    4. The performance of history and physical examinations upon admitting patients to facilities where they are recognized with requisite credentials and privileges;
    5. That podiatrists may function as assistant surgeons in nonpodiatric procedures; and
    6. That podiatric medical residents working under a temporary permit may fully participate in rotations and assist and perform treatments and diagnosis beyond the foot and ankle, under appropriate supervision within an approved residency program as part of their medical surgical training.
  6. “Podiatrist” means a person who is qualified to practice podiatric medicine in this state.
  7. “Preceptorship” means a formal, structured postdoctoral training program approved by the board and conducted by a podiatrist primarily in an office setting and controlled and supervised by a college of podiatric medicine accredited by the council on podiatric medical education, American podiatric medical association, or another accrediting agency approved by the board.
  8. “Provider” means a licensed person, homecare provider, medical or health services clinic, hospital, or health care facility, organization, institution, or agency that furnishes health care services.

Source: S.L. 1929, ch. 95, §§ 2, 3; 1935, ch. 100, § 1; R.C. 1943, § 43-0501; S.L. 1953, ch. 267, § 1; 1957, ch. 295, § 1; 1957 Supp., § 43-0501; S.L. 1963, ch. 302, § 1; 1975, ch. 396, § 1; 1977, ch. 397, § 1; 1991, ch. 450, § 1; 2015, ch. 286, § 1, effective August 1, 2015.

Notes to Decisions

False or Misleading Advertising.

Statement in podiatrist’s advertisement supported board of podiatric medicine’s finding he used misleading advertisements designed to lead reader to believe he possessed skills superior to those of orthopedic surgeons. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Collateral References.

Podiatry or chiropody statutes: validity, construction, and application, 45 A.L.R.4th 888.

43-05-02. Exceptions.

The provisions of this chapter do not apply to the following:

  1. Physicians and surgeons licensed by the North Dakota board of medicine.
  2. Physicians and surgeons of the United States armed forces and of the United States public health service.
  3. Duly licensed chiropractors.
  4. The sale of shoes or preformed arch supports in the stores of this state.

Source: S.L. 1929, ch. 95, §§ 15, 15a; R.C. 1943, § 43-0502; S.L. 1975, ch. 396, § 2; 2015, ch. 297, § 13, effective August 1, 2015.

Cross-References.

Chiropractors, see N.D.C.C. ch. 43-06.

Medical doctors and osteopathic physicians, see N.D.C.C. ch. 43-17.

43-05-03. Board of podiatric medicine — Appointment of members — Term of office — Qualifications — Vacancies — Duties — Quorum — Records.

The board of podiatric medicine consists of six persons appointed by the governor for a term of four years each with the terms of office so arranged that no more than two terms expire on the thirteenth day of June of any year. A member of the board may not serve for more than two successive terms. A member may not be reappointed to the board after serving two successive terms unless at least two years have elapsed since the member last served on the board. Four members of the board must hold doctor of podiatric medicine degrees and must have practiced podiatric medicine in this state for at least two years before their appointment, one member must be a doctor of medicine who holds a doctor of medicine degree and has practiced in this state for at least two years before the appointment, and one member, who is designated as a public member, must be a resident of this state, be at least twenty-one years of age, and may not be affiliated with any group or profession that provides or regulates health care in any form.

A member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until a successor is appointed and qualified. The governor shall fill any vacancy by appointment for the unexpired term. The board may employ and compensate attorneys, investigative staff, clerical assistants, or others to assist in the performance of the duties of the board.

A majority of the board constitutes a quorum to transact business, make any determination, or take any action. The board shall keep a record of its proceedings and of applications for licenses. Applications and records must be preserved for at least six years beyond the disposition of the application or record or the last annual registration of the licensee, whichever is longer.

Source: S.L. 1929, ch. 95, § 3; R.C. 1943, § 43-0503; S.L. 1953, ch. 267, § 2; 1957 Supp., § 43-0503; S.L. 1975, ch. 396, § 3; 1991, ch. 450, § 2; 2001, ch. 364, § 1.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-05-04. Meetings — When held — Officers.

The board shall hold an annual meeting and at that meeting shall elect from its members a president, vice president, and secretary-treasurer. The president of the board or any two members of the board may call a special meeting at any time if written notice of the meeting is given to all the members. At any special meeting at which a quorum is present a waiver of the notice of the meeting may be executed in lieu of the original notice. The officers shall perform such duties as the board prescribes. If a member of the board is absent from two consecutive regular or special meetings, the board may declare that member’s position to be vacant. The governor shall fill all vacancies.

Source: S.L. 1929, ch. 95, § 4; R.C. 1943, § 43-0504; S.L. 1991, ch. 450, § 3.

43-05-05. Secretary-treasurer — Bond — Allowance.

The secretary-treasurer of the board must be bonded for the faithful discharge of the duties of the office in the sum of not less than one thousand dollars. The secretary of the board shall receive such allowance for clerical and other expenses of the board as determined by the board.

Source: S.L. 1929, ch. 95, § 5; R.C. 1943, § 43-0505; S.L. 1975, ch. 258, § 18; 1991, ch. 450, § 4.

43-05-06. Compensation of members of board.

Each member of the board shall receive fifty dollars per day for each day employed in the actual discharge of the duties of the board, and the member’s necessary expenses. The mileage and travel expense allowed may not exceed the amount provided for in section 54-06-09.

Source: S.L. 1929, ch. 95, § 12; R.C. 1943, § 43-0506; S.L. 1953, ch. 267, § 3; 1957 Supp., § 43-0506; S.L. 1991, ch. 450, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-05-07. Secretary-treasurer of board — Duties — Record — Reports.

The secretary-treasurer of the board shall have the following duties:

  1. Keep a full record of the proceedings of the board.
  2. Repealed by S.L. 1971, ch. 510, § 15.
  3. At such times as may be required by the board, furnish a complete statement of receipts and disbursements under oath, together with vouchers, receipts, and such other evidence of the receipts and disbursements as may be required by the board.

Source: S.L. 1957, ch. 295, § 3; R.C. 1943, 1957 Supp., § 43-0507; S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-05-08. Rules and regulations — Board to make.

The board may make such rules and regulations not inconsistent with the provisions of this chapter as may be necessary to give it full force and effect.

Source: S.L. 1929, ch. 95, § 17; R.C. 1943, § 43-0508.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-05-09. License to practice podiatry required.

  1. A person may not practice podiatric medicine unless that person first has obtained a license or permit to do so.
  2. A person may not do any of the following unless that person holds a valid license or permit:
    1. Advertise, hold out to the public, or represent in any manner that that person is authorized to practice podiatric medicine.
    2. Use the designation “doctor of podiatric medicine”, “podiatrist”, “D.P.M.”, “podiatric physician”, “chiropodist”, “foot specialist”, or “foot doctor”, or use any title, degree, letters, symbol, or words that would tend to lead the public to believe that that person is authorized to practice or assume duties incident to the practice of podiatric medicine.
  3. A license to practice podiatric medicine is effective for one year subject to the terms and conditions for renewal established by the board.

Source: S.L. 1929, ch. 95, § 1; R.C. 1943, § 43-0509; S.L. 1975, ch. 396, § 4; 1991, ch. 450, § 6.

Collateral References.

Separate or continuing offense, practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts as a separate or continuing offense, 99 A.L.R.2d 654.

43-05-10. Application — Examination fee.

To obtain a license to practice podiatric medicine, a person shall submit an application and any other documentation required by the board to the board in the manner prescribed by the board. The applicant shall submit evidence that the applicant has the required qualifications and shall pay to the board a fee of not more than five hundred dollars.

Source: S.L. 1929, ch. 95, § 7; R.C. 1943, § 43-0510; S.L. 1953, ch. 267, § 4; 1957 Supp., § 43-0510; S.L. 1975, ch. 396, § 5; 1991, ch. 450, § 7.

43-05-11. Qualifications of licensee.

An applicant for a license to practice podiatric medicine must possess the following qualifications:

  1. Be at least eighteen years of age;
  2. Be of good moral character; and
  3. Be a graduate of a podiatric medical school approved by the board based upon its faculty, curriculum, facilities, accreditation by a recognized national accrediting organization approved by the board, and other relevant factors.

All persons holding a license to practice podiatric medicine in this state on July 1, 1991, continue to be eligible for a license to practice podiatric medicine under this chapter.

Upon renewal of any license, the board may require the applicant to show sufficient proof of continuing medical education since the last application, which may include seminars or podiatry meetings. The board may waive the continuing education requirements in case of illness or other extenuating circumstances.

An applicant for a license must not have engaged in conduct warranting disciplinary action against a licensee or permittee in this state or another state. The board may issue a license or permit to an applicant who has engaged in conduct warranting disciplinary action if the board determines that the public will be protected through the issuance of a license or permit with conditions and limitations considered appropriate by the board. Applicants graduating after July 1, 1991, from a podiatric medical school shall present to the board evidence of the successful completion of a program of clinical residency.

Source: S.L. 1929, ch. 95, § 6; R.C. 1943, § 43-0511; S.L. 1953, ch. 267, § 5; 1957 Supp., § 43-0511; S.L. 1973, ch. 120, § 42; 1975, ch. 396, § 6; 1991, ch. 450, § 8.

43-05-11.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify an applicant from licensure under this chapter unless the board determines that the offense has a direct bearing upon an applicant’s ability to serve the public as a podiatrist, or determines that an applicant, following conviction of any offense, is not sufficiently rehabilitated under section 12.1-33-02.1.

Source: S.L. 1977, ch. 130, § 20.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-05-12. Examination — Temporary permit.

  1. The board may issue a license or permit to an applicant who has received a passing score on each section of the national board of podiatric medical examiners licensing examination or such other licensing examination as determined by the board. The board shall determine the requirements for a passing score. An applicant shall appear in person before the board or its designated representative to complete an oral practical examination and show that the applicant satisfies the requirements for licensure. The board may accept a national clinical examination prepared and graded by the national board of podiatric medical examiners in lieu of the oral practical examination. The board may establish the procedures or requirements for the applicant’s personal presentation and the subject matter of the oral practical examination.
  2. The board may issue a temporary permit to practice podiatric medicine to a person engaged in a clinical residency or preceptorship for a period not to exceed twelve months if the person meets all the conditions and qualifications for licensure established by this chapter and rules of the board. The applicant for a temporary permit shall submit a fee of not more than two hundred fifty dollars, as determined by the board.

Source: S.L. 1929, ch. 95, §§ 10, 11; R.C. 1943, § 43-0512; S.L. 1953, ch. 267, § 6; 1957 Supp., § 43-0512; S.L. 1975, ch. 396, § 7; 1991, ch. 450, § 9.

43-05-13. Re-examination when applicant fails in first examination.

Any applicant who fails the examination and is refused a license, within one year after such refusal, may be re-examined upon paying an additional fee of three hundred dollars. Only one re-examination exhausts the applicant’s privilege under the original application.

Source: S.L. 1929, ch. 95, § 11; R.C. 1943, § 43-0513; S.L. 1953, ch. 267, § 7; 1957 Supp., § 43-0513; S.L. 1991, ch. 450, § 10.

43-05-14. When license issued without examination.

The board may issue a license without examination to a podiatrist of another state or Canadian province if:

  1. The other state or Canadian province grants like privileges to podiatrists of this state;
  2. The other state or Canadian province maintains equal statutory requirements for practicing podiatric medicine;
  3. The applicant pays a fee of not more than five hundred dollars as determined by the board;
  4. The applicant has been engaged legally in the active practice of podiatric medicine for at least two years immediately preceding the date of application;
  5. The applicant presents satisfactory evidence to the board indicating the current status of a license to practice podiatric medicine which has been issued by the proper agency in another state or Canadian province;
  6. The applicant has not had a license suspended or revoked, or has not engaged in conduct warranting or which would have warranted disciplinary action against a licensee if the conduct was committed in this state or elsewhere, or has not been subjected to disciplinary action in another state or Canadian province. If an applicant does not satisfy the requirements of this subsection, the board shall refuse to issue a license unless the board determines that the public will be protected through issuance of a license with conditions or limitations considered appropriate by the board; and
  7. The applicant submits with the application the following information for the five-year period before the date of filing the application:
    1. The name and address of the applicant’s professional liability insurance carrier in the other state or Canadian province; and
    2. The number, date, and disposition of any podiatric medical malpractice settlement or award made to the plaintiff relating to the quality of podiatric medical treatment.

Source: S.L. 1929, ch. 95, § 9; R.C. 1943, § 43-0514; S.L. 1975, ch. 396, § 8; 1991, ch. 450, § 11.

43-05-15. Renewal of license — Fee — Established by board — Failure to pay — Reinstatement.

Each licensed and practicing podiatrist shall pay the annual renewal license fee established by the board. The license fee may be increased in accordance with the number of years licensed and practicing in North Dakota, but may not exceed seven hundred fifty dollars. The fee must be paid on or before the renewal date established by the board. The person is entitled to an annual certificate or license upon payment of the fee. If the renewal fee is not paid within six months after the date established by the board, the license of the delinquent licensee must be considered expired and may be revoked and may not be reissued except upon a new application and the payment of the renewal fee established by the board plus the late fee established by the board not to exceed two hundred fifty dollars and the costs of any hearing held concerning revocation of a license for nonpayment.

Source: S.L. 1929, ch. 95, § 13; R.C. 1943, § 43-0515; S.L. 1957, ch. 295, § 2; 1957 Supp., § 43-0515; S.L. 1963, ch. 303, § 1; 1975, ch. 396, § 9; 1991, ch. 450, § 12; 2013, ch. 318, § 1; 2015, ch. 287, § 1, effective August 1, 2015.

43-05-16. Grounds for disciplinary action.

  1. The board may refuse to grant a license or permit or may impose disciplinary action as described in this chapter against any podiatrist. The following conduct, whether occurring in this state or elsewhere, is prohibited and is a basis for disciplinary action:
    1. Failure to demonstrate the qualification or satisfy the requirements for a license or permit under this chapter or rules of the board.
    2. Obtaining a license or permit by fraud or cheating or attempting to subvert the licensing or permit examination process, the use of any false, fraudulent, or forged statement or document, or the use of any fraudulent, deceitful, dishonest, or immoral practice in connection with any of the license or permit requirements.
    3. Conviction, during the previous five years, of a misdemeanor or felony reasonably related to the practice of podiatric medicine, or determined by the board to have a direct bearing upon a person’s ability to serve the public as a podiatrist. A license may not be withheld contrary to chapter 12.1-33.
    4. Revocation, suspension, restriction, limitation, or other disciplinary action against the person’s podiatric medical license in another state or jurisdiction, failure to report to the board that charges regarding the person’s license have been brought in another state or jurisdiction, or failure to report to the board that the person has been refused a license by another state or jurisdiction.
    5. Advertising that is false or misleading, or the making of any false or misleading statement about the podiatrist’s skill, training, experience, or ability or the efficacy of any treatment or remedy.
    6. Violating a rule adopted by the board; an order of the board; any provision of this chapter; any action, stipulation, condition, or agreement imposed by the board; a state or federal law that relates to the practice of podiatric medicine; or a state or federal narcotics or controlled substance law.
    7. Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm the public; demonstrating a willful, careless, or negligent disregard for the health, welfare, or safety of a patient; or podiatric medical practice that is professionally incompetent, in that it may create unnecessary danger to any patient’s life, health, or safety regardless of whether an actual injury is proved.
    8. Failure to supervise a preceptor or resident.
    9. Aiding or abetting an unlicensed, incompetent, or impaired person in the practice of podiatric medicine.
    10. Adjudication by a court of competent jurisdiction as mentally incompetent, mentally ill, chemically dependent, a person dangerous to the public, or a person who has a psychopathic personality.
    11. Engaging in unprofessional conduct that includes any departure from or the failure to conform to the minimal standards of acceptable and prevailing podiatric medical practice.
    12. Inability to practice podiatric medicine with reasonable skill and safety to patients because of physical or mental illness, a substance use disorder, or as a result of any mental or physical condition or disability.
    13. Revealing a privileged communication from or relating to a patient except when otherwise required or permitted by law.
    14. Improper management of medical records.
    15. Accepting, paying, or promising to pay a part of a fee in exchange for patient referrals; obtaining any fee by fraud, deceit, or misrepresentation; or paying or receiving, directly or indirectly, any fee, commission, rebate, or other compensation for services not actually or personally rendered, except for the lawful distribution of compensation or fees within a professional partnership, corporation, or association.
    16. Engaging in abusive or fraudulent billing practices.
    17. Habitual use of, or becoming addicted or habituated to, alcohol or drugs.
    18. Prescribing, administering, or distributing a drug for other than medically accepted therapeutic purposes, experimental, or investigative purposes authorized by a state or federal agency.
    19. Engaging in sexual misconduct, sexual abuse, or exploitation with or of a patient; conduct that may reasonably be interpreted by the patient as sexual; or in verbal behavior which is seductive or sexually demeaning to a patient.
    20. The failure to furnish the board or representatives information legally requested by the board.
    21. A continued pattern of inappropriate care as a podiatrist.
    22. The practice of podiatric medicine under a false or assumed name other than a partnership name containing the names of one or more of the licensed partners.
    23. Maintaining a professional office in conjunction or relation with any business not engaged in the practice of the medical sciences.
    24. Treating any disease, sickness, illness, malady, or defect that is outside the scope of the practice of podiatric medicine.
  2. In disciplinary actions alleging a violation of subdivision c or d of subsection 1, a copy of the judgment or proceeding under the seal of the clerk of court or of the administrative agency that entered the judgment or proceeding is admissible into evidence without further authentication and constitutes prima facie evidence of the contents of that judgment or proceeding.
  3. The board shall keep a record of all of its proceedings in the matter of suspending, revoking, or refusing licenses or permits together with the evidence offered.

Source: S.L. 1929, ch. 95, § 14; R.C. 1943, § 43-0516; S.L. 1953, ch. 267, § 8; 1957 Supp., § 43-0516; S.L. 1975, ch. 396, § 10; 1977, ch. 130, § 21; 1991, ch. 450, § 13; 1997, ch. 364, § 1; 2019, ch. 225, § 13, effective August 1, 2019.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Notes to Decisions

False or Misleading Advertising.

Statement in podiatrist’s advertisement supported board of podiatric medicine’s finding he used misleading advertisements designed to lead reader to believe he possessed skills superior to those of orthopedic surgeons. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Malpractice.

Subdivision (1)(k) authorizes the board of podiatric medicine to discipline podiatrist for a single instance of failing to conform to minimal standards of acceptable and prevailing podiatric medical practice, and the record supported board’s finding treatment of patient failed to conform to such standards. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Notice.

Although minutes of board of podiatric medicine’s meeting authorized charges against podiatrist for “malicious” advertising, formal complaint alleging he had engaged in advertising that was “false or misleading” provided him with notice of the charges against him. Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878, 1997 N.D. LEXIS 85 (N.D. 1997).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Bias of members of license revocation board, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

43-05-16.1. Forms of disciplinary action — Dates — Automatic suspensions — Reissuance.

When the board finds, pursuant to chapter 28-32, that a podiatrist has violated this chapter or a rule of the board, the board may do one or more of the following:

  1. Revoke the license or permit.
  2. Suspend the license or permit.
  3. Institute probation with or without any of the following terms:
    1. Impose limitations or conditions on the podiatrist’s practice of podiatric medicine.
    2. Impose retraining or rehabilitation requirements.
    3. Require practice under supervision.
    4. Condition the continued practice on demonstration of knowledge or skills by an appropriate examination or other review of skill and competence.
  4. Impose a civil penalty not exceeding ten thousand dollars for each violation, the amount of the civil penalty fixed so as to deprive the podiatrist of any economic advantage gained by the violation or to reimburse the board for attorney’s fees and the cost of the investigation and proceeding.
  5. Order the podiatrist to provide unremunerated professional service under supervision at a designated public hospital, nursing home, clinic, or other health care facility or institution.
  6. Reprimand the podiatrist.
  7. Censure the podiatrist.
  8. Send the podiatrist a letter of concern.

Source: S.L. 1991, ch. 450, § 14; 1997, ch. 364, § 2.

43-05-16.2. Suspension or revocation of license.

  1. In addition to any other remedy provided by law, the board may, without a hearing, temporarily suspend the license or permit of a podiatrist if the board finds as a matter of probable cause based on verified evidence that the podiatrist has violated this chapter or a rule of the board and that continued practice by the podiatrist would create or be likely to result in a serious and imminent risk of harm to the public. The ex parte temporary suspension order is effective upon written notice to the podiatrist, specifying the law or rule violated. The ex parte temporary suspension remains in effect until the board issues a final order in the matter after a hearing unless otherwise ordered by a district court. When the board issues the ex parte temporary suspension notice, the board shall schedule a disciplinary hearing to be held pursuant to chapter 28-32. The hearing must be scheduled to begin no later than sixty days after the issuance of the ex parte temporary suspension. Within three days after the issuance of the ex parte suspension order, the board shall serve the podiatrist with a copy of the order along with a copy of the complaint and notice of the date set for the full hearing. The podiatrist may appeal the ex parte temporary suspension order prior to the full hearing. For purposes of this appeal, the district court shall decide whether probable cause reasonably requires the temporary suspension to adequately protect the public interests. The court shall give priority to the appeal for prompt disposition thereof. Unless ordered by the district court, an appeal by the podiatrist of the ex parte temporary suspension order does not stay the effectiveness or validity of the ex parte temporary suspension.
  2. A suspension, revocation, condition, limitation, qualification, or restriction of a license or permit is in effect pending determination of an appeal unless the court, upon petition and for good cause shown, otherwise orders.
  3. A license or permit to practice podiatric medicine is automatically suspended if a guardian of the person of a licensee or permittee is appointed by order of a court under chapter 30.1-28 or other similar provisions in this state or elsewhere for reasons other than the minority of the licensee or permittee, or the licensee or permittee is committed by order of a court under chapter 25-03.1 or other similar provisions of law in this state or elsewhere. The license or permit remains suspended until the licensee or permittee is restored to capacity by a court and, upon petition by the licensee or permittee, the suspension is terminated by the board after a hearing.
  4. The board may restore and reissue a license or permit to practice podiatric medicine and may impose as a condition of the license or permit any disciplinary or corrective measure.
  5. The board may revoke the license of any podiatrist who fails to renew a license. A revocation may occur after six months from the date when all renewal fees and other conditions must be paid or completed and be in effect before any hearing upon written notice to the podiatrist of the revocation. A hearing must be held within sixty days of the service of the notice of revocation upon the podiatrist.

Source: S.L. 1991, ch. 450, § 15.

43-05-16.3. Powers of the board — Podiatrist cooperation.

  1. In investigating a podiatrist under this section, the board may subpoena the podiatrist and medical records relating to the practice of the podiatrist under investigation. The confidentiality of the subpoenaed records under any other law does not affect the validity of the board’s subpoena nor the admissibility of the records in board proceedings; however, the proceedings and records of the board which are exempt from subpoena, discovery, or introduction into evidence under chapter 23-34 are not subject to this subsection. Records of the board which are medical records subpoenaed under this subsection are confidential.
  2. A podiatrist or applicant for license under this chapter who is the subject of an investigation by the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any question raised by the board relating to the subject of the investigation and providing copies of patient medical records or other documentation to assist the board in its investigation. The board shall pay for the copies requested. Except in the case of subpoenaed records, if the board does not have written consent from a patient permitting access to the patient’s records, the podiatrist or applicant for license shall delete any data in the record that identifies the patient before providing the record to the board.
  3. The board may subpoena witnesses relating to the practice of any podiatrist under investigation.
  4. The board may employ independent investigators when necessary.
  5. The board may hold confidential conferences with any complainant or podiatrist with respect to any complaint.
  6. If the board determines a violation of section 43-05-16 may have occurred, the board may issue a formal complaint against a licensed podiatrist.

Source: S.L. 1991, ch. 450, § 16; 2013, ch. 318, § 2; 2015, ch. 288, § 1, effective August 1, 2015.

43-05-16.4. Mental examination — Access to medical data.

  1. If the board has probable cause to believe that a podiatrist or applicant for license falls within the provisions of subdivision l or q of subsection 1 of section 43-05-16, it may direct the podiatrist or applicant for license to submit to a mental or physical examination or an addiction evaluation. A podiatrist licensed or permitted under this chapter or an applicant for a license is considered to have consented to submit to a mental or physical examination or an addiction examination when directed in writing by the board and to have waived all objections to the admissibility of the examiner’s testimony or examination reports on the ground that the examination constitutes a privileged communication. The failure of a podiatrist or applicant for a license to submit to an examination when directed constitutes an admission of the allegations against the podiatrist or applicant for license and a default and final order may be entered without the taking of testimony or presentation of evidence unless the failure was due to circumstances beyond the podiatrist’s or applicant’s control. A podiatrist or applicant for a license must, at reasonable intervals, be given an opportunity to demonstrate that the podiatrist or applicant can resume or commence the competent practice of podiatric medicine with reasonable skill and safety to patients. In a proceeding under this subsection, neither the record of proceedings nor the orders entered by the board may be used against a podiatrist or applicant in any other proceeding.
  2. In addition to ordering a physical or mental examination or an addiction evaluation, the board may, notwithstanding any law to the contrary, obtain medical data and health records relating to a licensee or applicant without the licensee’s or applicant’s consent if the board has probable cause to believe that the podiatrist or applicant falls within the provisions of subdivision l or q of subsection 1 of section 43-05-16. The medical data may be requested from a provider, an insurance company, or a government agency. A provider, insurance company, or government agency shall comply with a written request of the board under this section and is not liable in any action for damages for releasing the data requested by the board if the data are released in accordance with a written request under this section unless the information is false and the provider giving the information knew or had reason to believe the information was false.

Source: S.L. 1991, ch. 450, § 17; 2019, ch. 225, § 14, effective August 1, 2019.

43-05-16.5. Reporting obligations.

  1. A person who has knowledge of any conduct constituting grounds for discipline under this chapter shall report the violation to the board.
  2. A hospital, clinic, or other health care institution, facility, or organization shall report to the board any action taken by the hospital, clinic, or other health care facility, institution, or organization to revoke, suspend, restrict, or condition a podiatrist’s privilege to practice or treat patients in the hospital, clinic, or other health care facility or institution, or as part of the organization, any denial of privileges or any other disciplinary action. The hospital, clinic, or other health care facility, institution, or organization shall also report the resignation of any podiatrist before the conclusion of any disciplinary proceeding or before the commencement of formal charges but after the podiatrist had knowledge that formal charges were contemplated or in preparation. No report is required of a podiatrist voluntarily limiting practice at a hospital if the podiatrist notifies all hospitals at which the podiatrist has privileges of the voluntary limitation and the reasons for it.
  3. Four times a year, as prescribed by the board, each insurer providing professional liability insurance to podiatrists shall submit to the board a report concerning any podiatrist against whom podiatric medical malpractice settlements or awards have been made. The report must contain at least the following information:
    1. The total number of podiatric malpractice settlements or awards made to the plaintiff.
    2. The date the podiatric malpractice settlements or awards to the plaintiff were made.
    3. The allegations contained in the claim or complaint leading to the settlements or awards made to the plaintiff.
    4. The dollar amount of each podiatric malpractice settlement or award.
    5. The regular address of the practice of the podiatrist against whom an award was made or with whom a settlement was made.
    6. The name of the podiatrist against whom an award was made or with whom a settlement was made.
  4. The clerks of court of the district courts or any other court of competent jurisdiction shall report to the board any judgment or other determination of the court that adjudges or includes a finding that a podiatrist is mentally ill; mentally incompetent; chemically dependent; guilty of a felony; guilty of a violation of federal or state narcotics laws or controlled substances acts; guilty of an abuse or fraud under Medicare, Medicaid, or medical assistance laws or rules; appoints a guardian of the podiatrist; or provides for the civil commitment of a podiatrist.
  5. Reports required by this section must be submitted no later than thirty days after the occurrence of the reportable event or transaction. The board may provide forms for the submission of reports required by this section, may require that reports be submitted on the forms provided, and may adopt rules necessary to assure prompt and accurate reporting.

In addition, the insurance company shall report to the board any information it has that tends to substantiate a charge that a podiatrist may have engaged in conduct prohibited under this chapter.

Source: S.L. 1991, ch. 450, § 18; 1997, ch. 364, § 3.

43-05-16.6. Board immunity and privileged communications.

  1. No member of the board, its committees, its employees, or its staff is liable for civil damages or subject to criminal prosecution for any action undertaken or performed within the scope of the functions of the board when acting without malice or gross negligence and in the reasonable belief the action was warranted.
  2. Every communication, oral or written, made by or on behalf of any person, institution, agency, or organization to the board or to any person designated by the board to investigate or otherwise hear matters relating to any disciplinary action, is privileged. No action or proceeding, civil or criminal, is permitted against any person, institution, agency, or organization for submitting a report to the board under section 43-05-16.5. For any report or communication not required by section 43-05-16.5, no action or proceeding, civil or criminal, is permitted against a person, institution, agency, or organization, except upon proof that the communication or report was made with malice.
  3. The protections afforded in this section do not prohibit a respondent or a respondent’s legal counsel from exercising the respondent’s constitutional right of due process under the law, or as prohibiting the respondent from normal access to the charges and evidence filed against the respondent as part of due process under the law.

Source: S.L. 1991, ch. 450, § 19.

43-05-16.7. Costs of prosecution — Disciplinary proceedings.

In any order or decision issued by the board in resolution of a disciplinary proceeding in which disciplinary action is imposed against a podiatrist, the board may direct the podiatrist to pay the board a sum not to exceed the reasonable and actual costs, including attorney’s fees, incurred by the board in the investigation and prosecution of the case. When applicable, the podiatrist’s license may be suspended until the costs are paid to the board.

Source: S.L. 2001, ch. 364, § 2.

43-05-16.8. Loan for litigation expenses.

Subject to approval by the emergency commission, the board may borrow funds sufficient to pay for attorney’s fees and costs incurred in investigations, administrative proceedings, and litigation resulting from the board performing its duties. Notwithstanding section 43-05-15, the board may establish an annual renewal license fee for each year following the issuance of a loan under this section, and the fee must be maintained until the loan is fully repaid, including any accrued interest. The amount of the annual renewal license fee assessed under this section may not exceed one thousand five hundred dollars. Once the loan is paid in full, the annual renewal license fee must revert to the amount established by the board before the issuance of the loan. The notice of a proposed rule to assess the fee in this section or revert to the previous license fee may be sent by certified mail to each individual licensed by the board in lieu of the publication requirements for the notice in chapter 28-32.

Source: S.L. 2001, ch. 365, § 1; 2015, ch. 287, § 2, effective August 1, 2015.

43-05-17. Penalty.

A person violating any provision of this chapter for which another penalty is not provided is guilty of a class B misdemeanor. In addition, the civil remedy of injunction is available to the board to restrain and enjoin any violation of this chapter without the need to prove actual damages to any person.

Source: S.L. 1929, ch. 95, § 16; R.C. 1943, § 43-0517; S.L. 1975, ch. 396, § 11; 1991, ch. 450, § 20.

Cross-References

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-06 Chiropractors

43-06-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Approved and accredited doctor of chiropractic program” means a doctor of chiropractic program approved by the board and accredited by a board-approved entity, such as the council on chiropractic education or its successor or equivalent.
  2. “Board” means the state board of chiropractic examiners.
  3. “Certified chiropractic clinical assistant” means an individual certified by the board who in accordance with section 43-06-16.1 assists with basic health care duties in the practice of chiropractic under the supervision of a licensed doctor of chiropractic in good standing with the board.
    1. “The practice of chiropractic” includes:
      1. The examination, evaluation, and diagnosis by means including x-ray, other appropriate diagnostic imaging, clinical laboratory procedures, or pertinent examinations taught by chiropractic colleges accredited by the council on chiropractic education or its successor or equivalent;
      2. The treatment of patients by means of the adjustment or manipulation of the spinal column, the vertebral articulations, the appendicular skeleton not excluding the skull, and of any displaced tissue of any kind or nature;
      3. The practice of physiotherapy, electrotherapy, or hydrotherapy;
      4. All other procedures, treatments, and interventions taught by chiropractic colleges accredited by the council on chiropractic education or its successor;
      5. The rating and reporting of any permanent impairment of function and the providing of professional opinions regarding any matter included in this definition of practice of chiropractic as set out herein;
      6. Delegation of basic health care duties in the practice of chiropractic to a certified chiropractic clinical assistant; and
      7. Telehealth.
    2. The practice of chiropractic does not include prescribing for, removal of, or administering to any person any medicine or drug to be taken internally which is now or hereafter included in materia medica, nor performing any surgery, except as is provided in this section, nor practicing obstetrics.
  4. “Telehealth” means the use of electronic communications to provide and deliver chiropractic-related information and chiropractic services, including chiropractic-related information and services, over any distance. Telehealth encompasses chiropractic care and chiropractic promotion activities, including education, advice, reminders, interventions, and the monitoring of interventions.

Source: S.L. 1915, ch. 228, § 4; 1925 Supp., § 523a4; S.L. 1933, ch. 82, § 2; R.C. 1943, § 43-0601; S.L. 1989, ch. 506, § 1; 1991, ch. 451, § 1; 2015, ch. 289, § 1, effective August 1, 2015; 2017, ch. 286, § 2, effective August 1, 2017; 2021, ch. 307, § 1, effective July 1, 2021.

Notes to Decisions

Practice of Medicine.

Permitting chiropractor to give opinion on reasonable “medical” certainty as to permanancy of vertebral injury was not error since practice of chiropractic is the practice of medicine, although in a restricted form. Klein v. Harper, 186 N.W.2d 426, 1971 N.D. LEXIS 180 (N.D. 1971).

Collateral References.

Competency as expert in personal injury action as to injured person’s condition, medical requirements, nature and extent of injury, and the like, 52 A.L.R.2d 1384.

Scope of practice of chiropractic, 16 A.L.R.4th 58.

Liability of chiropractors and other drugless practitioners for medical malpractice, 77 A.L.R.4th 273.

43-06-02. Who is exempt from the provisions of this chapter.

This chapter does not apply to:

  1. Chiropractors from the District of Columbia, or other states, territories, or countries who are in actual consultation in this state.
  2. Students enrolled in an approved and accredited doctor of chiropractic program, who qualify for the preceptorship program. Under this exception:
    1. The student shall perform the duties of an intern under the supervision of a chiropractor licensed in the state of North Dakota.
    2. The student and the licensed chiropractor shall meet the requirements established for the preceptorship by an approved and accredited doctor of chiropractic program and must be approved by the program and by the board.
  3. A graduate of a program who has not completed the examination requirements in section 43-06-10.1 who applies for a graduate internship under this exception:
    1. The graduate, under the supervision of a North Dakota licensed chiropractor, shall perform the duties of an intern.
    2. The graduate shall submit an initial application for North Dakota licensure.
    3. The graduate must be sponsored by a chiropractor with a current and valid North Dakota license in good standing, including no active complaints, with at least three years of experience.
    4. The graduate and the licenseholder shall provide proof of malpractice insurance.
    5. The graduate intern authorization granted by the board terminates within fifteen months from the date issued by the board.
  4. Nothing in this chapter is to be construed to impinge upon the practice of medicine by a physician and surgeon or an osteopathic physician and surgeon who has adequate training in the use of manipulative and adjustive procedures of the spine and appendicular skeleton.
  5. A chiropractor who is licensed in another jurisdiction of the United States or credentialed to practice chiropractic in another country if that chiropractor is teaching, demonstrating, or providing chiropractic in connection with teaching or participating in an educational seminar in the state for no more than sixty days in a calendar year.
  6. A chiropractor who is licensed in another jurisdiction of the United States or credentialed to practice chiropractic in another country if that chiropractor is practicing chiropractic in North Dakota as a member of the health care team for a sports, cultural, or performing arts group. Treatment may only be performed on members of the team or group the chiropractor is traveling with, for no more than sixty days in a calendar year.

Source: S.L. 1915, ch. 228, § 7; 1925 Supp., § 523a7; R.C. 1943, § 43-0602; S.L. 1983, ch. 472, § 1; 1989, ch. 506, § 2; 2015, ch. 289, § 2, effective August 1, 2015; 2021, ch. 307, § 2, effective July 1, 2021.

43-06-03. State board of chiropractic examiners — Members — Appointment — Qualifications.

  1. The state board of chiropractic examiners consists of seven members appointed by the governor. The members are:
    1. Five doctors of chiropractic;
    2. One certified chiropractic clinical assistant; and
    3. One consumer member.
  2. Each doctor of chiropractic appointed must:
    1. Have a license to practice chiropractic in North Dakota.
    2. Have been a resident of this state and have practiced chiropractic in this state for at least five consecutive years immediately before appointment to the board.
    3. Remain a resident of this state and continue in active practice in this state during the term of office.
    4. Be a licensee in good standing and must not be the subject of a pending investigation by the board for violations under this chapter.
  3. Each certified chiropractic clinical assistant appointed must:
    1. Be certified as a chiropractic clinical assistant and meet the requirements of section 43-06-16.1.
    2. Be actively engaged in the practice of a certified chiropractic clinical assistant in the state for at least one year immediately preceding appointment to the board.
  4. Each consumer member appointed:
    1. Must be a resident of the state for at least five years immediately preceding appointment to the board.
    2. May not have personal or familial financial relationships to the chiropractic profession.
    3. May not be, and may not be a spouse of, a doctor of chiropractic, certified chiropractic clinical assistant, or licensed health care professional.
  5. An individual appointed to the board as a certified chiropractic clinical assistant may not participate in any activities related to the clinical examination of chiropractic licensure applicants.
  6. An individual appointed to the board as a consumer may not participate in any activities related to the clinical examination of chiropractic or certified chiropractic clinical assistant licensure applicants.

Source: S.L. 1915, ch. 228, § 1; 1925 Supp., § 523a1; R.C. 1943, § 43-0603; S.L. 1989, ch. 506, § 3; 2019, ch. 342, § 1, effective August 1, 2019.

Note.

Section 3 of chapter 342, S.L. 2019 provides, “ APPLICATION. This Act applies to appointments made to the board of chiropractic examiners after July 31, 2019.”

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-06-04. Board of chiropractic examiners — Members — Term of office.

  1. Each member of the board shall qualify by taking the oath of office required of civil officers and shall hold office for a term of five years and until the member’s successor is appointed and qualified. The terms of office of the members of the board must be so arranged that only one term expires on the thirty-first day of August of any year except:
    1. Every fifth year, the governor shall appoint a doctor of chiropractic and a certified chiropractic clinical assistant to the board.
    2. One year after the appointments in subdivision a, the governor shall appoint a doctor of chiropractic and a consumer member to the board.
  2. A member may not serve for more than two consecutive five-year terms.
  3. If a member of the board is absent from two consecutive regular meetings, the board may declare a vacancy. Vacancies on the board must be filled by appointment by the governor.

Source: S.L. 1915, ch. 228, § 1; 1925 Supp., § 523a1; R.C. 1943, § 43-0604; S.L. 1989, ch. 506, § 4; 2019, ch. 342, § 2, effective August 1, 2019; 2021, ch. 307, § 3, effective July 1, 2021.

Note.

Section 3 of chapter 342, S.L. 2019 provides, “ APPLICATION. This Act applies to appointments made to the board of chiropractic examiners after July 31, 2019.”

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-06-04.1. Powers and duties of board.

  1. The board shall administer the provisions of this chapter and the administrative rules of the board relating to the practice of chiropractic. The board has all powers, rights, and duties as provided in chapter 28-32.
  2. The board shall verify the qualifications of applicants for licenses to practice chiropractic and of applicants for certification to practice as a certified chiropractic clinical assistant. The board shall examine and renew the licenses or certification of duly qualified applicants.
  3. The board shall regulate the practice of chiropractic and shall enforce the provisions of this chapter and the rules of the board. The board shall investigate complaints of violations and cause the prosecution of persons violating the provisions of this chapter or the administrative rules of the board.
  4. The board may appoint a peer review committee and employ personnel and incur expenses as may be necessary for the performance of the board’s duties and the enforcement of this chapter.
  5. The board may inspect upon probable cause, at all reasonable times, any chiropractic office or place where chiropractic services are performed.
  6. The board may set fees for licensure and renewal.
  7. The board may adopt and amend rules and regulations, consistent with this chapter governing the practice of chiropractic and the diagnosis and treatment of patients, the enforcement of this chapter, and proper performance of the board’s duties, including:
    1. A code of ethical conduct governing the practice of chiropractic.
    2. Requirements, standards, and examinations to determine the intellectual, educational, scientific, technical, and professional qualifications of applicants for license or certification.
    3. Matters pertaining to the content and conduct of examination.
    4. Matters pertaining to the operation and registration of chiropractic facilities.
    5. Matters pertaining to the practice and certification of chiropractic specialties by licensed doctors of chiropractic.
    6. The quantity, type, and character of postgraduate study to be done by any licensee in order to comply with this chapter.
    7. Set policies and procedures on what constitutes professional or unprofessional conduct.
    8. Any other rules or regulations as may be necessary to give this chapter full force and effect.

Source: S.L. 1989, ch. 506, § 5; 2015, ch. 289, § 3, effective August 1, 2015; 2017, ch. 286, § 3, effective August 1, 2017; 2021, ch. 307, § 4, effective July 1, 2021.

43-06-05. Meetings of board — When held — Place of meeting — Quorum — Officers — Seal — Compensation — Expenses — How paid.

The board shall hold regular meetings twice yearly at approximate six-month intervals and such special meetings as the board may deem necessary. The meetings must be held at such places as the board may designate. Four members of the board constitute a quorum. At the first meeting of the board of each calendar year, the members of the board shall elect from their membership a president, vice president, and secretary-treasurer. Each shall hold office for one year and until a successor is elected and qualified. The board shall have a seal and may adopt appropriate rules necessary to carry out the provisions of this chapter. A member of the board shall receive compensation in an amount to be fixed by regulation of the board for each day or portion of a day spent in the discharge of duties, such mileage as is provided by section 54-06-09, and must be reimbursed for actual and necessary expenses incurred in the discharge of official duties in accordance with section 44-08-04. In addition to the compensation, expenses, and mileage, the secretary-treasurer of the board is entitled to receive such salary as must be fixed by a resolution of the board adopted at a regular meeting.

Source: S.L. 1915, ch. 228, § 2; 1925 Supp., § 523a2; R.C. 1943, § 43-0605; S.L. 1983, ch. 472, § 2; 2015, ch. 289, § 4, effective August 1, 2015; 2021, ch. 307, § 5, effective July 1, 2021.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-06-06. Fund — How disbursed — Where deposited. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-06-07. Records of the board.

  1. The board shall keep a record of all its proceedings and a register of applications for licenses to practice chiropractic showing:
    1. The name and location of the institution from which each applicant received the applicant’s degree of doctor of chiropractic.
    2. The date when the degree of doctor of chiropractic was granted.
    3. Whether the applicant was licensed or rejected.
  2. The board shall maintain a register of certified chiropractic clinical assistants. A register is prima facie evidence of all matters recorded in the register.

Source: S.L. 1915, ch. 228, § 2; 1925 Supp., § 523a2; R.C. 1943, § 43-0607; 2017, ch. 286, § 4, effective August 1, 2017.

43-06-08. License required — Application — Examination required — Fee.

A person may not practice chiropractic in this state unless that person has a license from the state board of chiropractic examiners. A person who desires a license shall:

  1. Apply to the board;
  2. Submit an official transcript of successful completion of all required examinations;
  3. Submit an official transcript and diploma from an approved and accredited doctor of chiropractic program. The applicant may submit an application while the applicant is enrolled in the applicant’s last term but the board may not issue a license until the applicant has graduated and has provided the board with an official transcript and diploma as provided in this section; and
  4. Pay to the board a fee, to be determined by the board from time to time, of an amount not to exceed five hundred dollars.

Source: S.L. 1915, ch. 228, § 3; 1925 Supp., § 523a3; S.L. 1933, ch. 82, § 1; R.C. 1943, § 43-0608; S.L. 1965, ch. 298, § 1; 1983, ch. 472, § 3; 1989, ch. 506, § 6; 2013, ch. 319, § 1; 2015, ch. 289, § 5, effective August 1, 2015; 2021, ch. 307, § 6, effective July 1, 2021.

43-06-09. Chiropractor — Qualifications.

An applicant for licensure to practice chiropractic in this state must have a degree from or be enrolled in the last term of college at an approved and accredited doctor of chiropractic program.

Source: S.L. 1915, ch. 228, § 3; 1925 Supp., § 523a3; S.L. 1933, ch. 82, § 1; R.C. 1943, § 43-0609; S.L. 1965, ch. 298, § 2; 1983, ch. 472, § 4; 1989, ch. 506, § 7; 2015, ch. 289, § 6, effective August 1, 2015; 2021, ch. 307, § 7, effective July 1, 2021.

43-06-09.1. Conviction not bar to licensure or certification — Exceptions.

Conviction of an offense does not disqualify a person from licensure or certification under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a chiropractor or certified chiropractic clinical assistant, or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source: S.L. 1977, ch. 130, § 22; 2017, ch. 286, § 5, effective August 1, 2017.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-06-10. Examination — Subjects covered. [Repealed]

Source: S.L. 1915, ch. 228, § 3; 1925 Supp., § 523a3; S.L. 1933, ch. 82, § 1; R.C. 1943, § 43-0610; S.L. 1983, ch. 472, § 5; 1989, ch. 506, § 8; repealed by 2021, ch. 307, § 14, effective July 1, 2021.

43-06-10.1. National board examination.

The board shall accept all parts of the national board examination, or its successor or equivalent, providing all other requirements are met.

Source: S.L. 1983, ch. 472, § 6; 1989, ch. 506, § 9; 2015, ch. 289, § 7, effective August 1, 2015; 2021, ch. 307, § 8, effective July 1, 2021.

43-06-11. License — When issued — Who issues — Title used by licensed chiropractor.

A license to practice chiropractic in this state must be issued by the board to an applicant who has submitted proof of the required qualifications and passed the required examination. A license to practice chiropractic may not be granted except upon the affirmative vote of at least a quorum of the board. A licensed chiropractor may use the title doctor of chiropractic, chiropractor, chiropractic physician, or D.C.

Source: S.L. 1915, ch. 228, §§ 2, 4; 1925 Supp., §§ 523a2, 523a4; S.L. 1933, ch. 82, § 2; R.C. 1943, § 43-0611; S.L. 1957, ch. 296, § 1; 1957 Supp., § 43-0611; S.L. 1965, ch. 298, § 3; 1989, ch. 506, § 10; 2021, ch. 307, § 9, effective July 1, 2021.

43-06-11.1. Criminal history record checks.

The board may require any applicant, licensee, or certificate holder under this chapter to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a criminal history record check are the responsibility of the applicant, licensee, or certificate holder.

Source: S.L. 2011, ch. 94, § 2; 2017, ch. 286, § 6, effective August 1, 2017.

43-06-12. Re-examination — Fee. [Repealed]

Source: R.C. 1943, § 43-0612; S.L. 1983, ch. 472, § 7; 1989, ch. 506, § 11; 2013, ch. 319, § 2; repealed by 2021, ch. 307, § 14, effective July 1, 2021.

43-06-13. Term of license — Renewal — Fee — Requirements.

  1. A license to practice chiropractic in this state is valid for one year and must be renewed on or before the first day of September of each year.
  2. A renewal applicant shall pay a fee for renewal of a license. The fee for renewal of a license must be determined by the board from time to time, but may not exceed five hundred dollars.
  3. The board shall establish by rule the number of hours necessary for annual continuing education.
  4. The board shall establish by rule the accepted programs for the annual continuing education requirement.
  5. A license that has not been renewed, as a result of nonpayment of annual registration fees required by this chapter or as a result of the failure by the licensee to attend the required annual continuing education, may be reinstated by procedure adopted by the board in administrative rules. In either case, the board may charge an additional administrative fee to be fixed by the board at the time of consideration of the reinstatement, not to exceed four hundred dollars.
  6. In addition to the payment of fees, the board, after an investigation, may require a chiropractor whose license has not been renewed to submit to a re-examination as to the applicant’s qualifications to practice chiropractic before the applicant is reinstated, if the board in the exercise of the board’s discretion finds and determines the best interests of the public and the applicant will be served thereby.

Source: S.L. 1919, ch. 78, § 3; 1925 Supp., § 523b3; S.L. 1941, ch. 183, § 1; R.C. 1943, § 43-0613; S.L. 1965, ch. 298, § 4; 1983, ch. 472, § 8; 1989, ch. 506, § 12; 2013, ch. 319, § 3; 2015, ch. 289, § 8, effective August 1, 2015; 2021, ch. 307, § 10, effective July 1, 2021.

43-06-14. License — How recorded. [Repealed]

Repealed by S.L. 1989, ch. 506, § 17.

43-06-14.1. Peer review of services and fees.

  1. The board, upon receipt of a complaint, may appoint a peer review committee for the purpose of investigation of the matter and rendering an opinion thereon.
  2. The peer review committee must be appointed by the board and function as its agent and may consist of different individuals for review of different cases.
  3. The peer review committee shall investigate each inquiry submitted by the board. It shall examine such witnesses, review such patient and business records, and otherwise take whatever action is necessary to best ascertain the facts. It shall transmit all information it possesses to the board and shall report its findings to the board. The board shall furnish copies of the findings to the party making the complaint and to the chiropractor.
  4. The determinations of the peer review committee must be presumed valid and may be considered as prima facie evidence in any further proceedings by the board.
  5. The provision of treatment rendered to a patient by a chiropractor constitutes the consent of the chiropractor to the submission of all necessary records and other information concerning the treatment to the board or peer review committee.
  6. The board may adopt rules it considers necessary and appropriate to implement the peer review system and activities established under this chapter.
  7. All data and information, including patient records acquired by the board or the peer review committee, in the exercise of its duties and functions, are confidential and closed to the public. All board and peer review committee meetings wherein patient testimony or records are taken or reviewed are confidential and closed to the public.
  8. Except a patient, any party, including any governmental agency, making a request under this section may be charged a fee by the board equal to the administration costs of performing the review.

Source: S.L. 1989, ch. 506, § 14; 2015, ch. 289, § 9, effective August 1, 2015.

43-06-15. Grounds for denial of licensure, revocation, or suspension of license or other action of the board — Signed written statement — Investigation — Hearing.

  1. The board may deny an application for licensure and may revoke, suspend, or take such other action as provided in this section regarding the license of any chiropractor in this state who:
    1. Has a mental or physical condition such that the person is unable to safely engage in the practice of chiropractic.
    2. Has been declared incompetent or seriously mentally ill by a court of competent jurisdiction and thereafter has not been declared competent or released from supervision.
    3. Is suffering from alcoholism or drug addiction which endangers the public by impairing the chiropractor’s ability to practice safely.
    4. Procured the license to practice by fraud or mistake.
    5. Has engaged in unprofessional or dishonorable conduct, including false or misleading advertising, rendering excessive or inappropriate treatment, or charging unconscionable fees.
    6. Has been convicted of a crime involving sexual misconduct, infliction of physical harm or bodily injury to another individual, corruption, dishonesty, illegal possession or distribution of drugs, or any crime that would affect the person’s ability to practice as a licensed chiropractor. A copy of the record of conviction or plea of guilty or nolo contendere is conclusive evidence.
    7. Has aided, assisted, or enabled any unlicensed person to practice chiropractic contrary to this chapter or rule of the board.
    8. Has engaged in the practice of abortion.
    9. Has made use of any advertising statement of a character tending to deceive or mislead the public.
    10. Has failed to maintain a chiropractic facility in safe and sanitary conditions.
    11. Has incurred a disciplinary action, suspension, or revocation in another jurisdiction; has surrendered a license while a disciplinary complaint was pending in another jurisdiction; or has entered a settlement agreement to avoid or resolve a disciplinary complaint in another jurisdiction as a result of acts similar to acts described in this section or rule of the board. A certified copy of the board order in the other jurisdiction is conclusive evidence.
    12. Has committed any violation of the provisions of this chapter, the code of ethics, or rules as adopted by the board, including the failure to submit for physical or mental examination or to provide information as required by the board.
    13. Has practiced chiropractic while the license to practice was suspended or revoked.
    14. Has, while under probation, violated the terms of probation.
    15. Has failed to properly supervise a certified chiropractic clinical assistant or who has delegated duties to a certified chiropractic clinical assistant which are beyond the assistant’s education or training or which are beyond the scope of practice of a certified chiropractic clinical assistant.
  2. Any person, health care facility, business, or organization is immune from civil liability or criminal prosecution for submitting a signed written statement and other reports and information to the board under subsection 5 or for otherwise reporting to the board violations or alleged violations under this chapter. The reports are not public records.
  3. Members of the board and persons employed by the board or engaged in the investigation or prosecution of violations and in the preparation and management of charges of violations of this chapter on behalf of the board, including members of any peer review committee, are immune from civil liability and criminal prosecution for any actions, transactions, or publications in the execution of, or relating to, their duties under this chapter.
  4. A doctor of chiropractic who is the subject of an investigation by, or on behalf of, the board shall cooperate fully with the investigation. Cooperation includes responding fully and promptly to any question raised by, or on behalf of, the board relating to the subject of the investigation and providing copies of patient records or any pertinent information requested by the board, to assist the board in the board’s investigation.
  5. Any person, including a member of the board, may file a signed written statement and other reports and information with any member of the board against a licensed chiropractor charging the chiropractor with any of the offenses or conditions set forth in subsection 1. The statement must set forth a specification of the charges. When the statement has been filed, the board shall make an investigation as provided by subsection 6.
  6. When the statement and other reports and information have been filed, the board shall notify the licensed chiropractor of the allegations and thereafter shall investigate to determine whether the allegations in the statement constitute a basis for further proceedings. The investigation must be conducted in such manner and at such time and place as in the judgment of the board will best ascertain the facts. The board may appoint a peer review committee. The board, in order to pursue the investigation, may subpoena and examine witnesses and records, including patient records, and copy, photograph, or take samples. The board may require the licensed chiropractor to give statements under oath, to submit to a physical or mental examination, or both, by a physician or physicians and other qualified evaluation professionals selected by the board if it appears to be in the best interests of the public that this evaluation be secured. The board may examine and review any relevant medical or psychological records, including test results and x-rays relative to the examination or treatment of the licensed chiropractor. A written request from the board constitutes authorization to release information. The medical or psychological information is not public record.
  7. If, based on the investigation or report from a peer review committee, the board has reasonable cause to believe there is a basis for further proceedings, the board shall prepare a complaint and serve the complaint, along with a notice of hearing, on the licensed chiropractor and thereafter proceed with a hearing on the matter under chapter 28-32. All hearings must be held in Bismarck unless the board and the licensed chiropractor agree otherwise.
  8. After the hearing, the board, under section 28-32-39, shall make and give notice of the board’s determination or decision as to whether the offenses charged have been committed or the conditions charged do not exist. If the finding is in the negative, the board shall dismiss the charges. If the finding is in the affirmative, the board:
    1. Shall revoke the license;
    2. Shall suspend the licensee’s right to practice for a period not to exceed one year;
    3. Shall suspend the board’s judgment of revocation on terms and conditions determined by the board;
    4. Shall place the licensee on probation; or
    5. Shall take any other disciplinary action which the board in the board’s discretion considers proper, including the ordering of an adjustment to a patient’s bill or refund of an amount previously paid, including reasonable interest from the date of the order, to a patient or payer of any unconscionable fees for chiropractic services.
    6. In addition to the actions imposed in subdivisions a through e, may:
      1. Require payment of all costs of proceedings resulting in a disciplinary action, including administrative costs, investigation costs, attorney’s fees, peer review committee costs, witness costs and fees, the costs of the offices of administrative hearings services, and court costs.
      2. Impose a civil penalty not exceeding ten thousand dollars for each separate violation, to deprive the chiropractor of any economic advantage gained by reason of the violation found and to reimburse the board for the cost of the investigation and proceedings.
  9. In cases of revocation, suspension, or probation, the board shall record the facts of the case and all actions of the board.
  10. On the expiration of a term of suspension, the licensee must be reinstated by the board if the chiropractor applies to the board and furnishes evidence, satisfactory to the board, that the licensee is then of good character and conduct or restored to good health and the licensee has not practiced chiropractic during the term of suspension and is competent to practice in this state. If the evidence fails to establish those facts to the satisfaction of the board, the board may require the applicant to submit to an examination in accordance with this chapter or shall proceed to hearing on revocation with notice as provided in subsection 7.
  11. Any licensed chiropractor may take corrective action or voluntarily relinquish the chiropractor’s license to the board before a formal order of the board on such terms and conditions as may be agreed by the licensed chiropractor and the board.

Source: R.C. 1943, § 43-0615; S.L. 1989, ch. 506, § 13; 2001, ch. 293, § 19; 2015, ch. 289, §§ 10, 11, effective August 1, 2015; 2017, ch. 286, § 7, effective August 1, 2017; 2021, ch. 307, § 11, effective July 1, 2021.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

43-06-16. Duties of chiropractor.

Every licensed chiropractor practicing in this state shall:

  1. Observe all state and municipal regulations relating to the control of contagious and infectious diseases.
  2. Sign death and birth certificates.
  3. Sign certificates pertaining to public health.
  4. Report to the proper health officer in the manner required of licensed physicians.

All certificates signed by a chiropractor licensed to practice in this state are of the same force and effect as those signed by other licensed physicians.

Source: S.L. 1919, ch. 78, § 1; 1925 Supp., § 523b1; R.C. 1943, § 43-0616; S.L. 1989, ch. 506, § 15.

43-06-16.1. Certified chiropractic clinical assistant.

  1. A person may not practice as a certified chiropractic clinical assistant or claim to be a chiropractic assistant without certification from the board. The fee for initial certification may not exceed one hundred dollars per year and must be set by the board from time to time. The board may grant a temporary certification to an initial applicant who is waiting for a criminal history background check to be completed. This temporary certification expires automatically upon the applicant receiving a regular certification or being notified the application has been denied.
  2. To be certified to practice as a certified chiropractic clinical assistant, an applicant shall provide evidence satisfactory to the board the applicant:
    1. Graduated from high school, or holds a graduate equivalency degree.
    2. Is at least eighteen years of age.
    3. Successfully completed the certified chiropractic clinical assistant program and examination by the federation of chiropractic licensing boards.
    4. Successfully completed a criminal history record check as authorized by section 43-06-11.1.
    5. Completed an application in a manner and form provided by the board.
    6. Paid all applicable fees relative to the application process as determined by the board.
    7. Received practical experience to the extent required to demonstrate competency to safely provide patient care pertinent to the chiropractic office at which the certified chiropractic clinical assistant is employed.
  3. A certified chiropractic clinical assistant who is certified in another jurisdiction may apply for certification. The applicant shall provide evidence satisfactory to the board the applicant:
    1. Has current practice privilege in good standing as a certified chiropractic clinical assistant or equivalent granted by at least one jurisdiction with requirements similar to or greater than the requirements of this board; and
    2. Presented to the board current documentation that any practice privilege granted by another jurisdiction as a certified chiropractic clinical assistant or equivalent has not been suspended, revoked, or otherwise restricted for any reason except nonrenewal.
  4. A minimum passing examination result is required to obtain certification. The board may accept a chiropractic clinical assistant program examination such as the federation of chiropractic licensing board-certified chiropractic clinical assistant program examination or its board-approved successor or equivalent.
  5. The fee for renewal of the certification may not exceed one hundred dollars per year and must be set by the board from time to time. A certificate in this state is valid for one year and must be renewed on or before March first of every year.
    1. A certified chiropractic clinical assistant shall obtain three hours of continuing education every year after the initial certification to renew certification. These hours must be a program or seminar approved by providers of approved continuing education, a seminar approved for continuing education by another state’s board of chiropractic examiners or equivalent, or a seminar otherwise approved by the board. Proof of meeting continuing education requirements must be submitted with the certified chiropractic clinical assistant’s renewal application.
    2. For an applicant who first receives initial certification between December first of the year immediately before renewal and March first, the certification is deemed to be automatically renewed on March first for an additional year without payment of an additional renewal fee.
  6. A certified chiropractic clinical assistant must be under the direct supervision of a North Dakota licensed chiropractor in good standing with the board. Direct supervision means the oversight provided by the chiropractor over the clinical services performed by a certified chiropractic clinical assistant, and requires the chiropractor to be on the premises at all times and readily available to instruct the certified chiropractic clinical assistant throughout the performance of the clinical services.
  7. The certified chiropractic clinical assistant may assist the chiropractor in patient care involving physiotherapy, electrotherapy, hydrotherapy, chiropractic rehabilitative therapy, administrative processes, and other activities as needed to assist in the practice of chiropractic. The certified chiropractic clinical assistant may perform delegated duties commensurate with the certified chiropractic clinical assistant’s education and training, but may not evaluate, interpret, design, or modify established treatment programs of chiropractic care or violate any statute. Certified chiropractic clinical assistants may not participate in clinical decision making, render manipulative chiropractic care, create or change the course of a chiropractic treatment plan, or represent themselves as independent health care providers. A certified chiropractic clinical assistant may not perform medical imaging unless also licensed under chapter 43-62.
  8. The board may deny certification of an applicant, or may revoke, suspend, or take other appropriate disciplinary or corrective action regarding the certification of any certified chiropractic clinical assistant who:
    1. Has a mental or physical condition that renders the individual unable to safely engage in patient care.
    2. Has been declared incompetent by a court.
    3. Is suffering from alcoholism or drug addiction that endangers the public by impairing the certified chiropractic clinical assistant’s ability to practice safely.
    4. Procured the certification to practice by fraud or mistake.
    5. Has engaged in unprofessional or dishonorable conduct.
    6. Has been convicted of a crime involving sexual misconduct, infliction or physical harm or bodily injury to another individual, corruption, or dishonesty which would affect the certified chiropractic clinical assistant’s ability to safely engage in patient care.
    7. Has aided or assisted a noncertified individual to practice as a certified chiropractic clinical assistant.
    8. Has made advertising statements that are deceiving or misleading to the public.
    9. Has had disciplinary action taken in another jurisdiction.
    10. Has committed any violation of regulations regarding chiropractic found in this chapter or rules adopted by the board.
    11. Has practiced as a certified chiropractic clinical assistant while the certification was suspended or revoked.
    12. Is found to have committed unprofessional conduct, which includes:
      1. Willfully harassing, abusing, or intimidating a patient either physically or verbally.
      2. Any conduct that has endangered or is likely to endanger the health or safety of the public.
      3. Conviction of a crime related to the qualification of a certified chiropractic clinical assistant.
      4. Conviction of a felony or any offense involving sexual misconduct, infliction of physical harm or bodily injury to another individual, dishonesty, or corruption.
      5. Conviction of violating any law or regulation concerning the dispensing or administration of narcotics, dangerous drugs, or controlled substances.
      6. Knowingly making or signing any false certificates related to the chiropractic care administered.
      7. Participation in any act of fraud.
      8. Except as required by law, the unauthorized disclosure of any information about a patient revealed or discovered during the course of examination or treatment.
      9. Delegating professional responsibilities to a person that is not certified to provide the services.
      10. Initiating or engaging in any sexual conduct, sexual activities, or sexualizing behavior involving a current patient even if the patient attempts to sexualize the relationship, except when the patient is the certified chiropractic clinical assistant’s spouse or significant other.
  9. Disciplinary procedures will be conducted in accordance with chapter 28-32, with the following provisions:
    1. Complaints must be filed and signed in written form or may be considered by the board on the board’s own motion.
    2. The board shall notify the certified chiropractic clinical assistant and the employer regarding any complaints filed. Full and timely cooperation is required in the investigation.
    3. The board may appoint a peer review committee at the board’s discretion. The peer review committee has the same authority as a peer review committee appointed under section 43-06-14.1.
    4. If the board finds probable cause to impose disciplinary action, the board shall prepare a complaint and serve the complaint to the certified chiropractic clinical assistant and employer.
  10. Certification is not required for individuals who solely perform administrative activities of a nonclinical nature.

History. S.L. 2017, ch. 286, § 8, effective August 1, 2017; 2021, ch. 307, § 12, effective July 1, 2021.

43-06-17. Right of chiropractor to practice in public and private hospitals and institutions.

A licensed chiropractor may practice under the same standards as other health practitioners in any public or private hospital or other institution in this state, when requested so to do by any patient or the guardian of any patient.

Source: S.L. 1919, ch. 78, § 2; 1925 Supp., § 523b2; R.C. 1943, § 43-0617; 2013, ch. 320, § 1.

43-06-17.1. Temporary suspension — Appeal.

  1. If based on verified evidence the board determines by a clear and convincing standard that the evidence presented to the board indicates that the continued practice by the chiropractor would create significant risk of serious and ongoing harm to the public while a disciplinary proceeding is pending, and that immediate suspension of the chiropractor’s license is required to reasonably protect the public from the risk of harm, the board may order a temporary suspension ex parte. For purposes of this section, “verified evidence” means testimony taken under oath and based on personal knowledge. The board shall give prompt written notice of the suspension of the chiropractor, which must include a copy of the order and complaint, the date set for a full hearing, and, upon request, a specific description of the nature of the evidence, including a list of all known witnesses and a specific description of any documents relied upon by the board in ordering the temporary suspension must be made available to the chiropractor.
  2. An ex parte suspension remains in effect until a final order is issued after a full hearing or appeal under this section or until the suspension is otherwise terminated by the board.
  3. The board shall conduct a hearing on the merits of the allegations to determine what disciplinary action, if any, will be taken against the chiropractor who is the subject of the ex parte suspension. That hearing must be held not later than thirty days from the issuance of the ex parte temporary suspension order. The chiropractor is entitled to a continuance of the thirty-day period upon request for a period determined by the hearing officer.
  4. The chiropractor may appeal the ex parte temporary suspension order before the full hearing. For purposes of appeal, the district court shall decide whether the board acted reasonably or arbitrarily. The court shall give priority to the appeal for prompt disposition.
  5. Any medical record of a patient, or other document containing personal information about a patient, which is obtained by the board is an exempt record as defined in section 44-04-17.1.

History. S.L. 2015, ch. 289, § 12, effective August 1, 2015.

43-06-18. State’s attorney to enforce law.

The state’s attorney of each county in this state shall enforce section 43-06-19 and prosecute all violations of this section, and the executive director of the board, under the direction of the board, shall aid in the enforcement of this chapter.

Source: S.L. 1915, ch. 228, § 8; 1919, ch. 78, § 5; 1925 Supp., §§ 523a8, 523b5; R.C. 1943, § 43-0618; 2009, ch. 359, § 1; 2021, ch. 307, § 13, effective July 1, 2021.

43-06-19. Penalty.

  1. It is a class B misdemeanor for any person who fraudulently procures a license to practice chiropractic or who, without complying with the provisions of this chapter:
    1. Practices or attempts to practice chiropractic;
    2. Advertises as a chiropractor; or
    3. Uses the terms or letters, doctor of chiropractic, chiropractor, D.C., chiropractic physician, or any other title that will induce the belief that the person is engaged in the practice of chiropractic.
  2. It is an infraction for any person that fraudulently procures a certification to practice as a certified chiropractic clinical assistant or that, without complying with the provisions of this chapter:
    1. Practices or attempts to practice as a certified chiropractic clinical assistant;
    2. Advertises as a certified chiropractic clinical assistant; or
    3. Uses the terms or letters certified chiropractic clinical assistant, certified chiropractic clinical assistant, or any other title that will induce the belief the person is engaged in the practice of chiropractic as a certified chiropractic assistant.

Source: S.L. 1915, ch. 228, § 8; 1919, ch. 78, § 5; 1925 Supp., §§ 523a8, 523b5; R.C. 1943, § 43-0619; S.L. 1975, ch. 106, § 472; 1989, ch. 506, § 16; 2009, ch. 359, § 2; 2017, ch. 286, § 9, effective August 1, 2017.

Cross-References

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-07 Contractors

43-07-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Contractor” means any person engaged in the business of construction, repair, alteration, dismantling, or demolition of bridges, highways, roads, streets, buildings, airports, dams, drainage or irrigation ditches, sewers, water or gas mains, water filters, tanks, towers, oil, gas, or water pipelines, and every other type of structure, project, development, or improvement coming within the definition of real or personal property, including the construction, alteration, or repair of property to be held either for sale or rental, and includes subcontractor, public contractor, and nonresident contractor.
  2. “Contractor year” means March second through March first.
  3. “Nonresident contractor” means any contractor who does not have an established and maintained place of business within this state, or who has not made reports to North Dakota workforce safety and insurance within the previous year of employees within this state, and who has not made contributions to the North Dakota workforce safety and insurance fund accordingly, or who, during a like period has not made an income tax return in this state.
  4. “Public contract” means a contract with the state of North Dakota or any board, commission, or department thereof, or with any board of county commissioners, or with any city council or board of city commissioners, board of township supervisors, school board, or with any state or municipal agency, or with any other public board, body, commission, or agency authorized to let or award contracts for the construction or reconstruction of public work when the contract cost, value, or price exceeds the sum of four thousand dollars and includes subcontracts undertaken to perform work covered by the original contract or any part thereof when the contract cost, value, or price of the work included in the subcontract exceeds the sum of four thousand dollars.
  5. “Registrar” means the secretary of state.

Source: S.L. 1937, ch. 110, § 1; R.C. 1943, § 43-0701; S.L. 1963, ch. 304, § 1; 1993, ch. 54, § 106; 1995, ch. 397, § 1; 2003, ch. 561, § 3; 2017, ch. 306, § 1, effective August 1, 2017; 2019, ch. 343, § 1, effective August 1, 2019.

Cross-References.

Construction lien by contractor, see N.D.C.C. ch. 35-27.

Preference to North Dakota bidders and sellers, see N.D.C.C. §§ 44-08-01, 44-08-02.

Provision relating to workers’ compensation required in public contractor’s bond, see N.D.C.C. § 65-04-10.

Notes to Decisions

Contractors.

Considering that former subsection (3) (now subsection (1)) provides a clear and thorough definition of the term “contractor” consistent with the references to contractor activities contained in N.D.C.C. § 57-40.2-14, which is part of the use tax section of the code and discusses contractors involved in “the erection of buildings or the alteration, improvement or repair of real property,” the definition of “contractor” was held to apply to the term “contractor” used in N.D.C.C. § 57-40.2-03.3. Northern X-Ray Co. v. State by & Through Hanson, 542 N.W.2d 733, 1996 N.D. LEXIS 25 (N.D. 1996).

Taxpayer was not a contractor under the definition provided in former subsection (3) (now subsection (1)) of this section, where it assembled certain items of medical equipment in clinics, which were all put in place within a matter of days and could be equally easily removed, it was not registered as a contractor, and was not in the business of altering, repairing or improving real property; therefore, taxpayer was not liable for payment of contractor use tax under N.D.C.C. § 57-40.2-03.3. Northern X-Ray Co. v. State by & Through Hanson, 542 N.W.2d 733, 1996 N.D. LEXIS 25 (N.D. 1996).

Collateral References.

Who is a “contractor” within statutes requiring the licensing of, or imposing a license tax upon, a “contractor” without specifying the kinds of contractors involved, 19 A.L.R.3d 1407.

Subcontractors, duty and liability of subcontractor to employee of another contractor using equipment or apparatus of former, 55 A.L.R.4th 725.

Partnership or joint venture exclusion in contractor’s or other similar comprehensive general liability insurance policy, 57 A.L.R.4th 1155.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right of recovery for work done — modern cases, 44 A.L.R.4th 271.

43-07-02. License required — Construction fraud — Penalty.

  1. A person may not engage in the business nor act in the capacity of a contractor within this state when the cost, value, or price per job exceeds the sum of four thousand dollars nor may that person maintain any claim, action, suit, or proceeding in any court of this state related to the person’s business or capacity as a contractor without first having a license as provided in this chapter.
  2. Any person acting in the capacity of a contractor without a license is guilty of a class A misdemeanor. Regardless of whether a person is subjected to criminal prosecution under this subsection, and in addition to the license fee that may be assessed when the person applies for a license, the person may be assessed a civil penalty by the registrar, following written notice to the person of an intent to assess the penalty, in an amount not to exceed three times the amount set forth in section 43-07-07. Any civil penalty must be assessed and collected before a person is issued a license. The assessment of a civil penalty may be appealed in the same manner as appeals under section 43-07-04.
  3. A person commits construction fraud if:
    1. The person receives payment for a construction project by intentionally using deception as defined in section 12.1-23-10.
    2. The person receives payment for the purchase of materials or supplies and willfully fails to pay the supplier for the goods received.
    3. The person willfully abandons a construction project after receiving payment for services or materials. Abandonment under this subdivision arises if:
      1. A contractor fails substantially to commence any work agreed upon:
        1. Within sixty days of a starting date agreed upon in writing; or
        2. Within ninety days of the contract date if no starting date is agreed upon in writing; or
      2. A contractor fails to complete any work agreed upon in writing within ninety days of a completion date agreed upon in writing, or within one hundred eighty days of the contract date if no completion date is agreed upon in writing.
  4. It is a defense to prosecution under subsection 3 if:
    1. The person returned all of the payment received for work not performed or materials not supplied. If the person provided materials to the jobsite but did not pay suppliers for those materials, this defense does not apply. This defense is only valid if the payment was provided before criminal charges were filed.
    2. The person had a legitimate legal excuse for nonperformance.
    3. The person was not able to begin or complete the project because there were factors outside of the person’s control and the person made substantial efforts to resolve any dispute.
  5. The grade of the offense for violating subsection 3 is based on the amount of payment received. Payment of under ten thousand dollars is a class C felony; more than ten thousand dollars but not more than fifty thousand dollars is a class B felony; and more than fifty thousand dollars is a class A felony.

Source: S.L. 1937, ch. 110, § 2; R.C. 1943, § 43-0702; S.L. 1963, ch. 304, § 2; 1969, ch. 391, § 1; 1995, ch. 397, § 2; 1997, ch. 365, § 1; 2005, ch. 357, § 1; 2007, ch. 359, § 1; 2015, ch. 290, § 1, effective April 15, 2015.

Cross-References.

Bids on public contract to show that bidder is licensed, see N.D.C.C. § 43-07-12.

Collateral References.

Who is a “contractor” within statutes requiring the licensing of, or imposing a license tax upon, a “contractor” without specifying the kinds of contractors involved, 19 A.L.R.3d 1407.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right of recovery for work done — modern cases, 44 A.L.R.4th 271.

Notes to Decisions

Award Prior to Licensure Not Allowed.

Because the district court's award to the contractor included a time period when the contractor was not licensed, a remand was necessary to determine whether any portion of the unpaid services and materials were provided while the contractor was not licensed. Snider v. Dickinson Elks Bldg., LLC, 2018 ND 55, 907 N.W.2d 397, 2018 N.D. LEXIS 67 (N.D. 2018).

Construction.

Supreme Court of North Dakota interprets N.D.C.C. § 43-07-02 to allow a contractor to pursue an action or claim only for work performed while licensed. This interpretation is consistent with the text and furthers the purpose of the licensing statutes. Snider v. Dickinson Elks Bldg., LLC, 2018 ND 55, 907 N.W.2d 397, 2018 N.D. LEXIS 67 (N.D. 2018).

Unlike statutes in other states, N.D.C.C. § 43-07-02 did not expressly condition court action on licensure both at the time of entering into a contract and at all times while performing work under a contract. Snider v. Dickinson Elks Bldg., LLC, 2018 ND 55, 907 N.W.2d 397, 2018 N.D. LEXIS 67 (N.D. 2018).

43-07-03. Registrar authority.

The registrar may employ assistance and procure records, supplies, and equipment as necessary to carry out this chapter.

Source: S.L. 1937, ch. 110, § 3; R.C. 1943, § 43-0703; 2019, ch. 343, § 2, effective August 1, 2019.

43-07-04. License — How obtained — Failure to grant — Revocation for not in good standing.

  1. To obtain a license under this chapter, an applicant who is eighteen years of age or older shall submit, on forms the registrar prescribes, an application under oath containing a statement of the applicant’s experience and qualifications as a contractor. A copy of a certificate of liability insurance must be filed with the application and the contractor shall submit a statement from North Dakota workforce safety and insurance that the contractor has secured workforce safety and insurance coverage satisfactory to workforce safety and insurance. If the registrar deems it appropriate or necessary, the registrar may also require any other information to assist the registrar in determining the applicant’s eligibility to act in the capacity of a contractor, including, at the expense of the applicant, criminal history record information of the applicant or the officers, members, or partners of the applicant which is held or maintained by the bureau of criminal investigation or a similar entity in another state. The application must contain a statement that the applicant desires the issuance of a license under this chapter and must specify the class of license sought.
  2. The registrar may refuse to grant a license if the registrar determines the application contains incomplete information, or the applicant fails or refuses to authorize or pay for criminal history information requested by the registrar. The registrar shall notify the applicant in writing if the registrar does not grant the license and shall provide the applicant an opportunity to respond to or cure the defect in the application for a period of ten days from the date of the written notification. An applicant aggrieved by a decision of the registrar not to grant the license may appeal the decision to the district court of the applicant’s county of residence or Burleigh County.
  3. No sooner than twenty days after sending written notice to a contractor at the contractor’s last-known address, the registrar shall classify as not in good standing the license of any contractor who fails to:
    1. Maintain liability insurance coverage required by this section or by section 43-07-10;
    2. File, renew, or properly amend any fictitious name certificate required by chapter 45-11;
    3. Maintain an active status of a corporation or registration as a foreign corporation;
    4. Maintain an active status of a limited liability company or registration as a foreign limited liability company;
    5. File or renew a trade name registration as required by chapter 47-25;
    6. Maintain a limited liability partnership registration or foreign limited liability partnership registration as required by chapter 45-22; or
    7. Maintain a limited partnership certificate of limited partnership or foreign limited partnership certificate of authority.
  4. Any contractor who has been notified by the registrar that the contractor’s license is not in good standing shall cease soliciting or entering new contract projects. If the contractor fails to correct the deficiency specified in the notice by evidence satisfactory to the registrar within thirty days of the date of the notice or if the contractor solicits or enters new contract projects while the contractor’s license is not in good standing, the registrar shall use the procedures of chapter 28-32 to revoke the license of the contractor.

Source: S.L. 1937, ch. 110, § 4; R.C. 1943, § 43-0704; S.L. 1963, ch. 304, § 3; 1969, ch. 391, § 2; 1979, ch. 598, § 2; 1983, ch. 473, § 1; 1989, ch. 69, § 50; 1993, ch. 418, § 1; 1995, ch. 397, § 3; 1997, ch. 365, § 2; 1999, ch. 373, § 1; 2001, ch. 366, § 1; 2003, ch. 357, § 1; 2003, ch. 561, § 3; 2005, ch. 357, § 2; 2007, ch. 359, § 2; 2015, ch. 291, § 1, effective July 1, 2015.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Provision relating to workers’ compensation required in public contractor’s bond, see N.D.C.C. § 65-04-10.

43-07-04.1. Denial, suspension, or revocation of license — Eligibility.

  1. The registrar may deny any application for license, deny any application for renewal of license, or suspend or revoke any license, based on the applicant’s or licensee’s lack of eligibility to act in the capacity of a contractor, upon proof of one or more of the following:
    1. The application for a license contains false or misleading information;
    2. The applicant or licensee has been convicted of an offense that has direct bearing upon the applicant’s or licensee’s ability to serve the public as a contractor; or
    3. The licensee or applicant has engaged in conduct as a contractor which is dishonest or fraudulent and which the registrar finds injurious to the welfare of the public.
  2. Notwithstanding subdivision b of subsection 1, conviction of an offense does not make a person ineligible for licensure under this chapter unless, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.
  3. Any applicant denied a license or denied renewal of a license may appeal the decision to the district court of the applicant’s county of residence or Burleigh County.
  4. Section 43-07-15 applies to any decision by the registrar to revoke or suspend a license.

Source: S.L. 1977, ch. 130, § 23; 2015, ch. 291, § 2, effective April 16, 2015.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on, 89 A.L.R.2d 540.

43-07-05. Classes of licenses. [Repealed]

Source: S.L. 1937, ch. 110, § 5; R.C. 1943, § 43-0705; S.L. 1963, ch. 304, § 4; 1981, ch. 438, § 1; repealed by 2015, ch. 291, § 7, effective July 1, 2015.

43-07-06. Administrative and governing bodies may impose requirements.

Any administrative body or governing body, agency, or commission having power to enter into public contracts may impose reasonable requirements and conditions as conditions precedent to the awarding of a contract for the construction or reconstruction of public works in addition to the requirements imposed by this chapter.

Source: S.L. 1937, ch. 110, § 5; R.C. 1943, § 43-0706.

Cross-References.

Chapter inapplicable to authorized representatives of governmental entities, see N.D.C.C. § 43-07-08.

Collateral References.

Wages: validity of statute, ordinance or charter provision requiring that workmen on public works be paid the prevailing or current rate of wages, 18 A.L.R.3d 944.

Aliens: constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Equal opportunities clause: construction and operation of “equal opportunities clause” requiring pledge against racial discrimination in hiring under construction contract, 44 A.L.R.3d 1283.

Waiver of competitive bidding requirements for state and local public building and construction contracts, 40 A.L.R.4th 968.

Validity, construction, and effect of state and local laws requiring governmental units to give “purchase preference” to goods manufactured or services performed in state, 84 A.L.R.4th 419.

What projects involve work subject to state statutes requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 337.

Authority of state, municipality, or other governmental entity to accept late bids for public works contracts, 49 A.L.R.5th 747.

Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.

43-07-07. Classes of licenses — License fees — License renewal fees.

  1. Four classes of licenses may be issued under this chapter, which must be designated as class A, B, C, and D licenses. A holder of a license may engage in the contracting business within this state subject to the following limitations:
    1. The holder of a class A license is subject to no limitation as to the value of any single contract project.
    2. The holder of a class B license is not entitled to engage in the construction of any single contract project of a value in excess of five hundred thousand dollars.
    3. The holder of a class C license is not entitled to engage in the construction of any single contract project of a value in excess of three hundred thousand dollars.
    4. The holder of a class D license is not entitled to engage in the construction of any single contract project of a value in excess of one hundred thousand dollars.
  2. If applying for a license as described and required in this chapter, the applicant shall pay to the registrar the following fees:
    1. For a class A license, the sum of four hundred fifty dollars.
    2. For a class B license, the sum of three hundred dollars.
    3. For a class C license, the sum of two hundred twenty-five dollars.
    4. For a class D license, the sum of one hundred dollars.
  3. For a renewal of a license, the licensee shall pay to the registrar the following fees:
    1. For a class A license, the sum of ninety dollars.
    2. For a class B license, the sum of sixty dollars.
    3. For a class C license, the sum of forty-five dollars.
    4. For a class D license, the sum of thirty dollars.
  4. Twenty-five percent of all moneys collected by the registrar under this chapter must be deposited in the secretary of state’s general services operating fund to pay the cost to administer this chapter and the balance of the moneys collected must be deposited with the state treasurer, who shall credit that amount to the general fund of the state.

Source: S.L. 1937, ch. 110, §§ 5, 9; R.C. 1943, § 43-0707; S.L. 1969, ch. 391, § 3; 1981, ch. 438, § 2; 1993, ch. 75, § 14; 2015, ch. 291, § 3, effective July 1, 2015; 2019, ch. 343, § 3, effective August 1, 2019.

43-07-08. Exceptions.

This chapter does not apply to:

  1. Any authorized representative or representatives of the United States government, the state of North Dakota, or any county, municipality, irrigation district, reclamation district, or other political corporation.
  2. Any person who furnishes any fabricated or finished product, material, or article of merchandise which is not incorporated into or attached to real property by such person so as to become affixed thereto.

Source: S.L. 1937, ch. 110, § 5; R.C. 1943, § 43-0708; S.L. 1963, ch. 304, § 5; 1995, ch. 397, § 4.

Cross-References.

Administrative or governing bodies may impose conditions in addition to those required by this chapter, see N.D.C.C. § 43-07-06.

43-07-09. Duty of registrar — Expiration of license.

Within fifteen days from the date of application, the registrar may investigate and determine each applicant’s eligibility to act in the capacity of a contractor as provided in section 43-07-04.1, and no license may be issued to such applicant until the registrar receives all documentation necessary to obtain a license and the appropriate fee. The license issued on an original application entitles the licensee to act as a contractor within this state, subject to the limitations of such license, until the expiration of the then current contractor year ending March first, except that an initial license issued to a licensee in January or February is valid until March first of the subsequent year.

Source: S.L. 1937, ch. 110, § 6; 1943, ch. 163, § 1; R.C. 1943, § 43-0709; S.L. 1963, ch. 304, § 6; 1981, ch. 438, § 3; 1993, ch. 419, § 2; 1995, ch. 397, § 5; 1997, ch. 365, § 3; 1999, ch. 373, § 2; 2015, ch. 291, § 4, effective July 1, 2015; 2019, ch. 343, § 4, effective August 1, 2019.

43-07-09.1. Name changes.

Not later than ten days after the date of a change in a contractor’s name, the licensee shall notify the registrar of the name change on a form provided by the registrar. A name change must be accompanied by a ten dollar fee. A licensee may not change the name of the licensee if the change is associated with a change in the legal status other than a change in marital status. A corporation, limited liability company, limited liability partnership, or limited partnership registered with the registrar is not subject to this section.

Source: S.L. 1993, ch. 419, § 1; 1997, ch. 365, § 4; 2019, ch. 343, § 5, effective August 1, 2019.

43-07-10. Renewal of license — Grounds for nonrenewal — Time requirements — Invalidity of license for failure to renew.

  1. Any license issued under this chapter may be renewed for each successive contractor year by obtaining from the registrar a certificate for the current contractor year. To obtain a certificate for the current contractor year, the licensee shall file with the registrar an application that includes a listing of each project, contract, or subcontract completed by the licensee during the preceding calendar year in this state over the amount of twenty-five thousand dollars and the nature of the work of each project, contract, or subcontract. The registrar, within a reasonable time, shall forward a copy of the list to the state tax commissioner. The applicant shall include with the application a copy of a certificate of liability insurance naming the registrar as the certificate holder unless the registrar has a current valid certificate of insurance on file, and a certification that the applicant has submitted all payroll taxes, including North Dakota income tax, workforce safety and insurance premiums, and unemployment insurance premiums due at the time of renewal, which documents need not be notarized.
  2. The registrar may refuse to renew a license if the registrar determines the application contains false, misleading, or incomplete information or if the contractor’s license is not in good standing for any of the reasons listed in subsection 3 of section 43-07-04. The registrar shall notify the applicant in writing if the registrar does not grant the license and shall provide the applicant an opportunity to respond to or cure the defect in the application for a period of ten days from the date of the written notification. An applicant aggrieved by a decision of the registrar not to grant the license may appeal the decision to the district court of the applicant’s county of residence or Burleigh County.
  3. The application for a certificate for the current contractor year must be made to the registrar before March second of each year, except as provided otherwise under this chapter. At the time of filing the application for a certificate for the current contractor year, the applicant shall pay to the registrar the renewal fee established in section 43-07-07. If any contractor applies for a renewal under a class different from the license previously issued, the new class license may be issued upon the payment of the fee required for the issuance of the license of the class applied for. If any contractor fails to file an application for a certificate for the current contractor year by the March first deadline, the contractor’s license is not in good standing and the contractor is deemed to be unlicensed within the meaning of section 43-07-02. Within sixty days after March first, the registrar shall notify the contractor by mail that the contractor’s license is not in good standing. The contractor then has until June first to renew by paying a penalty fee of fifty dollars, filing an application for a certificate for the current contractor year, and paying the renewal fee. A contractor who applies for a certificate for the current contractor year before or within ninety days of the filing deadline is not subject to the investigation authorized in section 43-07-09. After the June first deadline any licenses not renewed are expired. Any application for a certificate for the current contractor year must be fully completed within sixty days of the date the application is received by the registrar or the registrar shall return the application to the contractor who then is subject to section 43-07-09. The registrar may destroy all renewals provided for in this section after the renewals have been on file for six years.

Source: S.L. 1937, ch. 110, § 6; 1943, ch. 163, § 1; R.C. 1943, § 43-0710; S.L. 1963, ch. 304, § 7; 1969, ch. 391, § 4; 1979, ch. 460, § 1; 1981, ch. 438, § 4; 1983, ch. 473, § 2; 1991, ch. 452, § 1; 1993, ch. 54, § 106; 1993, ch. 418, § 2; 1995, ch. 397, § 6; 1997, ch. 365, § 5; 1999, ch. 373, § 3; 2001, ch. 367, § 1; 2003, ch. 561, § 3; 2005, ch. 357, § 3; 2007, ch. 359, § 3; 2009, ch. 462, § 2; 2015, ch. 290, § 2, effective April 15, 2015; 2015, ch. 291, § 5, effective April 15, 2015; 2019, ch. 343, § 6, effective August 1, 2019.

Notes to Decisions

Effective Date of Renewal.

A renewed license is not effective until the certificate of renewal is obtained and is not effective retroactive to January 1 after having been obtained. Haugen v. Berthold, 267 N.W.2d 198, 1978 N.D. LEXIS 254 (N.D. 1978).

43-07-11. Contractor’s bond — Requirements. [Repealed]

Repealed by S.L. 1995, ch. 397, § 9.

43-07-11.1. Contracts with state.

  1. A contractor, resident or nonresident, is not eligible to enter a public contract with any department of the state of North Dakota, or any political or governmental subdivision of the state until satisfactory showing is made that the contractor has paid all delinquent income, sales or use taxes, if any, owed to the state pursuant to the provisions of the income, sales or use tax laws, and which have been assessed either by the filing of an income or sales and use tax return by the contractor, or by an assessment of additional income, sales or use taxes against the contractor by the commissioner which has become finally and irrevocably fixed, before the date that the contract was executed by the parties to the contract.
  2. A certificate from and by the tax commissioner satisfies the requirement of subsection 1. Upon failure to file such a certificate, the department or political or governmental subdivision shall refuse to execute the public contract.
  3. The provisions of this section apply to contracts executed after July 1, 1965.

Source: S.L. 1965, ch. 299, § 1; 1969, ch. 392, § 1; 2019, ch. 343, § 7, effective August 1, 2019.

43-07-12. Bids to show license issued.

All bids and proposals for the construction of any public contract project subject to this chapter must contain a copy of the license or certificate for the current contractor year of the license issued by the registrar, enclosed in the required bid bond envelope. A contract may not be awarded to any contractor unless the contractor is the holder of a license in the class within which the value of the project falls as provided under this section. A contractor must be the holder of a license at least ten days before the date set for receiving bids, to be a qualified bidder. A bid submitted without this information properly enclosed in the bid bond envelope may not be read or considered and must be returned to the bidder. This section does not apply to bids submitted:

  1. To the department of transportation;
  2. For use of municipal, rural, and industrial water supply funds authorized by Public Law No. 99-294 [100 Stat. 418];
  3. To the public service commission; or
  4. For use of federal aid highway funds authorized by Public Law No. 85-767 [72 Stat. 885; 23 U.S.C. 101 et seq.].

Source: S.L. 1937, ch. 110, § 8; 1943, ch. 163, § 1; R.C. 1943, § 43-0712; S.L. 1961, ch. 289, § 1; 1965, ch. 300, § 1; 1983, ch. 474, § 1; 1989, ch. 508, § 1; 1995, ch. 398, § 1; 2019, ch. 343, § 8, effective August 1, 2019.

Cross-References.

Sealed bids for purchase of personal property and equipment, time and place for opening bids, see N.D.C.C. § 44-08-01.1.

Notes to Decisions

Obtaining License or Renewal After Bid.

Bidder is required to hold a current contractor’s license or renewal thereof issued at least ten days prior to the date set for receiving bids, and city has no authority to contract with bidder who obtains his license or renewal after the bids are received. Haugen v. Berthold, 267 N.W.2d 198, 1978 N.D. LEXIS 254 (N.D. 1978).

43-07-13. Records and certified copies of records.

The registrar shall maintain in the registrar’s office, open to public inspection during office hours, a complete indexed record of all applications, licenses, certificates for the current contractor year, revocations, expirations, and other information maintained on contractors. The registrar may dispose of an inactive contractor file after two years if no attempts have been made to apply for a new license or renew the license. Disposal of the license will proceed according to the provisions of chapter 54-46. Before disposal and upon request, the registrar shall furnish a certified copy of any information maintained upon receipt of the fees prescribed in section 54-09-04. Any certificate or certified copy issued by the registrar under this section has the same force and effect as provided in section 54-09-02.1.

Source: S.L. 1937, ch. 110, § 10; R.C. 1943, § 43-0713; S.L. 1969, ch. 391, § 5; 1977, ch. 398, § 1; 1983, ch. 475, § 1; 1997, ch. 365, § 6; 2011, ch. 393, § 2; 2019, ch. 343, § 9, effective August 1, 2019.

43-07-14. Complaint for license revocation — Consumer fraud action.

  1. Any person may file a duly verified complaint with the registrar charging that the licensee is guilty of any of the following acts or omissions:
    1. Abandonment of any contract without legal excuse after a deposit of money or other consideration has been provided to the licensee. A rebuttable presumption of abandonment arises if:
      1. A contractor fails substantially to commence any work agreed upon, unless the failure is due to circumstances beyond the control of the contractor:
        1. Within sixty days of a starting date agreed upon in writing; or
        2. Within ninety days of the contract date if no starting date is agreed upon in writing; or
      2. A contractor fails to complete any work agreed upon in writing within ninety days of a completion date agreed upon in writing, or within one hundred eighty days of the contract date if no completion date is agreed upon in writing, unless the failure is due to circumstances beyond the control of the contractor.
    2. Diversion of funds or property received under express agreement for the prosecution or completion of a specific contract under this chapter, or for a specified purpose in the prosecution or completion of any contract, and their application or use for any other contract obligation or purpose to defraud or deceive creditors or the owner.
    3. Engaging in any fraudulent or deceptive acts or practices or misrepresentation as a contractor in consequence of which one or more persons is injured in a total amount exceeding three thousand dollars.
    4. The making of any false or misleading statement in any application for a license or renewal or by violating this chapter or being convicted of an offense the registrar determines has a direct bearing on the applicant’s or licensee’s ability to serve the public as a contractor as set out in section 12.1-33-02.1.
    5. Engaging in work without any trade or professional license as required for the work pursuant to local, state, or federal law.
    6. Failure to refund fully the contracting party’s advance payment if a rebuttable presumption of abandonment has arisen and the contracting party has made a request to the licensee for a refund.
  2. The complaint must be on a form approved by the registrar and must set forth sufficient facts upon which a reasonable individual could conclude that any of the acts or omissions in subsection 1 has been committed.
  3. Any act or omission under this section may also constitute grounds for the attorney general to bring an action under chapter 51-15 against the licensee or any unlicensed person engaging in the business or acting in the capacity of a contractor in violation of section 43-07-02 and subjects the licensee or any such unlicensed person to all provisions, procedures, remedies, and penalties provided for in chapter 51-15.

Source: S.L. 1937, ch. 110, § 11; R.C. 1943, § 43-0714; S.L. 1963, ch. 304, § 9; 1993, ch. 419, § 3; 1995, ch. 397, § 7; 1997, ch. 365, § 7; 2003, ch. 357, § 2; 2005, ch. 357, § 4; 2007, ch. 359, § 4.

Collateral References.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-07-15. Procedure for revocation or suspension of license — Restitution — Civil penalties — Appeal.

The registrar shall review each complaint filed under section 43-07-14. If the registrar determines a written complaint filed under section 43-07-14 provides sufficient facts upon which a reasonable person could conclude that one or more of the acts or omissions set forth in section 43-07-14 has been committed, the registrar may initiate an adjudicative proceeding in accordance with chapter 28-32. If, after an adjudicative proceeding or as part of an informal disposition under chapter 28-32, the registrar determines the licensee is guilty of an act or omission charged or if the licensee admits guilt to an act or omission charged, the registrar may suspend or revoke the contractor’s license, order a civil penalty of not more than one thousand dollars, order restitution in an amount not more than five thousand dollars, or impose some lesser sanction or remedy. The registrar may suspend the contractor’s license for a period of not more than sixty months. The registrar may not renew, reinstate, or issue a new license until the licensee has paid any civil penalty or restitution imposed under this section. The registrar may bring an action in district court to recover restitution or penalties under this section. A contractor aggrieved by a decision of the registrar in revoking or suspending the contractor’s license or ordering restitution or penalties may appeal the decision to the district court of that person’s county of residence or Burleigh County. Any licensee may not obtain a license under any name during the period of revocation or suspension. A “licensee” whose license is revoked or suspended includes any officer, director, agent, member, or employee of the licensee. The provisions of chapter 28-32 govern any appeal and proceedings under this section.

Source: S.L. 1937, ch. 110, § 11; R.C. 1943, § 43-0715; S.L. 1963, ch. 304, § 10; 1993, ch. 419, § 4; 1997, ch. 365, § 8; 2001, ch. 293, § 20; 2003, ch. 357, § 3; 2015, ch. 291, § 6, effective July 1, 2015.

43-07-16. Cancellation of license — Appeal. [Repealed]

Repealed by S.L. 1963, ch. 304, § 16.

43-07-17. Revocation of license — Relicensing.

A licensee whose license has been revoked may not be relicensed for a period of up to five years.

Source: S.L. 1937, ch. 110, § 12; R.C. 1943, § 43-0717; S.L. 1963, ch. 304, § 11; 1993, ch. 419, § 5; 1997, ch. 365, § 9; 1999, ch. 373, § 4.

43-07-18. Penalty. [Repealed]

Source: S.L. 1937, ch. 110, § 13; R.C. 1943, § 43-0718; S.L. 1963, ch. 304, § 12; 1965, ch. 106, § 473; 1995, ch. 397, § 8; 1999, ch. 373, § 5; 2005, ch. 357, § 5; repealed by 2015, ch. 290, § 3, effective April 15, 2015.

43-07-19. Nonresident contractors — Agent for service of process.

Every applicant for a contractor’s license who is not a resident of the state of North Dakota, by signing and filing the application, appoints the registrar as the applicant’s true and lawful agent upon whom may be served all lawful process in any action or proceeding against such nonresident contractor. The appointment in writing is evidence of the contractor’s consent that any process against the contractor which is so served upon the registrar is of the same legal force and effect as if served upon the contractor personally within this state. Registered foreign corporations entitled to do business in this state according to chapter 10-19.1, registered foreign limited liability companies entitled to do business in the state according to chapter 10-32.1, foreign limited liability partnerships entitled to do business in the state according to chapter 45-22, and foreign limited partnerships entitled to do business in the state according to chapter 45-10.2 and having a current registered agent and registered address on file in the registrar’s office do not need to appoint the registrar as agent for service of process under this section. Within ten days after service of the summons upon the registrar, notice of the service with the summons and complaint in the action must be sent to the defendant contractor at the defendant contractor’s last-known address by registered mail with return receipt requested and proof of the mailing must be attached to the summons. The registrar shall keep a record of all process served upon the registrar under this section, showing the day and hour of service. If service of process was made under this section, the court, before entering a default judgment, or at any stage of the proceeding, may order the continuance as may be necessary to afford the defendant contractor reasonable opportunity to defend any action pending against the defendant contractor.

Source: S.L. 1963, ch. 304, § 13; 1981, ch. 438, § 5; 1993, ch. 54, § 106; 1999, ch. 50, § 62; 1999, ch. 373, § 6; 2003, ch. 357, § 4; 2005, ch. 384, § 5; 2015, ch. 87, § 25, effective July 1, 2015; 2019, ch. 343, § 10, effective August 1, 2019.

43-07-20. Employment preference in contract.

In all contracts, except those which involve federal-aid funds and when a preference or discrimination would be contrary to a federal law or regulation, hereafter let for state, county, city, school district, or township construction, repair, or maintenance work under any laws of this state, there shall be inserted a provision by which the contractor must give preference to the employment of bona fide North Dakota residents, as determined by section 54-01-26, with preference given first to honorably discharged disabled veterans and veterans of the armed forces of the United States, as defined in section 37-19.1-01, who are deemed to be qualified in the performance of that work. The preference shall not apply to engineering, superintendence, management, or office or clerical work.

No contract shall be let to any person, firm, association, cooperative, corporation, or limited liability company refusing to execute an agreement containing the aforementioned provisions.

Source: S.L. 1971, ch. 431, § 1; 1973, ch. 347, § 1; 1993, ch. 54, § 106; 1995, ch. 399, § 1.

Cross-References.

Preference to North Dakota bidders and sellers, see N.D.C.C. §§ 44-08-01, 44-08-02.

Collateral References.

Aliens: constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Validity of state statute or local ordinance requiring, or giving preference to, the employment of residents by contractors or subcontractors engaged in, or awarded contracts for, the construction of public works or improvements, 36 A.L.R.4th 941.

Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.

43-07-21. Penalty — Injunction proceedings.

Any person violating any provisions of section 43-07-20 is guilty of a class B misdemeanor. A repeated violation constitutes legal grounds for a court, on proper application by the labor commissioner, to grant an injunction without requiring the posting of a bond or undertaking.

Source: S.L. 1971, ch. 431, § 2; 1975, ch. 106, § 474; 1995, ch. 399, § 2.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-07-22. Enforcement responsibility.

The labor commissioner has the primary responsibility of enforcing sections 43-07-20 and 43-07-21 and may make reciprocal agreements or arrangements with any other state or territory exempting the application of sections 43-07-20 through 43-07-22, and may examine records of employment relative to public contracts for such purposes. However, any person being adversely affected because of noncompliance with section 43-07-20 may also institute an appropriate civil action, and any person having knowledge of a violation may file a criminal complaint with the proper official.

Source: S.L. 1971, ch. 431, § 3; 1983, ch. 82, § 88.

43-07-23. Allowable retention of estimates — Interest on retainage.

Contracts entered between persons for the performance of work to be done by a contractor, except those contracts subject to section 40-22-37 or 48-01.2-13, or contracts governed by federal statutes or regulations which require other provisions with respect to retention, are subject to a maximum retention on amounts due under the contract as follows: retention of ten percent of each estimate presented is allowable until such time as the project is fifty percent complete, with no further retainage on estimates during the continuance of the contract. If the owner, governing board, or authorized committee invests the retained estimate funds, the interest earned on those retained funds is payable at the time of final payment on the contract to the contractor on whose account the moneys were held.

Source: S.L. 1981, ch. 439, § 1; 2007, ch. 403, § 13.

43-07-24. Duty to supply license number when applying for building permit — Display of number.

When applying for a building permit, a contractor shall supply the permit issuing official that contractor’s license number. That official shall enter those numbers on the permit. A person performing general contractor’s work on that person’s own property, even if exempt from the licensing requirements of this chapter, shall, when applying for a building permit, supply the building permit issuing official the license number, as soon as available, of each subcontractor engaged on the project and doing work covered by the permit. That official shall enter each number so supplied before inspection of the work.

Source: S.L. 1987, ch. 512, § 1.

43-07-25. Licensed contractors’ list.

On request, the registrar shall provide city and county enforcement officials with a list of contractors licensed under this chapter. The registrar shall also provide similar information to persons governed by section 43-07-24. Whenever the registrar obtains information on the activities of a contractor doing business in this state of which officials of workforce safety and insurance, job service North Dakota, or tax commissioner may be unaware and that may be relevant to the duties of those officials, the registrar shall provide any relevant information to those officials for the purpose of administering their duties.

Source: S.L. 1987, ch. 512, § 2; 1989, ch. 509, § 1; 2003, ch. 561, § 3.

43-07-26. Warranty repairs — Required notice.

Before undertaking any repair, other than emergency repair, or instituting any action for breach of warranty in the construction of a one-family or two-family dwelling, or an improvement with a value exceeding two thousand dollars to a dwelling, the purchaser or owner shall give the contractor written notice by mail, within six months after knowledge of the defect, advising the contractor of any defect and giving the contractor a reasonable time to comply with this section. Within a reasonable time after receiving the notice, the contractor shall inspect the defect and provide a response to the purchaser or owner, and, if appropriate, remedy the defect within a reasonable time thereafter. The contractor shall provide the purchaser or owner written notice of the requirements of this section at the time of closing for the property or, in the case of an improvement, at the time of completion of the improvement. For the purposes of this section, “reasonable time” means within thirty business days after the notice is mailed or any shorter period of time as may be appropriate under the circumstances.

Source: S.L. 2005, ch. 358, § 1.

CHAPTER 43-08 Dentists [Repealed]

[Repealed by S.L. 1959, ch. 319, § 27]

CHAPTER 43-09 Electricians

43-09-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Apprentice electrician” means an individual who is learning the trade under the personal supervision of a state-licensed electrician.
  2. “Board” means the state electrical board.
  3. “Class B electrician” means an individual who has the necessary qualifications, training, and technical knowledge to wire, install, and repair electrical apparatus and equipment in accordance with the standard rules and regulations governing such work, who has eighteen months’ experience in farmstead or residential wiring, and passed an examination before the state electrical board based upon the national electrical code as it applies to farmstead or residential wiring.
  4. “Journeyman electrician” means an individual who has the necessary qualifications, training, and technical knowledge to wire, install, and repair electrical apparatus and equipment and power limited systems in accordance with the standard rules and regulations governing such work.
  5. “Licensee” means an individual who holds a valid license issued by the board.
  6. “Master electrician” means an individual who has the necessary qualifications, training, experience, and technical knowledge to plan, lay out, and supervise the installation and repair of electrical wiring apparatus, and equipment for electric light, heat, power, and power limited systems, in accordance with the standard rules and regulations governing such work.
  7. “Nonelectrical system” means a system as defined by the articles contained in chapter 8 and other articles which contains class II or class III circuits and systems as defined by the national electrical code, as adopted by the board. Although the board may expand this definition, the board may not narrow this definition. The term does not include a circuit or system that is installed:
    1. Within an area of special occupancies, as defined under articles 500 through 517 of the national electrical code.
    2. For heat, light, or power.
    3. For the control of heat, light, or power, unless the circuit or system employs digital communication.
  8. “Power limited electrician” means an individual who has the necessary qualifications, training, experience, and technical knowledge to plan, layout, and supervise the installation and repair of a power limited system.
  9. “Power limited system” means a system as defined by the articles contained in chapter 8 and other articles which contains class II or class III circuits and systems as defined by the national electrical code, as adopted by the board. Although the board may expand this definition, the term does not include a nonelectrical system.

Source: S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0901; S.L. 1949, ch. 286, § 1; 1949, ch. 287, § 1; 1955, ch. 282, § 1; 1957 Supp., § 43-0901; S.L. 1967, ch. 347, § 1; 2019, ch. 344, § 1, effective August 1, 2019.

43-09-02. State electrical board — Members — Terms of office — Vacancies.

The state electrical board must consist of five members appointed by the governor for a term of five years with their terms of office so arranged that one term and only one term expires on June thirtieth of each year. One member of the board shall represent the public and may not be directly associated with the electrical industry. The board must include a master electrician who is a contractor, a journeyman electrician, a consumer member of a rural electric cooperative, and a person associated with an investor-owned utility. A member of the board shall qualify by taking the oath of office required of civil officers and shall hold office until that member’s successor is appointed and qualified. The governor shall fill any vacancy by appointment for the unexpired term of office.

Source: S.L. 1917, ch. 118, § 1; 1919, ch. 123, § 1; 1925 Supp., § 578b1; S.L. 1941, ch. 227, § 1; R.C. 1943, § 43-0902; S.L. 1949, ch. 287, § 2; 1955, ch. 282, § 2; 1957 Supp., § 43-0902; S.L. 1967, ch. 347, § 2; 1981, ch. 435, § 6.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-09-03. Qualifications of members of board. [Repealed]

Repealed by S.L. 1949, ch. 287, § 11.

43-09-04. Officers of board — Compensation of members.

The members of the board shall select from their members a president, a treasurer, and a secretary. Each appointive member of the board is entitled to receive such amount as may be set by the board, and in addition thereto, each member shall receive the necessary and actual expenses incurred by the member in the discharge of the member’s duties. The mileage and travel expense allowed may not exceed the amount provided for in section 54-06-09.

Source: S.L. 1917, ch. 118, § 1; 1919, ch. 123, § 1; 1925 Supp., § 578b1; 1941, ch. 227, § 1; R.C. 1943, § 43-0904; S.L. 1949, ch. 287, § 3; 1957 Supp., § 43-0904; S.L. 1967, ch. 347, § 3; 1975, ch. 398, § 1; 1977, ch. 399, § 1; 2011, ch. 307, § 1.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitations on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-09-05. Powers and duties of state electrical board — Biennial report.

The board shall adopt a seal and may adopt reasonable rules to carry out this chapter. The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04. The board shall appoint qualified inspectors. Upon receipt of notice of completion of any electrical wiring or power limited system installation involving a value of five hundred dollars or more, the inspectors shall inspect the electrical or power limited system installation and approve or condemn that installation. The inspector shall make a report of the inspection on forms prescribed by the board.

Source: S.L. 1917, ch. 118, §§ 1, 6, 8; 1919, ch. 123, §§ 1, 6; 1925 Supp., §§ 578b1, 578b6; S.L. 1941, ch. 227, §§ 1, 6; R.C. 1943, § 43-0905; S.L. 1949, ch. 287, § 4; 1957 Supp., § 43-0905; S.L. 1963, ch. 346, § 39; 1973, ch. 403, § 29; 1975, ch. 398, § 2; 1975, ch. 466, § 31; 1983, ch. 476, § 1; 1995, ch. 350, § 30; 2017, ch. 305, § 1, effective August 1, 2017; 2019, ch. 344, § 2, effective August 1, 2019.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Administrative Search Warrants.

North Dakota State Electrical Board had the authority to seek an administrative search warrant to inspect electrical work done on a homeowner’s addition to his home, but the issuance of the administrative search warrant was not a final, appealable order. N.D. State Elec. Bd. v. Boren, 2008 ND 182, 756 N.W.2d 784, 2008 N.D. LEXIS 189 (N.D. 2008).

43-09-06. Meetings of board.

The board shall hold a meeting in January of each year in Bismarck and may hold such other meetings as are necessary to conduct examinations and perform the other duties coming before it. Special meetings must be held at the time and place determined by the president, and upon ten days’ written notice given by the president to each member of the board.

Source: S.L. 1917, ch. 118, § 1; 1919, ch. 123, § 1; 1925 Supp., § 578b1; S.L. 1941, ch. 227, § 1; R.C. 1943, § 43-0906; S.L. 1967, ch. 347, § 4.

43-09-07. Expenses of board — How paid.

All reasonable and necessary expenses incurred in conducting the business of the board must be allowed and paid by the board.

Source: S.L. 1919, ch. 123, § 3; 1925 Supp., § 578b3; S.L. 1941, ch. 227, § 3; R.C. 1943, § 43-0907.

43-09-08. Treasurer to hold moneys of board — Use — Disbursement. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See N.D.C.C. § 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-09-09. License required — Examination — Board to issue license.

  1. A person may not undertake or plan to undertake with another person to plan, lay out, supervise, install, make additions, make alterations, or make repairs, in the installation of wiring, apparatus, or equipment for electric light, heat, or power or for a power limited system, unless licensed by the board.
  2. The board shall examine an applicant for licensure and if, upon a technical and practical examination, the applicant is found to possess the required knowledge and skill and to be versed in the laws of electricity, the applicant shall be issued a license in the class for which the applicant was examined. The license must be signed by the president and the secretary of the board and attested by the seal of the board.
  3. Each licensee or permitholder shall report that individual’s licensing or renewals to the electrical inspector, if there is one, in the city in which that individual operates.

Source: S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0909; S.L. 1955, ch. 282, § 3; 1957 Supp., § 43-0909; S.L. 1993, ch. 54, § 106; 2019, ch. 344, § 3, effective August 1, 2019.

43-09-09.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as an electrician or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source: S.L. 1977, ch. 130, § 24.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-09-09.2. Advertising prohibited — Exceptions — Liability — Penalty.

  1. Except as provided in this section, if a license is required under section 43-09-09, a person may not advertise to contract for electrical services without being licensed as or being associated with a class B electrician, master electrician, or power limited electrician, unless that person intends to contract the electrical services with a licensed electrical contractor.
  2. If a person associates with an electrician under subsection 1 and that association ends, that person is jointly and severally liable for any contracts entered under that association.
    1. A person violating this section is guilty of a class B misdemeanor for a first conviction, but no fine in excess of one hundred dollars and no term of imprisonment may be imposed.
    2. A person violating this section is guilty of a class A misdemeanor for a second or subsequent conviction, but the penalties are as follows:
      1. For a second conviction, no fine in excess of one thousand dollars and no term of imprisonment may be imposed.
      2. For a third or subsequent conviction, a fine not to exceed one thousand dollars, or imprisonment not to exceed thirty days, or both, may be imposed.

Source: S.L. 1989, ch. 510, § 1; 1995, ch. 400, § 1; 2015, ch. 292, § 1, effective August 1, 2015; 2019, ch. 344, § 4, effective August 1, 2019.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-09-10. Types of licenses.

The classes of electricians who may be licensed under section 43-09-09 are:

  1. Master electrician.
  2. Journeyman electrician.
  3. Class B electrician.
  4. Power limited electrician.

Source: S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0910; S.L. 1955, ch. 282, § 4; 1957 Supp., § 43-0910; 2019, ch. 344, § 5, effective August 1, 2019.

43-09-11. Qualifications.

An applicant for an electrician’s license must have the following experience and training:

  1. For licensure as a master electrician, an applicant must have completed one year’s experience as a licensed journeyman electrician.
  2. For licensure as a journeyman electrician, an applicant must have:
    1. Completed eight thousand hours’ experience in installing and repairing electrical wiring, apparatus, and equipment, which experience may not be obtained in less than three years.
    2. Effective for an applicant who registered with the board as an apprentice after January 31, 2008, completed at least one of the following:
      1. Successfully completed apprenticeship training approved by the board and completed eight thousand hours’ experience in installing and repairing electrical wiring, apparatus, and equipment.
      2. Successfully completed an appropriate course of study, which may not be less than two years or the equivalent of two years, at a board-approved institution of higher education and completed eight thousand hours’ experience in installing and repairing electrical wiring, apparatus, and equipment. The board may determine equivalent hours of education that may be applied as a credit against the eight thousand hours’ experience requirement under this paragraph.
  3. For licensure as a class B electrician, eighteen months’ experience in farmstead or residential wiring.
  4. For licensure as a power limited electrician:
    1. Hold a valid board-recognized tradesman certification; or
    2. Possess the necessary work experience and training, as approved by the board.

Source: S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0911; S.L. 1949, ch. 287, § 5; 1955, ch. 282, § 5; 1957 Supp., § 43-0911; S.L. 1967, ch. 360, § 5; 2007, ch. 360, § 1; 2019, ch. 344, § 6, effective August 1, 2019; 2019, ch. 345, § 1, effective March 7, 2019.

Note.

Section 43-09-11 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 344, Session Laws 2019, Senate Bill 2056; and Section 6 of Chapter 345, Session Laws 2019, House Bill 1157.

43-09-12. Examination — Requirements.

Each applicant for an electrician’s license shall pay the examination fee and shall take an oath and submit written evidence that the applicant has had the required experience.

Source: S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0912; S.L. 1993, ch. 54, § 106; 2019, ch. 344, § 7, effective August 1, 2019.

43-09-13. License fees.

Examination and annual license fees required to be paid for an electrician’s license must be set by the board.

Source: S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0913; S.L. 1949, ch. 287, § 6; 1955, ch. 282, § 6; 1957 Supp., § 43-0913; S.L. 1967, ch. 347, § 6; 1987, ch. 513, § 1.

43-09-13.1. Apprentice electrician registration.

An apprentice electrician shall register with the state electrical board within the first six months of employment and shall pay an annual registration fee in an amount set by the board. An apprentice electrician may work on installations only under the personal supervision of a licensed electrician as provided in section 43-09-18.

Source: S.L. 1967, ch. 347, § 7; 1987, ch. 513, § 2; 1993, ch. 112, § 2.

43-09-13.2. Inspectors — License required — Exception.

An individual employed by the state electrical board or a political subdivision to inspect electrical or power limited system installations must be licensed as a journeyman electrician or master electrician.

Source: S.L. 1989, ch. 511, § 1; 2019, ch. 344, § 8, effective August 1, 2019.

43-09-14. Master electrician and class B electrician — Undertaking — Fund. [Repealed]

Source: S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0914; S.L. 1949, ch. 287, § 7; 1955, ch. 282, § 7; 1957 Supp., § 43-0914; S.L. 1979, ch. 461, § 1; 1983, ch. 476, § 2; 1987, ch. 513, § 3; 1999, ch. 374, § 1; 2015, ch. 292, § 2, effective August 1, 2015; repealed by 2015, ch. 292, § 3, effective August 1, 2015.

43-09-15. Renewal of license — Denial, suspension, or revocation of licenses.

  1. An electrician’s license may be issued for a term of only one year, but may be renewed without examination upon the payment of the proper fee. If the licensee fails to renew the license for a period of three consecutive years or more, the licensee is required to appear for re-examination. The state electrical board may deny, suspend, revoke, or refuse to renew any license issued or applied for under this chapter for any of the following reasons:
    1. Failure or refusal to maintain or adhere to the minimum standards set forth in the electrical code referred to in section 43-09-21.
    2. Any cause for which the issuance of the license could have been refused had that information then existed and been known to the board.
    3. Commitment of any act of gross negligence, incompetency, or misconduct in the practice of the profession regulated under this chapter.
    4. Material misstatement, misrepresentation, or fraud in obtaining the license.
    5. After due notice, failed or refused to correct, within the specified time, any installation not in compliance with this chapter.
    6. Failure or refusal to make a deposit or acquire public liability insurance as required by section 43-09-20.
    7. Failure to pay or enter a written contract for repayment, under a payment schedule acceptable to the board, any financial obligation to the board.
    8. Failure to furnish certification of completion of education as required under section 43-09-15.1.
  2. If an individual’s license is denied, suspended, or revoked by the board, or that individual is refused a license by the board, that individual may appeal to the appropriate court.

Source: S.L. 1917, ch. 118, §§ 2, 4; 1919, ch. 123, §§ 2, 4; 1925 Supp., §§ 578b2, 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, §§ 2, 4; R.C. 1943, § 43-0915; S.L. 1967, ch. 347, § 8; 1983, ch. 476, § 3; 1987, ch. 513, § 4; 1989, ch. 512, § 1; 2019, ch. 344, § 9, effective August 1, 2019; 2019, ch. 345, § 2, effective March 7, 2019.

Note.

Section 43-09-15 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 345, Session Laws 2019, Senate Bill 2056; and Section 9 of Chapter 344, Session Laws 2019, House Bill 1157.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-09-15.1. Education.

An applicant for renewal of an electrician’s license pursuant to section 43-09-15 must have successfully completed at least eight hours each biennium, of education relating to the standards set forth in section 43-09-21 or as otherwise prescribed by the board. The board may not require more than sixteen hours of continuing education in each biennium. The board shall conduct education sessions each year at not fewer than six locations throughout the state. Attendance at such sessions, or attendance at other education sessions certified by the board as approved, fulfills the educational requirements of this section. The board may charge a fee for attendance at the education sessions at an amount to be determined by the board, but not to exceed ten dollars per attendee for each session. The board may expend funds to educate and encourage potential electricians into the trade.

Source: S.L. 1989, ch. 512, § 2; 2019, ch. 344, § 10, effective August 1, 2019; 2019, ch. 345, § 3, effective March 7, 2019.

Note.

Section 43-09-15.1 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 345, Session Laws 2019, Senate Bill 2056; and Section 10 of Chapter 344, Session Laws 2019, House Bill 1157.

43-09-16. When license not required.

The following persons are not required to be licensed by and are not subject to regulation by the board under this chapter:

  1. Employees of public utilities engaged in the manufacture and distribution of electrical energy while engaged in work directly pertaining to the manufacture and distribution of electrical energy. This exemption terminates at the first point of service attachment, except for the installing or testing of electric meters and measuring devices and the maintenance of electric meters and measuring devices.
  2. Employees, independent contractors, or subcontractors of a company that is a telecommunication carrier as defined under section 57-34-01 or that is a satellite or cable systems provider, while acting in the scope of employment or the terms of the contract.
  3. Employees, independent contractors, or subcontractors of dealers in household appliances, such as room air-conditioners, clothes dryers, dishwashers, freezers, garbage disposals, refrigerators, stoves, washing machines, water heaters, and similar appliances while installing and connecting such appliances to an existing electrical receptacle.
  4. A representative of a manufacturing firm that is installing or modifying controls of wiring solely on industrial machinery that is for use by the firm itself, and performed by or under the direction of a registered professional engineer who issues a state-accepted evaluation, which is to be maintained with the equipment.
  5. An individual who is installing a nonelectrical system.
  6. An individual who is installing a power limited system that is installed within a residential dwelling or is installed with a factory connector or cord powered by an existing electrical receptacle.

Source: S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0916; S.L. 1975, ch. 399, § 1; 1999, ch. 375, § 1; 2019, ch. 344, § 11, effective August 1, 2019.

43-09-17. Journeyman electrician’s permit.

The board, upon the recommendation of one master electrician and two journeyman electricians, may issue a permit for a journeyman electrician to engage in the journeyman electrician’s trade until the next meeting of the board for the examination of applicants. Such permit is not renewable.

Source: S.L. 1917, ch. 118, § 2; 1919, ch. 123, § 2; 1925 Supp., § 578b2; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 2; R.C. 1943, § 43-0917.

43-09-18. Apprentice.

An individual may serve as an apprentice under a licensed master electrician or power limited electrician, but a master electrician or power limited electrician may not allow an apprentice to work on any installation without personal supervision of a licensed electrician.

Source: S.L. 1917, ch. 118, § 5; 1919, ch. 123, § 5; 1925 Supp., § 578b5; S.L. 1941, ch. 227, § 5; R.C. 1943, § 43-0918; 2019, ch. 344, § 12, effective August 1, 2019.

43-09-19. Report of work done by licensee.

Every person licensed under the provisions of this chapter and doing electrical work shall report the same to the secretary of the board upon blanks furnished by the board for that purpose.

Source: S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0919; S.L. 1955, ch. 282, § 8; 1957 Supp., § 43-0919.

43-09-20. Installations made with master electrician, class B electrician, or power limited electrician — Requirement for liability insurance.

  1. A contract, agreement, or undertaking with another person for the installation of electrical wiring or power limited wiring or the installation of electrical or power limited system parts of other apparatus may not be entered by anyone other than a master electrician or power limited electrician. A class B electrician may not enter a contract, undertaking, or agreement for the installation of electrical wiring, except for:
    1. Farmstead electrical wiring; or
    2. Residential electrical wiring in one or two family dwellings located in a city with a population of two thousand five hundred or fewer.
  2. If a licensee is acting as a contractor, that licensee shall submit to the board evidence of the existence of public liability insurance with a licensed insurance carrier, with policy limits of at least five hundred thousand dollars.

Source: S.L. 1917, ch. 118, § 4; 1919, ch. 123, § 4; 1925 Supp., § 578b4; S.L. 1927, ch. 139, § 1; 1941, ch. 227, § 4; R.C. 1943, § 43-0920; S.L. 1949, ch. 287, § 8; 1955, ch. 282, § 9; 1957 Supp., § 43-0920; S.L. 1983, ch. 476, § 4; 2011, ch. 307, § 2; 2019, ch. 344, § 13, effective August 1, 2019.

43-09-21. Standards for wiring, apparatus, and equipment.

All electrical and power limited wiring, apparatus, or equipment must comply with the rules of the board made under authority of the laws of this state and in conformity with the approved methods of construction for safety to life and property. The regulations in the national electrical code and the national electrical safety code as approved by the American national standards institute are prima facie evidence of these approved methods. Although a city may make more stringent requirements by ordinance, application of the ordinance must be limited to individuals licensed by the board under this chapter. An electrical or power limited system installation may not be connected for use until proof has been furnished to the person supplying electrical energy that there is compliance with the applicable regulations. The manufacturer of a new manufactured building or modular unit shall make any changes required for the proof within fourteen days from the notice that the building or unit does not comply with the applicable regulations. This section does not apply to the movement of a new manufactured building or modular unit into or within this state before the process of being connected for use.

Source: S.L. 1917, ch. 118, §§ 6, 8; 1919, ch. 123, § 6; 1925 Supp., § 578b6; S.L. 1941, ch. 227, § 6; R.C. 1943, § 43-0921; S.L. 1985, ch. 476, § 1; S.L. 1993, ch. 54, § 106; 1999, ch. 351, § 2; 2019, ch. 344, § 14, effective August 1, 2019.

43-09-22. Inspection of installation — Condemnation.

  1. The board has jurisdiction over and shall provide inspection for all electrical installations. The board has jurisdiction over and shall provide inspection for all power limited system installations. If there is a disagreement between an electrician and an inspector over interpretation or over a correction for violation issued by any inspector, the executive director of the board shall review the identified disagreement and render a final decision, which either party may appeal to the board.
  2. The executive director of the board, as authorized by the board, may condemn installations hazardous to life and property or may order specific corrections to be made. The executive director may order disconnection of service after notice to the owner of the property. The order is subject to the owner’s right of appeal to the board. A condemned installation may not be reconnected for service until proof has been furnished that the installation has been brought up to the required standards.
  3. The board may charge a master electrician, class B electrician, or power limited electrician responsible for the installation a fee for inspections.
  4. A city may make provisions for inspection of all electrical and power limited systems installed within the corporate limits of the city. A city shall register the name of the inspector with the board within ten days of appointment. A city may not require inspection of an installation that is outside the jurisdiction of the board.

Source: S.L. 1917, ch. 118, §§ 6, 8; 1919, ch. 123, § 6; 1925 Supp., § 578b6; S.L. 1941, ch. 227, § 6; R.C. 1943, § 43-0922; S.L. 1997, ch. 366, § 1; 2019, ch. 344, § 15, effective August 1, 2019.

Notes to Decisions

Exhaustion of Remedies.

Homeowner could not challenge a district court’s decision to issue an administrative search warrant and order compelling an electrical inspection of their home because the decision was not a final, appealable order under N.D.C.C. § 28-27-02 because the statutory scheme contemplated additional proceedings before the State Electrical Board. N.D.C.C. § 43-09-22 provides a right of appeal from an inspector’s order and homeowner had not established that he had exhausted his administrative remedies before the Board. N.D. State Elec. Bd. v. Boren, 2008 ND 182, 756 N.W.2d 784, 2008 N.D. LEXIS 189 (N.D. 2008).

43-09-23. Criminal penalty — Civil proceedings.

A person that violates any of the provisions of this chapter is guilty of a class B misdemeanor. In addition to criminal proceedings, the board may commence administrative or civil court proceedings as follows:

  1. The board may issue a cease and desist order against a person allegedly making or offering to make installations in violation of section 43-09-09 or 43-09-09.2 based upon information provided to the board by its inspectors or other persons, by investigation reports, affidavits, complaints of witnesses, or oral testimony given to the board at a regular or special board meeting. Violation of the cease and desist order may be considered by the court in issuing a temporary or permanent restraining order and in ordering the payment of costs and attorney’s fees in proceedings authorized under this section.
  2. The board may apply to the district court in the county in which the violations have occurred for a temporary or permanent injunction under chapter 32-06, enjoining persons from performing, advertising, or contracting for making installations without a valid license issued by the board in violation of section 43-09-09 or 43-09-09.2. The court may not require a written undertaking, security, or bond as a basis for issuing any temporary or permanent restraining order under this section unless the court specifically orders and states the basis for requiring the security. Upon a determination that a violation of section 43-09-09 or 43-09-09.2 has occurred, the court may assess against the defendants the actual costs incurred and reasonable attorney’s fees necessary for the investigation and court proceedings against the unlicensed person.
  3. After an administrative hearing has been conducted by the board under chapter 28-32, an appeal from an order of the board or from the assessment of costs and attorney’s fees may be taken to the district court under chapter 28-32.

Source: S.L. 1917, ch. 118, § 7; 1919, ch. 123, § 7; 1925 Supp., § 578b7; S.L. 1927, ch. 139, § 7; 1941, ch. 227, § 7; R.C. 1943, § 43-0923; S.L. 1975, ch. 106, § 475; 1997, ch. 366, § 2; 2019, ch. 344, § 16, effective August 1, 2019.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-09-24. Special emergency. [Repealed]

Repealed by omission from this code.

43-09-25. License to nonresidents — Reciprocity.

To the extent that other states which provide for the licensing of electricians provide for similar action, the state electrical board may grant licenses of the same grade or class to electricians licensed by other states, upon payment by the applicant of the required fee, after being furnished with proof that the qualifications of the applicant are equal to the qualifications of holders of similar licenses in North Dakota.

Source: S.L. 1955, ch. 285, § 1; R.C. 1943, 1957 Supp., § 43-0925.

43-09-26. Exemption for coal mines.

The jurisdiction of the board and other requirements of this chapter do not apply to installations, wiring, apparatus, or equipment that are part of a coal mine permitted by the public service commission and are subject to the jurisdiction of the federal mine safety and health administration.

Source: S.L. 1993, ch. 112, § 3.

CHAPTER 43-10 Funeral Service Practitioners

43-10-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the state board of funeral service.
  2. “Crematorium” means a furnace or establishment for the cremation of corpses.
  3. “Embalming” means preparing dead human bodies for final disposition or removal by the injection of antiseptic or preservative preparations into the skin, the blood vessels, or cavities of the body, the external application of antiseptic solution, taking charge of the remains of those dead of any communicable disease, preparing dead human bodies for shipment or holding oneself out to do any of the above acts by advertising or any other means.
  4. “Final disposition” means the entombment, burial in a cemetery, cremation, removal from the state, or whole-body donation to a school of medicine of a dead human body.
  5. “Funeral directing” means the care and disposal of the body of a deceased person; the preserving, disinfecting, and preparing, by embalming or otherwise, the body of a deceased person for funeral services, transportation to a point of final disposition, burial, or cremation; or arranging, directing, or supervising a funeral, memorial service, or gravesite service.
  6. “Funeral establishment” means any place or premises devoted to or used in the holding, care, or preparation of a dead human body for final disposition or transportation or for mourning or funeral ceremony purposes.
  7. “Funeral practitioner” means a person licensed by the board to practice funeral directing and embalming.
  8. “Intern embalmer” means a person registered with the board to engage in learning the practice of embalming under the instruction and personal supervision of a duly licensed funeral practitioner.
  9. “Practice of funeral service” means to engage in funeral directing or embalming.
  10. “Preparation of the body” means embalming of the body or such items of care as washing, disinfecting, shaving, positioning of features, restorative procedures, care of hair, application of cosmetics, dressing, and casketing.

Source: R.C. 1943, § 43-1001; S.L. 1989, ch. 513, § 1; 1997, ch. 367, § 1; 2017, ch. 92, § 22, effective August 1, 2017.

Cross-References.

Care and custody of dead, see N.D.C.C. ch. 23-06.

Licensure of funeral establishments, see N.D.C.C. §§ 43-10-21 to 43-10-24.

Collateral References.

Validity and construction of statute, ordinance or other regulation in relation to funeral directors and embalmers, 89 A.L.R.2d 1338.

Liability in damages for withholding body from relatives, 48 A.L.R.3d 240.

Civil liability of undertaker in connection with embalming or preparation of body for burial, 48 A.L.R.3d 261.

Enforcement of preference expressed by decedent as to disposition of his body after death, 54 A.L.R.3d 1037.

Liability of cemetery in connection with conducting or supervising burial services, 42 A.L.R.4th 1059.

Civil liability of undertaker in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Dead bodies: liability for improper manner of reinterment, 53 A.L.R.4th 394.

43-10-02. State board of funeral service — Members — Appointment — Qualifications — Term of office — Oath — Vacancies — Removal.

The board consists of the state health officer and three persons appointed by the governor. Each member appointed by the governor shall serve for a term of four years and until a successor is appointed and qualified. The terms of office of the appointed members expire on the thirtieth day of June and must be so arranged that only one expires in any one year. The appointed members of the board must be persons practicing embalming in this state and must have practiced for a minimum of three years in North Dakota. Each member shall qualify by taking the oath of office required of civil officers. The secretary of state may administer the oath and it must be filed in the office of the secretary of state. A vacancy on the board must be filled by appointment by the governor for the unexpired term. The governor may remove any member of the board for good cause.

Source: S.L. 1905, ch. 111, §§ 1, 2; R.C. 1905, §§ 340, 341; C.L. 1913, §§ 540, 541; R.C. 1943, § 43-1002; S.L. 1989, ch. 513, § 2; 1997, ch. 367, § 2.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

State health officer, see N.D.C.C. § 23-01-05.

43-10-03. Officers of board — Compensation of members — Treasurer’s bond.

The members of the board may elect from their number a president, a secretary, and a treasurer. The treasurer must be bonded for the faithful discharge of the treasurer’s duties in the sum of two thousand dollars. The members shall receive their actual traveling expenses which may not exceed the amount specified in section 54-06-09 and other necessary expenses.

Source: S.L. 1905, ch. 111, §§ 2, 8; R.C. 1905, §§ 341, 347; C.L. 1913, §§ 541, 547; R.C. 1943, § 43-1003; S.L. 1975, ch. 258, § 19; 1983, ch. 477, § 1; 1989, ch. 513, § 3.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-10-04. Meetings of the board — Quorum.

The board shall meet at least once a year, and may hold such special meetings as the proper and efficient discharge of its duties requires. Timely notice of all meetings must be given to every member of the board. Three members constitute a quorum for the transaction of business.

Source: S.L. 1905, ch. 111, § 3; R.C. 1905, § 342; C.L. 1913, § 542; R.C. 1943, § 43-1004; S.L. 1989, ch. 513, § 4; 1997, ch. 367, § 3.

43-10-05. Power of board to adopt rules for transaction of business — Seal — License fees.

The board may:

  1. Adopt rules to administer and carry out this chapter.
  2. Adopt rules regulating the practice, supervision, and instruction of intern embalmers.
  3. Adopt rules relating to the professional conduct of funeral directors and intern embalmers.
  4. Adopt such rules for the transaction of its business and the management of its affairs as it deems expedient and proper to administer this chapter.
  5. Adopt and use a seal.
  6. Adopt rules requiring each funeral home, at the time of selection of merchandise and services from that funeral home, to disclose in writing to the person or persons making the selection:
    1. The total price at retail of the merchandise and services selected and a listing of what merchandise and services are included within such total.
    2. The price at retail of each item of supplemental service or merchandise requested.
    3. The amount of cash advances to the extent that the advances are known or can be ascertained at the time of the selection.
    4. The terms of payment for merchandise and services.
  7. Establish license and renewal fees for funeral service practitioners and funeral establishments within the limits imposed by this chapter.
  8. Adopt rules regulating the operation of funeral establishments and crematoriums.
  9. Appoint or employ persons to assist the board in carrying out its duties under this chapter.
  10. Accept and investigate complaints relating to conduct governed by this chapter.
  11. Issue subpoenas, examine witnesses, administer oaths, and investigate allegations of practices violating the provisions of this chapter.

Source: S.L. 1905, ch. 111, §§ 2, 6; R.C. 1905, §§ 341, 345; C.L. 1913, §§ 541, 545; R.C. 1943, § 43-1005; S.L. 1975, ch. 400, § 1; 1979, ch. 462, § 1; 1989, ch. 513, § 5; 1997, ch. 367, § 4.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-10-06. Duty of board to adopt rules to prevent the spread of contagious diseases.

The board shall adopt such rules as it deems proper for the disinfection of a deceased person and of bedding, clothing, apartments, or anything likely to be infected in case of death from a contagious or infectious disease. The rules must be disclosed to every person engaged in embalming and funeral service in this state.

Source: S.L. 1905, ch. 111, § 4; R.C. 1905, § 343; C.L. 1913, § 543; R.C. 1943, § 43-1006; S.L. 1989, ch. 513, § 6.

Cross-References.

Care and custody of dead, see N.D.C.C. ch. 23-06.

43-10-06.1. State board of funeral service to establish means of disposition.

The state board of funeral service shall provide by rule for the appropriate means of disposition for cremated remains held by a funeral home that have not been claimed as provided in section 43-10-26.

Source: S.L. 1989, ch. 514, § 1.

43-10-06.2. Continuing education requirements.

The board may adopt rules establishing requirements for the continuing education of persons licensed under this chapter. The board may refuse to renew, suspend, revoke, or place on probationary status any license issued under this chapter on proof that the licensee has failed to meet the applicable continuing education requirements. Applicants for accreditation of continuing education courses, classes, or activities may be charged a reasonable fee determined by the board.

Source: S.L. 1993, ch. 420, § 5.

43-10-06.3. Information seminars.

The board may conduct information seminars.

Source: S.L. 2009, ch. 360, § 1.

43-10-07. Records of board — Admissible evidence.

A transcript of any matter of record in the office of the board, with the certificate of the secretary thereof attached, under the seal of said board, is competent evidence of such matter of record in any court in this state.

Source: S.L. 1905, ch. 111, § 6; R.C. 1905, § 345; C.L. 1913, § 545; R.C. 1943, § 43-1007.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-10-08. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source: S.L. 1905, ch. 111, § 8; R.C. 1905, § 348; C.L. 1913, § 548; R.C. 1943, § 43-1008; S.L. 1963, ch. 346, § 40; 1973, ch. 403, § 30; 1975, ch. 466, § 32; 1989, ch. 513, § 7; 1995, ch. 350, § 31.

43-10-09. Use of fees — Funds kept by treasurer — How disbursed. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-10-10. License required.

A person may not practice funeral service in this state unless that person is licensed by the board or registered with the board as an intern embalmer.

Source: S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1010; S.L. 1983, ch. 477, § 2; 1989, ch. 513, § 8; 1997, ch. 367, § 5.

Cross-References.

Care and custody of dead, see N.D.C.C. ch. 23-06.

43-10-10.1. Funeral practice — Exceptions.

  1. Nothing in this chapter may be construed to prevent a person from doing work within the standards and ethics of that person’s profession and calling, provided that the person does not represent to the public that the person is engaging in the practice of funeral service.
  2. Nothing in this chapter may be construed to prevent embalming by commissioned medical officers in the armed forces of the United States or under the United States public health service while on active duty in a respective service.
  3. This chapter does not prevent the transportation of a dead human body in accordance with other applicable state and federal laws.
  4. This chapter does not prohibit ambulance or other emergency transportation of a dead human body.
  5. This chapter does not prohibit members of the clergy from performing funeral and gravesite or memorial services.
  6. This chapter does not prohibit individuals licensed in other states, as embalmers or funeral directors, from assisting funeral practitioners.
  7. This chapter does not prohibit individuals employed by a funeral establishment from performing nonprofessional tasks or activities that do not require independent, professional judgment under the supervision of an individual licensed to practice funeral service.

Source: S.L. 1997, ch. 367, § 6; 2009, ch. 360, § 2.

43-10-11. Examination required — Application — Qualification.

Any person who desires a license to practice funeral service shall apply to the board on a form provided by the board and submit to an examination. The applicant shall submit with the application proof that the applicant has the following qualifications:

  1. Is of good moral character.
  2. Has such preliminary preparation and education as the rules of the board require.
  3. Has completed a twelve-month internship in accordance with rules adopted by the board.

Source: S.L. 1905, ch. 111, §§ 4, 5; R.C. 1905, §§ 343, 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 543, 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1011; S.L. 1989, ch. 513, § 9; 1997, ch. 367, § 7.

43-10-11.1. Conviction not bar to licensure — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a funeral service practitioner or determines under section 12.1-33-02.1 that the person, following conviction of any offense, is not sufficiently rehabilitated.

Source: S.L. 1977, ch. 130, § 25; 1989, ch. 513, § 10.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-10-12. Examinations — Subjects covered — Written — Record. [Effective through August 31, 2022]

The examination for a license to practice funeral service must be in writing and must cover the following subjects:

  1. Anatomy.
  2. Embalming.
  3. Bacteriology.
  4. Chemistry.
  5. Pathology.
  6. Mortuary management.
  7. Restorative arts.
  8. Rules of the state department of health and the board governing the practice of funeral service.
  9. Other subjects that may be required by the board.

All examination papers must be kept on record by the board for a period of not less than three years.

Source: S.L. 1905, ch. 111, §§ 4, 5; R.C. 1905, §§ 343, 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 543, 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1012; S.L. 1949, ch. 288, § 1; 1957 Supp., § 43-1012; S.L. 1989, ch. 513, § 11; 1995, ch. 243, § 2; 1997, ch. 367, § 8.

43-10-12. Examinations — Subjects covered — Written — Record. [Effective September 1, 2022]

The examination for a license to practice funeral service must be in writing and must cover the following subjects:

  1. Anatomy.
  2. Embalming.
  3. Bacteriology.
  4. Chemistry.
  5. Pathology.
  6. Mortuary management.
  7. Restorative arts.
  8. Rules of the department of health and human services and the board governing the practice of funeral service.
  9. Other subjects that may be required by the board.

All examination papers must be kept on record by the board for a period of not less than three years.

Source: S.L. 1905, ch. 111, §§ 4, 5; R.C. 1905, §§ 343, 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 543, 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1012; S.L. 1949, ch. 288, § 1; 1957 Supp., § 43-1012; S.L. 1989, ch. 513, § 11; 1995, ch. 243, § 2; 1997, ch. 367, § 8; 2021, ch. 352, § 356, effective September 1, 2022.

43-10-13. License — When granted — Fee — Signed by majority of board — Nontransferable — Where displayed.

The board shall grant a license to practice funeral service if the applicant:

  1. Has the required qualifications;
  2. Has passed the required examination; and
  3. Has paid to the treasurer of the board a sum of not more than two hundred dollars, as established by the board.

The license must be signed by a majority of the board, be attested by the board’s seal, and specify by name the person to whom it is issued. A license is nonassignable, nontransferable, and must be displayed where it can be observed by the public.

Source: S.L. 1905, ch. 111, §§ 5, 6; R.C. 1905, §§ 344, 345; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, §§ 544, 545; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1013; S.L. 1979, ch. 462, § 2; 1989, ch. 513, § 12; 1993, ch. 420, § 1; 1997, ch. 367, § 9; 2009, ch. 360, § 3.

43-10-13.1. Limitations or qualifications placed on licensee.

The board, if the facts support such action, may place reasonable limitations or qualifications on the right to practice funeral service or to operate a funeral establishment or crematory.

Source: S.L. 1997, ch. 367, § 11.

43-10-14. License by reciprocity.

A licenseholder in good standing in another jurisdiction that imposes requirements for licensure which are at least as stringent as the requirements of this state may be issued a license after passing a written examination on questions concerning laws and rules of this state, upon payment of a fee established by the board, and proof of good moral character.

Source: S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1014; S.L. 1959, ch. 320, § 1; 1979, ch. 462, § 3; 1989, ch. 513, § 13; 1997, ch. 367, § 10; 2009, ch. 360, § 4.

43-10-15. License — Term — Renewal — Fee for renewal.

A license to practice funeral service is valid until the end of the year issued and may be renewed by the board upon the payment to the treasurer of the annual renewal fee before December thirty-first of each year. The amount of the fee may not exceed one hundred dollars. The board may refuse to renew a license for cause.

Source: S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1015; S.L. 1959, ch. 320, § 2; 1979, ch. 462, § 4; 1989, ch. 513, § 14; 1993, ch. 420, § 2; 1997, ch. 367, § 12; 2009, ch. 360, § 5.

43-10-15.1. Late renewal.

A license that has been expired may be renewed at any time within two years after its expiration on filing an application for renewal on a form prescribed by the board and payment of the renewal fee in effect on the last regular renewal date. If the license is not renewed within thirty days after its expiration, the licensee shall pay a late fee determined by the board not to exceed one hundred fifty dollars. Renewal under this section is effected on the date on which the application is filed, on the date which the renewal fee is paid, or on the date on which the late fee, if any, is paid, whichever last occurs. A license that is not renewed within two years after its expiration may be renewed by filing an application for renewal on a form prescribed by the board, payment of the late fee, and passing the law and rules examination.

Source: S.L. 1997, ch. 367, § 13; 2009, ch. 360, § 6.

43-10-15.2. Issuance of duplicate licenses.

Upon receipt of satisfactory evidence that a license or certificate has been lost, mutilated, or destroyed, the board may issue a duplicate license or certificate upon such terms and conditions as the board prescribes, and upon payment of a fee of ten dollars.

Source: S.L. 1997, ch. 367, § 14.

43-10-15.3. Change of name.

Any licensee desiring to change the name appearing on the licensee’s license may do so by applying to the board and paying a fee of ten dollars.

Source: S.L. 1997, ch. 367, § 15.

43-10-15.4. Intern embalmer — Application — Qualifications.

  1. The board shall issue a certificate of registration as an intern embalmer to each applicant who files an application upon a form and in a manner the board prescribes, accompanied by a fee not to exceed fifty dollars, and who furnishes sufficient evidence to the board that the applicant:
    1. Is at least eighteen years of age;
    2. Is of good moral character;
    3. Has completed an accredited four-year high school course of study;
    4. Has completed one year of accredited college or university studies; and
    5. Has been accepted to attend or is enrolled in an accredited college of mortuary science, or has graduated from an accredited college of mortuary science.
  2. An intern embalmer may not practice for more than six months before attending an accredited college of mortuary science.

Source: S.L. 1997, ch. 367, § 16; 2017, ch. 92, § 23, effective August 1, 2017; 2019, ch. 346, § 1, effective March 14, 2019.

43-10-15.5. Certificate of registration — Term — Renewal — Fee for renewal.

A certificate of registration as an intern embalmer is valid for one year and may be renewed by the board upon payment to the treasurer of the annual renewal fee before December thirty-first of each year. Registration may not be renewed more than three times. The board may refuse to renew registration for cause.

Source: S.L. 1997, ch. 367, § 17.

43-10-16. Grounds for disciplinary action — Reimbursement of costs.

The board may revoke, suspend, place on probation, or refuse to issue a license to practice funeral service or certificate of registration as an intern embalmer upon proof at a hearing that the applicant, licensee, or certificate holder:

  1. Is unfit to practice funeral service.
  2. Has violated this chapter or the rules of the board.

The board may impose a fee on any person or other legal entity subject to regulation under this chapter to reimburse the board for all or part of the costs of administrative actions resulting in disciplinary action, including the amount paid by the board for services from the office of administrative hearings, attorney’s fees, court costs, witness fees, staff time, and other expenses.

Source: S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1016; S.L. 1983, ch. 477, § 3; 1989, ch. 513, § 15; 1997, ch. 367, § 18.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Civil liability of undertakers in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Liability of cemetery in connection with conducting or supervising burial services, 42 A.L.R.4th 1059.

Civil liability of undertaker in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Dead bodies: liability for improper manner of reinterment, 53 A.L.R.4th 394.

43-10-16.1. Expiration of suspended license — Renewal.

A suspended license is subject to expiration and must be renewed as provided in this chapter, but the renewal does not entitle the holder of the license, while it remains suspended and until it is reinstated, to engage in the activity to which the license relates.

Source: S.L. 1997, ch. 367, § 19.

43-10-16.2. Restoration of license after revocation.

One year from the date of revocation, the former licensee may make application for initial licensure. In order to receive a new license, the applicant must satisfy the current requirements for licensure.

Source: S.L. 1997, ch. 367, § 21.

43-10-17. Revocation of license — When proceedings commenced — Hearing — Time. [Repealed]

Repealed by S.L. 1997, ch. 367, § 29.

43-10-18. Notice of hearing — Contents. [Repealed]

Repealed by S.L. 1997, ch. 367, § 29.

43-10-19. Hearing — Appeals.

Hearings regarding disciplinary action or denial of a license must be held under chapter 28-32. An appeal from the board’s final decision may be taken in accordance with the provisions of section 28-32-42.

Source: S.L. 1905, ch. 111, § 5; R.C. 1905, § 344; S.L. 1909, ch. 108, § 1; 1913, ch. 158, § 1; C.L. 1913, § 544; S.L. 1931, ch. 141, § 1; R.C. 1943, § 43-1019; S.L. 1983, ch. 477, § 4; 1989, ch. 513, § 18; 1997, ch. 367, § 20; 2001, ch. 293, § 21.

43-10-20. Penalty.

A person practicing or representing that the person is practicing funeral service, or preparing the dead for burial or shipment in violation of this chapter, is guilty of a class B misdemeanor. In addition to the criminal penalty provided, the civil remedy of injunction is available to restrain and enjoin violations of any provision of this chapter without proof of actual damages sustained by any person and without the board being required to file an undertaking.

Source: S.L. 1905, ch. 111, § 7; R.C. 1905, § 346; C.L. 1913, § 546; S.L. 1931, ch. 141, § 2; R.C. 1943, § 43-1020; S.L. 1975, ch. 106, § 476; 1989, ch. 513, § 19; 1997, ch. 367, § 22.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Validity and construction of statute, ordinance or other regulation in relation to funeral directors and embalmers, 89 A.L.R.2d 1338.

Liability of cemetery in connection with conducting or supervising burial services, 42 A.L.R.4th 1059.

Civil liability of undertaker in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

Dead bodies: liability for improper manner of reinterment, 53 A.L.R.4th 394.

43-10-21. Definition.

As used in sections 43-10-21 through 43-10-24, the term “funeral establishment” means a place of business situated at a specific street address or location, and used in the care and preparation for burial, transportation, or other disposition of dead human bodies, or used for the purpose of conducting funeral services.

Source: S.L. 1963, ch. 305, § 1; 1993, ch. 420, § 3; 2017, ch. 92, § 24, effective August 1, 2017.

43-10-22. Licensure of funeral establishments.

A person may not operate or manage a funeral establishment without a funeral establishment license issued by the board for each place of business. Except for on tribal land, a funeral establishment may not be located on tax-exempt property. A person desiring to operate a funeral establishment shall submit an application for an annual license for each funeral establishment to the secretary or executive secretary of the board accompanied by a license fee for each establishment of not more than one hundred dollars, as established by the board. A person operating or managing a funeral establishment shall annually, on or before December first, submit an application for renewal of a license with a renewal fee of not more than one hundred twenty-five dollars, as established by the board. A license is valid until the following January first, unless sooner revoked. An application must show that the funeral establishment has complied with all rules adopted by the board in regard to safety and sanitation and will be under the supervision of an individual licensed to practice funeral service. An applicant who has met these standards must be issued a license. In case of the death of an owner of a funeral establishment who leaves an established business as part or all of an estate, the board may issue a special renewable temporary license to the personal representative of the deceased person for the duration of the administration of the estate, but which may not exceed two years. The fee for the temporary license is the same as required for regular licenses.

Source: S.L. 1963, ch. 305, § 2; 1979, ch. 462, § 5; 1989, ch. 513, § 20; 1993, ch. 420, § 4; 1997, ch. 367, § 23; 2009, ch. 360, § 7.

Collateral References.

Validity and construction of statute, ordinance or other regulation in relation to funeral directors and embalmers, 89 A.L.R.2d 1338.

Funeral home as private nuisance, 8 A.L.R.4th 324.

43-10-22.1. Display of license.

The funeral establishment license issued by the board to a funeral establishment must be conspicuously displayed at the funeral establishment for which the license was issued.

Source: S.L. 1997, ch. 367, § 24.

43-10-23. Inspections — Hearings — Revocations — Appeal. [Effective through August 31, 2022]

The funeral establishment, or that part of a funeral establishment in which is conducted or intended to be conducted any funeral service business, must be open at all times for inspection by the board or the state department of health. The board or agents employed by it and the state department of health may make such inspections as are necessary of facilities and equipment of funeral establishments to ensure compliance with safety and sanitary rules adopted by the board or any other rules or federal regulations pertaining to funeral service whenever either deems the inspection advisable. The board may subpoena witnesses, administer oaths, and take testimony. All proceedings under this section must be conducted in accordance with chapter 28-32. The board may, after a hearing, revoke, suspend, or refuse to issue or renew a license upon good cause. A person aggrieved by the action of the board may appeal to the district court of the county in which the person resides or the district court of Burleigh County in accordance with chapter 28-32.

Source: S.L. 1963, ch. 305, § 3; 1989, ch. 513, § 21; 1995, ch. 243, § 2; 1997, ch. 367, § 25; 2009, ch. 360, § 8.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-10-23. Inspections — Hearings — Revocations — Appeal. [Effective September 1, 2022]

The funeral establishment, or that part of a funeral establishment in which is conducted or intended to be conducted any funeral service business, must be open at all times for inspection by the board or the department of health and human services. The board or agents employed by it and the department of health and human services may make such inspections as are necessary of facilities and equipment of funeral establishments to ensure compliance with safety and sanitary rules adopted by the board or any other rules or federal regulations pertaining to funeral service whenever either deems the inspection advisable. The board may subpoena witnesses, administer oaths, and take testimony. All proceedings under this section must be conducted in accordance with chapter 28-32. The board may, after a hearing, revoke, suspend, or refuse to issue or renew a license upon good cause. A person aggrieved by the action of the board may appeal to the district court of the county in which the person resides or the district court of Burleigh County in accordance with chapter 28-32.

Source: S.L. 1963, ch. 305, § 3; 1989, ch. 513, § 21; 1995, ch. 243, § 2; 1997, ch. 367, § 25; 2009, ch. 360, § 8; 2021, ch. 352, § 357, effective September 1, 2022.

43-10-24. Penalty.

Any person operating or managing a funeral establishment without a funeral establishment license in violation of section 43-10-22 is guilty of a class B misdemeanor.

Source: S.L. 1963, ch. 305, § 4; 1975, ch. 106, § 477; 1997, ch. 367, § 26; 2009, ch. 359, § 3.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Civil liability of undertakers in connection with transportation, burial, or safeguarding of body, 53 A.L.R.4th 360.

43-10-25. Licensure of crematoriums.

A person may not operate a crematorium without a license issued by the board. A person desiring to operate a crematorium shall submit an application for an annual license to the board. The license fee may not exceed one hundred dollars and must be the same as a funeral establishment license.

Source: S.L. 1989, ch. 513, § 22; 1997, ch. 367, § 27.

43-10-25.1. Grounds for disciplinary action.

The board may revoke, suspend, place on probation, or refuse to issue a license to operate a crematorium upon proof at a hearing that the applicant or licensee:

  1. Is unfit to operate a crematorium.
  2. Has violated this chapter or rules adopted by the board.

Source: S.L. 1997, ch. 367, § 28.

43-10-26. Disposition of stored cremated remains.

Any cremated remains in the possession of a funeral home in this state that have not been claimed within twelve months after the time of cremation may be disposed of in accordance with this section and section 43-10-06.1. At least thirty days prior to such disposition, any funeral home wishing to dispose of such remains shall send a written notice to the last-known address of the responsible person who directed and provided for the method of final disposition of the human remains to the effect that such remains will be disposed of unless claimed by the person within thirty days from the date of mailing such notice. The notice must be sent by registered mail, return receipt requested.

Source: S.L. 1989, ch. 514, § 1.

CHAPTER 43-10.1 Pre-Need Funeral Services

43-10.1-01. Definitions.

As used in this chapter:

  1. “Cemetery association” means any person owning, conducting, or maintaining a cemetery or plot for the burial of dead human bodies.
  2. “Cemetery merchandise” means all service or property to be used in funeral services or burials other than professional service or personal property to be used in funeral services.
  3. “Commissioner” means the securities commissioner.
  4. “Irrevocable itemized funeral contract” means an irrevocable pre-need funeral service contract that is an itemized listing of goods and services that will be received based on the contract.
  5. “Licensed funeral establishment” means a funeral establishment as defined and licensed in accordance with sections 43-10-21 and 43-10-22.
  6. “Pre-need funeral service contract” means any contract, other than an insurance contract, under which for a specified consideration paid in advance in a lump sum or by installments, a person promises, upon the death of a beneficiary named or implied in the contract, to furnish professional service or personal property to be used in funeral services, or to furnish cemetery merchandise.
  7. “Professional service or personal property to be used in funeral services” means all personal property, services, supplies, and equipment normally performed or furnished by a licensed embalmer, a licensed funeral establishment, or a cemetery association including any inside interment receptacles or containers into which a dead human remains may be directly placed, caskets, crypt beds, catafalques, and all other articles of merchandise incident to a funeral service, but excluding any outside interment receptacles into which any inside receptacle or container will be placed, grave lots, grave spaces, grave markers, monuments, tombstones, crypts, niches, and mausoleums unless these items are sold by a companion agreement or in contemplation of a trade or barter which includes the sale or rental of any inside interment receptacles or containers into which a dead human remains may be directly placed, caskets, crypt beds, catafalques, or other articles of merchandise incident to a funeral service.

Source: S.L. 1967, ch. 348, § 1; 1973, ch. 348, § 1; 1981, ch. 440, §§ 2, 3; 1985, ch. 317, § 75; 1993, ch. 54, § 106; 2001, ch. 368, § 1; 2021, ch. 308, § 1, effective April 16, 2021.

Collateral References.

Validity of statutes regulating pre-need contracts for the sale or furnishing of burial services and merchandise, 68 A.L.R.2d 1251.

Construction and effect of contracts or insurance policies providing preneed coverage of burial expense or services, 67 A.L.R.4th 36.

43-10.1-02. Pre-need funeral service contracts.

A person may not engage in the sale or execution of a pre-need funeral service contract unless that person is the operator, agent, employee, or manager of a licensed funeral establishment or cemetery association. As part of the sale of a pre-need funeral service contract, the seller shall inform the purchaser of the extent to which the person with the duty of final disposition under section 23-06-03 might be bound by any pre-need funeral arrangements.

Source: S.L. 1967, ch. 348, § 2; 1973, ch. 348, § 2; 2001, ch. 369, § 2; 2017, ch. 92, § 25, effective August 1, 2017.

Collateral References.

Construction and effect of contracts or insurance policies providing preneed coverage of burial expense or services, 67 A.L.R.4th 36.

43-10.1-03. Annual report filed with commissioner.

On or before January thirty-first of each year, the owner or manager of each cemetery association or licensed funeral establishment that has entered into any pre-need funeral service contracts during the preceding calendar year shall file a report covering the period of the preceding calendar year with the commissioner, which report must include:

  1. The name and address of the licensed funeral establishment or cemetery association and the name and address of the manager or operator thereof.
  2. The name of the purchaser and beneficiary of each pre-need funeral service contract entered into on behalf of the licensed funeral establishment or cemetery association during the preceding calendar year and the date each contract was made.
  3. The lump sum consideration paid upon such pre-need funeral service contract required to be reported under subsection 2 or the total amount in dollars of any installments paid upon each pre-need funeral service contract required to be reported under subsection 2.
  4. The name and address of the bank, credit union, savings and loan association, or trust company in which such consideration was deposited in accordance with section 43-10.1-03.1.
  5. The total in dollars of all sums received as consideration upon pre-need funeral service contracts executed by the licensed funeral establishment or cemetery association or in its behalf during all periods after July 1, 1973, which are undrawn or unexpended and on deposit in a bank, credit union, savings and loan association, or trust company or in the hands of the licensed funeral establishment or cemetery association.
  6. Such other information as may reasonably be required by the commissioner for the purpose of the proper administration of this chapter.

Such report must be accompanied by a filing fee of fifteen dollars and is a public record.

Source: S.L. 1967, ch. 348, § 3; 1973, ch. 348, § 3; 1975, ch. 401, § 1; 1981, ch. 440, § 4; 1989, ch. 125, § 2; 1989, ch. 306, § 2; 2001, ch. 368, § 2.

Cross-References.

Commissioner of securities, see N.D.C.C. § 10-04-03.

43-10.1-03.1. Payments on pre-need funeral contracts to be deposited — Depository shall keep record of deposit — Personal property storage.

  1. If payments are made to a person upon pre-need funeral service contracts, including irrevocable itemized funeral contracts, one hundred percent of the funds collected under the contracts for the sale of professional service or personal property to be used in funeral services and fifty percent of the funds collected under the contracts for the sale of cemetery merchandise must be deposited in or transferred to a trust company in this state or to a federally insured bank, credit union, or savings and loan association in this state, within ten days. The deposit must be placed in a federal deposit insurance corporation or national credit union administration insured account or certificate of deposit or negotiable debt obligation of the United States government. Payments received from the sale of professional service or personal property to be used in funeral services or cemetery merchandise which cannot or would not be serviced by a licensed funeral establishment or cemetery association in the area in which the service or property was sold are specifically included, regardless of whether the sales might otherwise be considered pre-need funeral service contracts, within the payments to be deposited under this section. If payments have been made under an irrevocable itemized funeral contract, the money must be carried in a separate account or separate certificate of deposit with the names of the depositor or transferor, cemetery association or licensed funeral establishment, and the person making payment on behalf of the individual for whose benefit payment is made.
    1. The funds may be released or transferred by the bank, credit union, savings and loan association, or trust company to the depositor upon the death of the individual for whose benefit the funds were paid. A certified copy of the certificate of death must be furnished to the bank, credit union, savings and loan association, or trust company as prima facie evidence of death. The funds may be released or transferred by the bank, credit union, savings and loan association, or trust company to the person making the payment, before the death of the individual for whose benefit the funds are paid, upon a five-day written notice by registered or certified mail made by the bank, credit union, savings and loan association, or trust company to the depositor or transferor at the request of the person making the payment.
    2. A purchaser of a pre-need funeral service contract may make a certain amount of the pre-need funds irrevocable by designating an irrevocable amount to be used to pay for the funeral of the beneficiary. The irrevocable itemized funeral service contract to pay for a funeral is recognized as an allowable asset exclusion used for determining eligibility for medical assistance under section 50-24.1-02.3 at the time the contract is entered. A purchaser of an irrevocable itemized funeral contract has forty-five days from entering the contract to cancel the irrevocable part of the contract by giving notice to the cemetery association or licensed funeral establishment with which the contract was entered. Any pre-need funeral service contract held by a cemetery association or a licensed funeral establishment must be fully transferable to another cemetery association or funeral establishment licensed under chapter 43-10 or a substantially similar law of another jurisdiction which agrees to accept the obligations.
  2. A bank, credit union, savings and loan association, or trust company receiving such a deposit or transfer shall keep a complete record of the deposit or transfer, showing the name of the depositor or transferor, name of the person making payment, name of the individual for whose benefit payment is made, and any other pertinent information.
  3. Any personal property to be used in funeral services or cemetery merchandise which is sold to a purchaser on the basis it will be identified and marked as belonging to such purchaser, and stored or warehoused for the purchaser, must be stored or warehoused at some location within this state.

Source: S.L. 2001, ch. 368, § 3; 2001, ch. 370, § 2; 2013, ch. 377, § 1; 2019, ch. 409, § 1, effective August 1, 2019; 2021, ch. 308, § 2, effective April 16, 2021.

43-10.1-04. Bond.

Each owner or operator of a licensed funeral establishment or cemetery association, who files an annual report, must file with the commissioner a corporate surety bond approved by the commissioner in an amount deemed adequate by the commissioner running to the state of North Dakota. The bond must be in such form and style as the commissioner may require for the use and benefit of the purchasers or persons making payments upon pre-need funeral service contracts or their estates, or the beneficiary of the pre-need funeral service contract or the beneficiary’s estate for damages suffered by them because of the failure to comply with all provisions of the pre-need funeral service contract or the provisions of this chapter.

Source: S.L. 1967, ch. 348, § 4; 1973, ch. 348, § 4; 1975, ch. 401, § 2; 1989, ch. 306, § 3; 2001, ch. 368, § 4.

43-10.1-05. Verification by commissioner.

Within ninety days after the filing of a report as required by section 43-10.1-03, the commissioner shall verify the report by mailing to the banks, credit unions, savings and loan associations, or trust companies where the report indicates the consideration has been deposited, a questionnaire which the bank, credit union, savings and loan association, or trust company is requested to complete and return, verifying the facts stated in the report in regard to the contract or the deposit of funds. The commissioner shall verify the facts on additional contracts reported if the commissioner has reason to believe additional verification to be necessary.

Source: S.L. 1967, ch. 348, § 5; 1975, ch. 401, § 3; 1989, ch. 306, § 4; 2001, ch. 368, § 5.

43-10.1-06. Special audits — Violations of law. [Repealed]

Repealed by S.L. 1979, ch. 463, § 7.

43-10.1-06.1. Fraudulent practices.

It is a fraudulent practice and it is unlawful:

  1. For any person knowingly to subscribe to, or make or cause to be made, any material false statement or representation in any report or other document or statement required to be filed under any provision of this chapter, or to omit to state any material statement or fact in any such document or statement which is necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.
  2. For any person, in connection with the sale of any pre-need funeral service or personal property, directly or indirectly, to employ any device, scheme, or artifice to defraud.
  3. For any person, in connection with the sale of any pre-need funeral service or personal property, directly or indirectly, to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.
  4. No action may be brought under this section by the commissioner after six years from the date of the violation.

Source: S.L. 1979, ch. 463, § 2; 1995, ch. 100, § 8.

43-10.1-06.2. Orders and injunctions.

Whenever it appears to the commissioner either upon complaint or otherwise, that any person has engaged in, is engaging in, or is about to engage in any act or practice or transaction which is prohibited by this chapter or by any order of the commissioner issued pursuant to any section of this chapter or which is declared to be illegal in this chapter, the commissioner may:

  1. Issue any order, including cease and desist, stop, and suspension orders, which the commissioner deems necessary or appropriate in the public interest or for the protection of purchasers. In addition to any other remedy authorized by this chapter, the commissioner may impose by order and collect a civil penalty in an amount not to exceed ten thousand dollars for each violation against any person found in an administrative action to have violated this chapter. The commissioner may bring an action in district court to recover penalties under this section. Any person aggrieved by an order issued under this subsection may request a hearing before the commissioner if the request is made, in writing, within ten days after receipt of the order. The hearing and any appeal therefrom must be held in accordance with chapter 28-32.
  2. Apply to the district court of any county in this state for an injunction restraining such person and the person’s agents, employees, partners, officers, and directors from continuing such act, practice, or transaction of engaging therein or doing any acts in furtherance thereof, and for such other and further relief as the facts may warrant. In any proceeding for an injunction, the commissioner may apply for and on due showing be entitled to have issued the court’s subpoena requiring the appearance forthwith of any defendant and the defendant’s agents, employees, partners, officers, or directors, and the production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction. Upon proof of any of the offenses described in this section, the court may grant such injunction as the facts may warrant. The court may not require the commissioner to post a bond.

Source: S.L. 1979, ch. 463, § 3; 1995, ch. 100, § 9.

43-10.1-06.3. Investigations and subpoenas.

  1. The commissioner in the commissioner’s discretion:
    1. May make such public or private investigation within or outside this state as the commissioner deems necessary to determine whether any person has violated or is about to violate any provision of this chapter or any rule or order hereunder, or to aid in the enforcement of this chapter or in the prescribing of rules and forms hereunder.
    2. May require or permit any person to file a statement in writing, under oath or otherwise as the commissioner determines, as to all the facts and circumstances concerning the matter to be investigated.
    3. May publish information concerning any violation of this chapter or any rule or order hereunder.
  2. For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by the commissioner may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the commissioner deems relevant or material to the inquiry.
  3. In case of contumacy by, or refusal to obey a subpoena issued to, any person, the district court, upon application by the commissioner, may issue to the person an order requiring that person to appear before the commissioner, or the officer designated by the commissioner, there to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question. Failure to obey the order of the court may be punished by the court as a contempt of court.
  4. No person is excused from attending and testifying or from producing any document or record before the commissioner, or in obedience to the subpoena of the commissioner or any officer designated by the commissioner, or in any proceeding instituted by the commissioner, on the ground that the testimony or evidence, documentary or otherwise, required of the person may tend to incriminate that person or subject that person to a penalty or forfeiture; but no individual may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the individual is compelled, after claiming the privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that the individual testifying is not exempt from prosecution and punishment for perjury or contempt committed in testifying.

Source: S.L. 1979, ch. 463, § 4.

43-10.1-07. Prosecution for violations of law.

The commissioner may refer any evidence available concerning a violation of this chapter or of any rule or order issued under this chapter to the appropriate criminal prosecutor who, with or without the reference, may institute criminal proceedings under this chapter. The criminal prosecutor may apply for and on due showing be issued the court’s subpoena requiring the appearance forthwith of any defendant and the defendant’s agents, employees, partners, officers, and directors, and the production of any documents, books, and records necessary for the prosecution of the criminal proceedings.

Source: S.L. 1967, ch. 348, § 7; 1973, ch. 348, § 6; 1975, ch. 401, § 5; 1979, ch. 463, § 5; 1995, ch. 100, § 10.

43-10.1-07.1. Administration.

The commissioner has the power to promulgate rules and regulations having the force and effect of law, reasonably necessary to carry out the provisions of this chapter, in accordance with chapter 28-32. Any hearing held and any orders issued pursuant to this chapter must be in accordance with chapter 28-32. In addition to those powers set forth in chapter 28-32, the commissioner has additional powers as set forth in this chapter.

Source: S.L. 1979, ch. 463, § 1; 2001, ch. 368, § 6.

43-10.1-07.2. Statute of limitations.

No action may be brought under this chapter by the commissioner after five years from the date that the commissioner knew or reasonably should have known about the facts that are the basis for the alleged violation. This section does not apply to section 43-10.1-06.1.

Source: S.L. 1995, ch. 100, § 12.

43-10.1-08. Penalties.

  1. Any person who willfully violates any provision of this chapter or any rule or order of the commissioner under this chapter is guilty of a class B felony.
  2. An information must be filed or an indictment must be found under this chapter within five years after the commissioner or criminal prosecutor knew or reasonably should have known about the facts that are the basis for the prosecution.
  3. “Willfully” means the person was aware of the consequences of the person’s actions, and proof of evil motive or intent to violate the law or knowledge that the law was being violated is not required. Each act or omission is a separate offense, and a prosecution or conviction for an offense does not bar a prosecution or conviction for any other offense.

Source: S.L. 1967, ch. 348, § 9; 1975, ch. 401, § 6; 1979, ch. 463, § 6; 1995, ch. 100, § 11.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 43-11 Cosmetologists

43-11-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the state board of cosmetology.
  2. “Cosmetologist” means an individual licensed under this chapter to practice cosmetology.
  3. “Cosmetology” means any one or a combination of practices generally and usually performed by and known as the occupation of beauty culturists or cosmeticians or cosmetologists or hairdressers, or of any other individual holding out as practicing cosmetology by whatever designation and within the meaning under this chapter and in and upon whatever place or premises.
    1. The term includes:
      1. Hair care, including arranging, dressing, curling, waving, permanent waving, cleansing, cutting, shaving, trimming, singeing, bleaching, coloring, straightening, or similar work, upon the hair of any individual by any means or with hands or mechanical or electrical apparatus or appliances;
      2. Skin care;
      3. Manipulation and application of product to eyelashes and eyebrows, including extensions, design, treatment, tinting, and lightening;
      4. Hair extensions using chemical hair joint agents, such as synthetic tape, keratin bonds, or fusion bonds; and
      5. Manicuring.
    2. The term does not include natural hair braiding or threading.
  4. “Esthetician” means an individual licensed under this chapter to practice esthetics and skin care.
  5. “Esthetics” means manipulation and application of product to eyelashes and eyebrows, including extensions, design, treatment, tinting, and lightening and skin care.
  6. “Independent licensee” is a licensed individual who maintains a separate salon license and operates independently from the establishment owner in which the individual’s suite or chair is located.
  7. “Instructor” means an individual who is a licensed cosmetologist, esthetician, or manicurist who teaches cosmetology, esthetics, manicuring, or other practices within the scope of the individual’s license, in a duly registered school of cosmetology, and who has met the requirements of section 43-11-27 and has applied for and received an instructor’s license.
  8. “Invasive care” means any procedure that invades the live tissue of the dermis by any means, including cutting, puncturing, burning, insertion of instruments, and includes:
    1. Laser use; and
    2. Chemical peels using:
      1. Thirty percent or higher concentration of alpha hydroxy acid;
      2. Twenty percent or higher concentration of beta hydroxy acid;
      3. Two percent or higher concentration of resorcinol;
      4. Fifteen percent or higher concentration of trichloroacetic acid (TCA); or
      5. Fifteen percent or higher concentration of phenol.
  9. “Manicuring” means:
    1. Cleansing, cutting, shaping, or beautifying nails;
    2. Massaging from the elbow to the fingertips or knee to toes of any individual;
    3. Caring for and treating the cuticles and nails; and
    4. The application and removal of sculptured or otherwise artificial nails by hand or with mechanical or electrical apparatus or appliances.
  10. “Manicurist” means an individual licensed under this chapter to practice manicuring.
  11. “Master cosmetologist” means an individual who has met the requirements of section 43-11-26 and has applied for and received a master cosmetologist license.
  12. “Master esthetician” means an individual who has met the requirements of section 43-11-26 and has applied for and received a master esthetician license.
  13. “Master manicurist” means an individual who has met the requirements of section 43-11-26 and has applied for and received a master manicuring license.
  14. “Mechanical device” means a clip, comb, crochet hook, curler, curling iron, hairpin, roller, scissors, blunt-tipped needle, thread, and hair binder.
  15. “Natural hair braiding” means the service of twisting, wrapping, weaving, extending, locking, or braiding hair by hand or with a mechanical device. Natural hair braiding is commonly known as “African-style hair braiding” but is not limited to any particular cultural, ethnic, racial, or religious forms of hairstyles.
    1. The term includes:
      1. The use of natural or synthetic hair extensions, natural or synthetic hair and fibers, and decorative beads and other hair accessories;
      2. Minor trimming of natural hair or hair extensions incidental to twisting, wrapping, weaving, extending, locking, or braiding hair;
      3. The making of wigs from natural hair, natural fibers, synthetic fibers, and hair extensions; and
      4. The use of topical agents, such as conditioners, gels, moisturizers, oils, pomades, and shampoos, in conjunction with performing services under paragraph 1 or 2.
    2. The term does not include:
      1. The application of dyes, reactive chemicals, or other preparations to alter the color of the hair or to straighten, curl, or alter the structure of the hair; or
      2. The use of chemical hair joining agents, such as synthetic tape, keratin bonds, or fusion bonds.
  16. “Noninvasive care” includes treatments confined to the nonliving cells of the stratum corneum of the epidermis. Noninvasive care must be in a superficial mode and not for the treatment of medical disorders, and living cells may not be altered, cut, or damaged.
  17. “Salon” means an establishment in a fixed location, not used as sleeping or living quarters, licensed under this chapter where cosmetology services are provided.
  18. “School of cosmetology” means an establishment operated for the purpose of teaching cosmetology.
  19. “Skin care” means the use of cosmetic preparations, antiseptics, tonics, lotions, creams, or otherwise, massaging, cleansing, stimulating, manipulating, performing noninvasive hair removal, including waxing and tweezing; beautifying, or similar noninvasive care and work on the body of any individual. The term does not include invasive care or threading.
  20. “Student” means any individual who is engaged in the learning or acquiring of any or all the practices of cosmetology and while so learning, performs or assists in any of the practices of cosmetology in any school registered or licensed and under the immediate supervision of an instructor licensed as such under this chapter.
  21. “Student instructor” means a cosmetologist, esthetician, or manicurist who is receiving instruction in teacher’s training within the scope of the individual’s license in a duly registered school of cosmetology.
  22. “Threading” means the method of removing hair from the eyebrows, upper lip, or other body part by using cotton thread to pull hair from follicles.
    1. The term may include the use of an over-the-counter astringent, gel, and powder, tweezers, and scissors, incidental to the removal of hair by threading.
    2. The term does not include the use of chemicals, heat, or any type of wax.
  23. “Tuition” means the total cost of an individual’s cosmetology studies, and does not include books or demonstration kits.

Source: S.L. 1927, ch. 157, §§ 2, 3, 29; 1939, ch. 150, § 1; R.C. 1943, § 43-1101; S.L. 1947, ch. 297, § 1; 1957 Supp., § 43-1101; S.L. 1973, ch. 120, § 43; 1985, ch. 477, § 2; 1989, ch. 515, § 1; 1995, ch. 401, § 1; 1997, ch. 368, § 1; 2001, ch. 371, § 1; 2003, ch. 360, § 1; 2011, ch. 308, § 1; 2015, ch. 293, § 1, effective July 1, 2015; 2019, ch. 347, § 1, effective August 1, 2019; 2021, ch. 309, § 1, effective July 1, 2021.

Cross-References.

Barbers, see N.D.C.C. ch. 43-04.

Collateral References.

“Grandfather clause”, construction, 4 A.L.R.2d 667.

Regulation of beauty treatment by massage, 17 A.L.R.2d 1183.

Validity, construction, and effect of statute or ordinance regulating beauty shops, 56 A.L.R.2d 879.

Liability of cosmetology school for injury to patron, 81 A.L.R.4th 444.

43-11-02. Exemptions from provisions of chapter.

This chapter does not apply to:

  1. Services provided by individuals practicing cosmetology upon members of the individual’s immediate families.
  2. Services by nurses, undertakers, and morticians lawfully engaged in the performance of the usual and ordinary duties of their vocation.
  3. Educational activities conducted in connection with any regularly scheduled meeting or any educational activities of any bona fide association of licensed cosmetologists, estheticians, or manicurists from which the general public is excluded. For purposes of this subsection, a “bona fide association of cosmetologists” means any organization whose constitution, bylaws, or membership rules establish within said organization a class of membership consisting of licensed cosmetologists.
  4. Services provided by retailers or their sales personnel trained in the demonstration of cosmetics application if the cosmetics are applied only with disposable applicators that are discarded after each customer demonstration. The board may adopt rules to ensure sanitary conditions for services provided under this exemption.
  5. Services provided in a licensed hospital or a nursing home by a an individual practicing cosmetology on a volunteer basis without compensation or by a nurse’s assistant.
  6. Skin care provided by a licensed cosmetologist or esthetician outside of a licensed salon if the services are being provided under the supervision, control, and responsibility of a physician or physician assistant practicing within the scope of the physician’s or physician assistant’s license under chapter 43-17, or nurse practicing within the scope of the nurse’s license under chapter 43-12.1.

Source: S.L. 1927, ch. 157, § 25; R.C. 1943, § 43-1102; S.L. 1963, ch. 306, § 1; 1971, ch. 432, § 1; 1985, ch. 477, § 3; 1989, ch. 516, § 1; 1995, ch. 402, § 1; 1997, ch. 368, § 2; 2011, ch. 308, § 2; 2015, ch. 293, § 2, effective July 1, 2015; 2021, ch. 309, § 2, effective July 1, 2021.

Cross-References.

Barbers, see N.D.C.C. ch. 43-04.

43-11-03. State board of cosmetology — Appointment — Term — Removal.

The state board of cosmetology consists of five members appointed by the governor for three years each, with their terms of office so arranged that no more than two terms expire on June thirtieth of each year. Each member shall qualify by taking the oath required of civil officers and shall hold office until a successor is appointed and qualified. The governor may remove from office a member for misconduct, malfeasance, neglect of duty in office, crime in office, gross incompetency, or habitual drunkenness. A vacancy on the board must be filled by appointment by the governor for the unexpired term.

Source: S.L. 1927, ch. 157, § 5; R.C. 1943, § 43-1103; S.L. 1985, ch. 477, § 4; 1989, ch. 517, § 1; 2011, ch. 308, § 3.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-11-04. Members of board — Qualifications.

Each member of the board must be a citizen of this state. Three of the members of the board must each be a licensed cosmetologist who has had at least three years’ practical experience in the occupation. One member of the board must have professional experience as a secondary teacher or as a postsecondary educator. One member of the board must be a licensed health care provider.

Source: S.L. 1927, ch. 157, § 5; R.C. 1943, § 43-1104; S.L. 1959, ch. 321, § 1; 1985, ch. 477, § 5; 2003, ch. 360, § 2; 2011, ch. 308, § 4; 2015, ch. 293, § 3, effective July 1, 2015.

43-11-05. Officers of board — Powers — Rulemaking.

The members of the board annually shall elect a president and a secretary from the members of the board. The president and the secretary may administer oaths. The board may adopt rules necessary to implement this chapter.

Source: S.L. 1927, ch. 157, § 6; R.C. 1943, § 43-1105; S.L. 1985, ch. 477, § 6.

43-11-06. Compensation of members of board — How paid.

Each member of the board is entitled to receive compensation in the amount provided for members of the legislative management under section 54-35-10 for each day employed in the actual discharge of official duties, as determined by the board. Expenses incurred by a board member in the performance of an official function are payable by the board pursuant to sections 44-08-04 and 54-06-09. The compensation and expenses of all members of the board must be paid from the license fees and other sources of income of the board.

Source: S.L. 1927, ch. 157, § 7; R.C. 1943, § 43-1106; S.L. 1947, ch. 297, § 2; 1957 Supp., § 43-1106; S.L. 1959, ch. 321, § 2; S.L. 1969, ch. 393, § 1; 1975, ch. 402, § 1; 1985, ch. 477, § 7; 2003, ch. 360, § 3; 2011, ch. 308, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expenses of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-11-07. Bond of secretary.

Before entering upon the discharge of duties, the secretary of the board must be bonded for the faithful discharge of duties in the amount of five thousand dollars, and the premium for the bond must be paid out of the funds received by the board. The bond and oath of office must be deposited with the secretary of state.

Source: S.L. 1927, ch. 157, § 8; R.C. 1943, § 43-1107; S.L. 1975, ch. 258, § 20; 1985, ch. 477, § 8.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14, and N.D.C.C. ch. 26.1-21.

43-11-08. Meetings of the board.

The board shall meet at least twice each year at times determined by the board. The board shall publish annually the time and place of its regularly scheduled meetings. A majority of the members constitutes a quorum.

Source: S.L. 1927, ch. 157, § 9; R.C. 1943, § 43-1108; S.L. 1985, ch. 477, § 9; 1997, ch. 368, § 3.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-11-09. Fees — Deposited with state treasurer — Expenses — How paid. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

See section 54-44-12 for present provision on deposit and disbursement of funds of occupational and professional boards.

43-11-10. Records of board — Fees — Expenses — How paid.

The secretary of the board shall keep a record of the board’s proceedings and a register of applicants for licensure showing the name of the applicant, the name and location of the applicant’s place of occupation or business, and whether the applicant was granted or refused a license. The books and records of the board are prima facie evidence of matters therein contained and constitute public records. All fees and payments required to be paid by applicants for examinations or licenses must be deposited with the secretary of the board. The secretary shall pay all expenses incurred in the operation of maintaining an office for the purpose of carrying out this chapter from fees and other income.

Source: S.L. 1927, ch. 157, § 10; R.C. 1943, § 43-1110; S.L. 1985, ch. 477, § 10.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-11-11. Rules of cleaning and disinfecting — Practice outside salon. [Effective through August 31, 2022]

The board with the approval of the state department of health shall adopt rules of cleaning and disinfecting necessary to prevent the creating and spreading of infectious and contagious diseases. A cosmetologist, esthetician, or manicurist may practice outside of a licensed salon under rules adopted by the board. The board shall inspect salons to assure compliance with the rules of cleaning and disinfecting.

Source: S.L. 1927, ch. 157, § 20; R.C. 1943, § 43-1111; S.L. 1979, ch. 464, § 1; 1985, ch. 477, § 11; 1995, ch. 243, § 2; 1997, ch. 368, § 4; 2015, ch. 293, § 4, effective July 1, 2015; 2021, ch. 309, § 3, effective July 1, 2021.

Note.

Section 43-11-11 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 3 of Chapter 309, Session Laws 2021, Senate Bill 2092; and Section 358 of Chapter 352, Session Laws 2021, House Bill 1247.

43-11-11. Rules of cleaning and disinfecting — Practice outside salon. [Effective September 1, 2022]

The board with the approval of the department of health and human services shall adopt rules of cleaning and disinfecting necessary to prevent the creating and spreading of infectious and contagious diseases. A cosmetologist, esthetician, or manicurist may practice outside of a licensed salon under rules adopted by the board. The board shall inspect salons to assure compliance with the rules of cleaning and disinfecting.

Source: S.L. 1927, ch. 157, § 20; R.C. 1943, § 43-1111; S.L. 1979, ch. 464, § 1; 1985, ch. 477, § 11; 1995, ch. 243, § 2; 1997, ch. 368, § 4; 2015, ch. 293, § 4, effective July 1, 2015; 2021, ch. 309, § 3, effective July 1, 2021; 2021, ch. 352, § 358, effective September 1, 2022.

43-11-11.1. Use of brush rollers authorized.

An individual licensed under this chapter may use brush rollers in the performance of cosmetology and hairdressing or hairsetting services if the rollers are cleaned and disinfected after each use in conformity with rules adopted by the board.

Source: S.L. 1989, ch. 518, § 1; 2021, ch. 309, § 4, effective July 1, 2021.

43-11-12. Employees of board.

The board may employ support staff and other individuals knowledgeable in cosmetology for conducting examinations, inspections, and investigations of licensees regulated under this chapter. Any individual employed by the board is entitled to receive expenses in the amounts payable under sections 44-08-04 and 54-06-09.

Source: S.L. 1927, ch. 157, § 16; R.C. 1943, § 43-1112; S.L. 1979, ch. 464, § 2; 1985, ch. 477, § 12; 1997, ch. 368, § 5; 2021, ch. 309, § 5, effective July 1, 2021.

Cross-References.

Compensation of board members, see N.D.C.C. § 43-11-06.

43-11-13. License required.

An individual may not:

  1. Advertise, engage in, or attempt to engage in the occupation of cosmetology, nor conduct a cosmetology salon or school of cosmetology unless having first obtained a license.
  2. Employ an unlicensed individual to perform cosmetology unless otherwise provided under this chapter.

Source: S.L. 1927, ch. 157, § 1; R.C. 1943, § 43-1113; S.L. 1985, ch. 477, § 13; 2015, ch. 293, § 5, effective July 1, 2015; 2021, ch. 309, § 6, effective July 1, 2021.

43-11-13.1. License — Master esthetician and master manicurist. [Repealed]

Source: S.L. 1995, ch. 401, § 4; repealed by 2021, ch. 309, § 31, effective July 1, 2021.

43-11-13.2. Homebound license. [Repealed]

Source: S.L. 1995, ch. 401, § 4; repealed by 2021, ch. 309, § 31, effective July 1, 2021.

43-11-14. Licenses — Board to issue — Form — Displayed.

The board may issue all licenses provided for under this chapter. Each license issued must be:

  1. Signed by the secretary of the board;
  2. Attested by the seal of the board; and
  3. Displayed in clear view to the public where services are being provided .

Source: S.L. 1927, ch. 157, § 15; 1939, ch. 150, § 4; R.C. 1943, § 43-1114; S.L. 1985, ch. 477, § 14; 2021, ch. 309, § 7, effective July 1, 2021.

43-11-15. Salon ownership and operation.

  1. A salon may be owned by any person authorized to do business in this state.
    1. A cosmetology salon must be supervised by a master cosmetologist.
    2. A salon providing only skin care or esthetics must be supervised by a master cosmetologist or master esthetician.
    3. A manicuring salon must be supervised by a master cosmetologist or master manicurist.
  2. The board shall determine the qualifications by rule for licensure and license fees for a salon license.

Source: S.L. 1927, ch. 157, § 3; 1939, ch. 150, § 1, subs. e; R.C. 1943, § 43-1115; S.L. 1985, ch. 477, § 15; 2015, ch. 293, § 6, effective July 1, 2015; 2021, ch. 309, § 8, effective July 1, 2021.

43-11-16. Schools of cosmetology — Qualifications for licensure.

  1. A license must be granted to a school of cosmetology upon an application to the board and the payment of the license fee if the school:
    1. Is operated and maintained in premises separate from any cosmetology salon;
    2. Requires a minimum of one thousand five hundred hours of training and instruction in cosmetology, six hundred hours of training and instruction in esthetics, or three hundred fifty hours of training and instruction in manicuring, not to exceed eight hours per day;
    3. Employs at least two full-time licensed instructors and maintains a maximum student-to-instructor ratio of twenty-four-to-one based on current enrollment, except a school that provides training and instruction limited to esthetics or manicuring shall maintain a maximum student-to-instructor ratio of twelve-to-one based on current enrollment;
    4. Possesses apparatus and equipment sufficient for the proper and full teaching of all subjects of its curriculum;
    5. Maintains a record of the attendance and performance of each student;
    6. Maintains regular class and instruction hours to include practical demonstrations and theoretical studies supplemented by audiovisual aids, and studies in sanitation, sterilization, and other safety measures and the use of antiseptics, cosmetics, and electrical appliances consistent with the practical and theoretical requirements as applicable to cosmetology;
    7. Agrees not to:
      1. Permit any student to practice on any individual who is not an instructor or registered student of the school until the student has completed at least twenty percent of the total hours of instruction required under this chapter and only if the practice is under the immediate direction and supervision of a licensed instructor; or
      2. Compensate any of the school’s basic students in any way; and
    8. At the time of application for licensure and upon the renewal of a license, furnishes to the board, and maintains in force at all times the license is in effect, a bond in the penal sum of ten thousand dollars. The bond must run in favor of the board, as agent of the state, and must be furnished by a surety company authorized to do business in this state. It must be conditioned upon the bonded school’s providing its registered students with the full course of instruction required under this chapter and must provide for a refund of a proportionate amount of each student’s tuition fee upon default.
  2. Any school that enrolls student instructors shall set up an adequate course of training with the approval of the board and may not have at any one time more than two student instructors for each licensed instructor actively engaged in the school.

Source: S.L. 1927, ch. 157, § 4, subs. b; 1937, ch. 137, § 1, subs. b; 1939, ch. 150, § 2, subs. b; R.C. 1943, § 43-1116; S.L. 1947, ch. 297, § 3; 1957 Supp., § 43-1116; S.L. 1963, ch. 306, § 2; 1969, ch. 393, § 2; 1973, ch. 349, § 1; 1975, ch. 402, § 3; 1979, ch. 464, § 3; 1981, ch. 435, § 7; 1985, ch. 477, § 16; 2001, ch. 371, § 2; 2003, ch. 360, § 4; 2011, ch. 308, § 6; 2021, ch. 309, § 9, effective July 1, 2021.

Cross-References.

Exemption of schools for hairdressers and cosmetologists from regulations governing postsecondary educational institutions, see N.D.C.C. § 15-20.4-02.

Collateral References.

Validity, construction and effect of statute or ordinance regulating beauty culture schools, 56 A.L.R.2d 879.

43-11-16.1. Internships and apprenticeship programs.

The board may establish internships with the schools of cosmetology and may establish apprenticeship programs. The board may adopt rules related to the licensure and discipline of interns and apprentices practicing in programs established under this section.

Source: S.L. 2021, ch. 309, § 10, effective July 1, 2021.

43-11-17. Licenses issued for schools of cosmetology and cosmetology salons — Fee for registration.

The board shall issue, after inspection and approval, a license for a school of cosmetology. The registration fee for a school must be determined by the board as set forth in section 43-11-28. The board shall issue, after inspection and approval, a salon license, the fee for which must be determined by the board as set forth in section 43-11-28.

Source: S.L. 1927, ch. 157, § 4, subs. a; 1937, ch. 137, § 1, subs. a; 1939, ch. 150, § 2, subs. a; R.C. 1943, § 43-1117; S.L. 1947, ch. 297, § 4; 1957 Supp., § 43-1117; S.L. 1959, ch. 321, § 3; 1975, ch. 403, § 1; 1979, ch. 464, § 4; 1985, ch. 477, § 17; 1997, ch. 368, § 6; 2021, ch. 309, § 11, effective July 1, 2021.

43-11-18. School advertising must disclose work done by students — Violation — Cancellation of license.

No person, firm, corporation, or limited liability company operating or conducting a school of cosmetology may advertise to perform any of the practices of cosmetology without disclosing that the practice offered is to be performed by students under the supervision of a licensed instructor. If any school violates this section, the board, after notice and hearing and a determination of the violation, shall cancel the license granted to the school.

Source: S.L. 1937, ch. 137, § 1, subs. e; 1939, ch. 150, § 2, subs. e; R.C. 1943, § 43-1118; S.L. 1985, ch. 477, § 18; 1993, ch. 54, § 106.

43-11-19. Students — Registration.

  1. A student must:
    1. Adhere to the laws and rules regarding the practice of cosmetology;
    2. Have educational qualifications equivalent to completion of four years of high school; and
    3. Have enrolled in a school of cosmetology and complied with the preliminary requirements thereof.
  2. The names and qualifications of all students must be certified to the board by each school of cosmetology. The certification must be accompanied by a processing fee for each student in an amount as may be determined by the board under section 43-11-28.

Source: S.L. 1927, ch. 157, § 12, subs. a; 1939, ch. 150, § 3, subs. a; R.C. 1943, § 43-1119; S.L. 1947, ch. 297, § 5; 1957 Supp., § 43-1119; S.L. 1963, ch. 306, § 3; 1979, ch. 464, § 5; 1985, ch. 477, § 19; 1987, ch. 514, § 1; 1997, ch. 368, § 7; 2021, ch. 309, § 12, effective July 1, 2021.

43-11-20. Student practice. [Repealed]

Source: S.L. 1927, ch. 157, § 3, subs. a; 1939, ch. 150, § 1, subs. a; R.C. 1943, § 43-1120; S.L. 1985, ch. 477, § 20; repealed by 2021, ch. 309, § 31, effective July 1, 2021.

43-11-20.1. Refund of student tuition fees upon cancellation of course.

Schools of cosmetology shall refund tuition and other charges paid by or on behalf of a student when written notice of cancellation is given by the student. Refunds must be made in accordance with the following schedule:

Tuition Hours Retained Enrolled By School 0.0% - 4.9% 20% 5% - 9.9% 30% 10% - 14.9% 40% 15% - 24.9% 45% 25% - 49.9% 70% Over 50% 100%

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Notice of this section and of sections 43-11-20.2 and 43-11-20.3 must be posted in clear view to the public where services are being provided in each school of cosmetology. The notice must be in a form and contain information as prescribed by the board. The board shall take action necessary to enforce this section and sections 43-11-20.2 and 43-11-20.3, including revocation of the license issued pursuant to section 43-11-17. This section does not prejudice the right of any student to commence a civil action against any school of cosmetology for breach of contract or fraud.

Source: S.L. 1971, ch. 433, § 1; 1979, ch. 464, § 6; 1985, ch. 477, § 21; 1997, ch. 368, § 8; 2021, ch. 309, § 13, effective July 1, 2021.

43-11-20.2. Negotiation of promissory instruments.

No school of cosmetology may negotiate any promissory instrument received as payment for tuition or other charges prior to the completion of one-half of the course of instruction offered by the school.

Source: S.L. 1971, ch. 433, § 2; 1985, ch. 477, § 22.

43-11-20.3. Cancellation of contract for instruction.

Any person has the unrestricted right to rescind, revoke, or cancel a contract for a course of instruction at any school of cosmetology after entering into the contract without incurring any tort or contract liability.

Source: S.L. 1971, ch. 433, § 3; 1985, ch. 477, § 23.

43-11-20.4. Exemption from postsecondary license requirement — Solicitor’s permit required.

Schools of cosmetology are exempt from the license requirement of chapter 15-20.4. All individuals who solicit business for a school of cosmetology or who sell any course of instruction shall secure a solicitor’s permit and bond in an amount and under conditions as established by the board.

Source: S.L. 1971, ch. 433, § 4; 1981, ch. 91, § 40; 1985, ch. 477, § 24; 2021, ch. 309, § 14, effective July 1, 2021.

43-11-21. Cosmetologist, esthetician, manicurist license — Examination required — Application — Examination — Fees.

Each individual who desires to secure a cosmetologist, esthetician, or manicurist license shall file with the board a written application under oath on a form supplied by the board. The application must be accompanied by all of the following:

  1. An examination fee as may be fixed by the board pursuant to section 43-11-28.
  2. Satisfactory proof that the applicant has completed the required training in a school of cosmetology.
  3. A fee for original licensure as required by section 43-11-28.

Source: S.L. 1927, ch. 157, §§ 11, 12, subs. b, 13; 1939, ch. 150, § 3, subs. b; R.C. 1943, § 43-1121; S.L. 1947, ch. 297, § 6; 1957 Supp., § 43-1121; S.L. 1959, ch. 321, § 4; 1963, ch. 306, § 4; 1979, ch. 464, § 7; 1985, ch. 477, § 25; 1995, ch. 401, § 2; 1997, ch. 368, § 9; 2011, ch. 308, § 7; 2017, ch. 304, § 1, effective August 1, 2017; 2021, ch. 309, § 15, effective July 1, 2021.

43-11-22. Board to determine qualifications of applicants — Delegation of power.

The qualifications of applicants for admission to examination for registration and for certification or licensure to practice under this chapter must be determined by the board. The board may delegate authority under this section to support staff.

Source: S.L. 1927, ch. 157, § 12, subs. d; 1939, ch. 150, § 3, subs. e; R.C. 1943, § 43-1122; S.L. 1985, ch. 477, § 26; 2021, ch. 309, § 16, effective July 1, 2021.

43-11-23. Examination.

The examination of applicants for license to practice under this chapter must be conducted under rules adopted by the board and must include both practical demonstrations and written or oral tests in reference to the practices for which a license is desired and in reference to related studies or subjects as the board may determine necessary for the proper and efficient performance of a practice. The board may require the practical portion of the examination be conducted by schools of cosmetology as part of graduation requirements. The examination may not be confined to any specific system or method and must be consistent with the practical and theoretical requirements of cosmetology.

Source: S.L. 1927, ch. 157, § 14; R.C. 1943, § 43-1123; S.L. 1985, ch. 477, § 27; 1997, ch. 368, § 10; 2021, ch. 309, § 17, effective July 1, 2021.

43-11-24. Cosmetologist, esthetician, or manicurist license — When issued — Failure to pass examination — Re-examination.

  1. A cosmetologist, esthetician, or manicurist license must be issued to any individual who has met all the following requirements:
    1. Complied with section 43-11-21.
    2. Passed to the satisfaction of the board the examination of applicants for a license to practice under this chapter.
  2. If the applicant fails to pass the examination, the examination fee may not be returned. If an applicant fails to pass an examination, the applicant may be examined again with the payment of a re-examination fee as set forth in section 43-11-28.

Source: S.L. 1927, ch. 157, §§ 15, 23; 1939, ch. 150, § 4; R.C. 1943, § 43-1124; S.L. 1979, ch. 464, § 8; 1985, ch. 477, § 28; 1997, ch. 368, § 11; 2003, ch. 360, § 5; 2011, ch. 308, § 8; 2021, ch. 309, § 18, effective July 1, 2021.

43-11-25. Licensure by reciprocity.

The board may grant licenses under this chapter upon the payment of a fee for original licensure and the reciprocity fee if the following requirements are met:

  1. The applicant has:
    1. Provided satisfactory proof of a license in good standing with the District of Columbia, or any other state, territory, foreign country, or province where the requirements are equally substantial to those in force in this state at the time the application for the license is filed; or
    2. Provided satisfactory proof:
      1. The applicant is licensed in good standing in any other state, territory, or jurisdiction of the United States to practice cosmetology;
      2. The applicant worked in the licensed profession for at least three of the past five years; and
      3. A license granted to the applicant in any other state, territory, or jurisdiction of the United States is not subject to suspension or revocation, or otherwise restricted in any manner for disciplinary purposes.
  2. The applicant passes to the satisfaction of the board an examination on North Dakota laws, rules, and regulations.

Source: S.L. 1927, ch. 157, § 17; R.C. 1943, § 43-1125; S.L. 1973, ch. 349, § 2; 1979, ch. 464, § 9; 1985, ch. 477, § 29; 2011, ch. 308, § 9; 2015, ch. 293, § 7, effective July 1, 2015; 2017, ch. 304, § 2, effective August 1, 2017; 2021, ch. 309, § 19, effective July 1, 2021.

43-11-25.1. International applicants.

  1. An applicant with training and credentials outside of the United States shall submit, at the applicant’s own expense, qualifications, credentials, and work experience for review to a credentialing agency approved by the board.
  2. Failure to have a review completed by the above credentialing agency may result in the board denying the application. The board may accept or refuse any recommendations made by the credentialing agency.

Source: S.L. 2021, ch. 309, § 20, effective July 1, 2021.

43-11-26. Master cosmetologist, master esthetician, and master manicurist — License — Qualifications.

An individual may obtain a master cosmetologist, master esthetician, or master manicurist license upon meeting all the following requirements:

  1. Furnishing to the board evidence of having practiced as a cosmetologist, esthetician, or manicurist for at least one thousand hours. Cosmetologists may obtain hours under the direction and control of a master cosmetologist. Estheticians may obtain hours under the direction and control of a master cosmetologist or master esthetician. Manicurists may obtain hours under the direction and control of a master cosmetologist or master manicurist. Cosmetologists and estheticians may obtain a master license under the direction, control, and responsibility of a physician or physician assistant practicing within the scope of licensure under chapter 43-17 or a nurse practicing within the scope of the nurse’s license under chapter 43-12.1.
  2. Paying an original licensure fee as set forth in section 43-11-28.
  3. Complying with the other requirements under this chapter applicable to a master license.

Source: S.L. 1939, ch. 150, § 3, subs. d; R.C. 1943, § 43-1126; S.L. 1947, ch. 297, § 7; 1957 Supp., § 43-1126; S.L. 1973, ch. 349, § 3; 1979, ch. 464, § 10; 1985, ch. 477, § 30; 1995, ch. 401, § 3; 1997, ch. 368, § 12; 2011, ch. 308, § 10; 2015, ch. 293, § 8, effective July 1, 2015; 2021, ch. 309, § 21, effective July 1, 2021.

43-11-27. Instructor’s license — Student instructor’s license — Registration — Qualifications.

  1. No individual may be licensed as an instructor of cosmetology unless the individual passes a theory and a practical examination required by the board after paying the examination fee set forth in section 43-11-28 and provides evidence of having a general education equivalent to the completion of four years in high school. An applicant:
    1. Shall possess a current North Dakota license as a cosmetologist, esthetician, or manicurist and must have at least nine hundred sixty hours instructor’s training in cosmetology in a school of cosmetology;
    2. Shall possess a current North Dakota license as a cosmetologist, esthetician, or manicurist and must have been actively engaged in the practice under the scope of the applicant’s license for at least one year before application for an instructor’s license, supplemented by not less than four hundred eighty hours instructor’s training in a school of cosmetology or course of training approved by the board; or
    3. Shall possess a current North Dakota license as a cosmetologist, esthetician, or manicurist and shall have been actively engaged in the practice of cosmetology for at least three years prior to application for an instructor’s license supplemented by not less than one hundred sixty hours instructor’s training in a school of cosmetology or course of training approved by the board. No instructor or student instructor may be permitted to practice cosmetology on a patron other than that part of practical work which pertains directly to the teaching of practical operations to students.
  2. Student instructors must be registered with the board. The board must record the name, age, and qualifications of the student instructor in a register. A student instructor shall possess, at the time of enrollment, a general education equivalent to the completion of four years in high school and hold a license as a cosmetologist. Upon completion of the course prescribed for student instructors, the student instructor shall make application on a form provided by the board and pay a fee as provided in section 43-11-28. The board then shall cause the applicant to be examined for an instructor’s license. The examination must be given by a special examining committee comprised of the board, assisted by one person designated by the board. Upon successfully passing the examination, the board shall issue an instructor’s license to the applicant.
  3. No individual is entitled to renew an instructor’s license unless the instructor has furnished to the board evidence of completion of the continuing education established by the board by rule.
  4. Licensed estheticians and manicurists may only provide instruction within the scope of practice of the respective licenses determined under this chapter.

Source: S.L. 1927, ch. 157, § 12, subs. c; 1939, ch. 150, § 3, subs. c; R.C. 1943, § 43-1127; S.L. 1947, ch. 297, § 8; 1957 Supp., § 43-1127; S.L. 1963, ch. 306, § 5; 1973, ch. 120, § 44; 1973, ch. 349, §§ 4, 5; 1979, ch. 464, § 11; 1985, ch. 477, § 31; 1987, ch. 514, § 2; 1997, ch. 368, § 13; 2001, ch. 371, § 3; 2003, ch. 360, § 6; 2015, ch. 293, § 9, effective July 1, 2015; 2021, ch. 309, § 22, effective July 1, 2021.

43-11-27.1. Esthetician and manicurist licenses — Qualifications — Fees.

The board may issue licenses for estheticians and manicurists. The board shall determine the qualifications for licensure and license fees for estheticians and manicurists.

Source: S.L. 1989, ch. 515, § 2; 2021, ch. 309, § 23, effective July 1, 2021.

43-11-28. Fees.

  1. Fees to be paid by applicants for original registrations, original licenses, renewals, licenses issued upon reciprocity, and examinations as required under this chapter may not exceed the following amounts:
    1. Original registrations, licenses, and annual renewals: MAXIMUM FEE: (1) Salons, original registration $80.00 per year (2) Salons, renewal $30.00 per year (3) School of cosmetology, original registration $505.00 per year (4) School of cosmetology, annual renewal $205.00 per year (5) Cosmetologist, original license $15.00 per year (6) Cosmetologist, annual renewal $15.00 per year (7) Master cosmetologist, original license $25.00 per year (8) Master cosmetologist, annual renewal $20.00 per year (9) Instructor, original license $35.00 per year (10) Instructor, renewal $20.00 per year (11) Reciprocity license fee $105.00 per year (12) Registration fee for student $15.00 per year (13) Duplicate license $10.00 per year (14) Certification fee $20.00 per year b. Late fees: (1) Late renewal within one year $50.00 (2) Late renewal after one year but before five years $150.00 c. Examinations: (1) Cosmetology practical examination $25.00 (2) Instructors practical examination $55.00 (3) Written examination fees are set and collected by the administrator of the examination and payment is the responsibility of the applicant.
  2. Fees are not prorated or returnable.
  3. The board shall sponsor an educational program for licenseholders to carry out the purposes of protecting the public health and safety and maintaining capable and skilled cosmetologists, estheticians, manicurists, and instructors. The board shall use such portion of the renewal fees as the board may determine for the purpose of providing the educational program.

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Source: S.L. 1927, ch. 157, §§ 26, 27; 1939, ch. 150, §§ 5, 6; R.C. 1943, § 43-1128; S.L. 1979, ch. 464, § 12; 1985, ch. 477, § 32; 1995, ch. 401, § 5; 1997, ch. 368, § 14; 2003, ch. 360, § 7; 2011, ch. 308, § 11; 2015, ch. 293, § 10, effective July 1, 2015; 2021, ch. 309, § 24, effective July 1, 2021.

43-11-29. License renewal — Failure to renew.

  1. A license issued by the board expires on December thirty-first. If the application for renewal is not received on or before the expiration date, the license expires.
  2. The board may renew a license if:
    1. An application for renewal is submitted as provided by the board;
    2. The renewal fee is paid; and
    3. Grounds for denial do not exist under section 43-11-31.
  3. The holder of an expired license, within one year from and after the date of the license’s expiration, may obtain a reinstatement of the license upon:
    1. Payment of the required late fee; and
    2. Payment of the current renewal fee.
  4. The holder of an expired license, one year after the date of expiration but before five years, may obtain a reinstatement of the license upon:
    1. Payment of the required late fee; and
    2. Furnishing to the board satisfactory proof of passing the North Dakota law, rules, and regulations examination.
  5. The board may not reinstate a license if more than five years has lapsed since the license expired. If a license has not been renewed within five years, the individual may reapply for licensure under the requirements of initial licensure as set forth under this chapter.

Source: S.L. 1927, ch. 157, § 26; 1939, ch. 150, § 5; R.C. 1943, § 43-1129; S.L. 1985, ch. 477, § 33; 2021, ch. 309, § 25, effective July 1, 2021.

43-11-30. Revocation or suspension of license.

The board may place on probation, revoke, or suspend a license upon proof of a violation under this chapter or a rule adopted by the board.

Source: S.L. 1927, ch. 157, § 19, subs. 1; 1943, ch. 144, § 1, subs. 1; R.C. 1943, § 43-1130; S.L. 1979, ch. 464, § 13; 1985, ch. 477, § 34; 2021, ch. 309, § 26, effective July 1, 2021.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

43-11-31. License — Refusal to grant — Grounds.

The board may deny an application or discipline a licensee on any of the following grounds:

  1. Fraud in passing the examination.
  2. Conviction of an offense determined by the board to have a direct bearing upon an individual’s ability to serve the public in a profession licensed by the board, or, following conviction of any offense, the board determines the individual is not sufficiently rehabilitated under section 12.1-33-02.1.
  3. Grossly unprofessional or dishonest conduct.
  4. Addiction to the use of intoxicating liquor or drugs to such an extent as to render the individual unfit to practice.
  5. Advertising by means of knowingly false or deceptive statements.
  6. Failure to display the license as provided under this chapter.
  7. Violation of the provisions under this chapter or the rules adopted by the board.
  8. Permitting an unlicensed individual to practice cosmetology, or teaching in a cosmetology salon or school of cosmetology.
  9. Advertising or providing services outside of the licensee’s scope of practice as defined under this chapter.

Source: S.L. 1927, ch. 157, § 19, subs. 2; 1943, ch. 144, § 1, subs. 2; R.C. 1943, § 43-1131; S.L. 1977, ch. 130, § 26; 1979, ch. 464, § 14; 1985, ch. 477, § 35; 2011, ch. 308, § 12; 2021, ch. 309, § 27, effective July 1, 2021.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-11-32. Hearings.

All hearings must be conducted pursuant to chapter 28-32. For purposes of a hearing, section 28-32-21 applies only to the licensee.

Source: S.L. 1927, ch. 157, § 21; R.C. 1943, § 43-1132; 1997, ch. 368, § 15; 2001, ch. 293, § 22.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-11-33. Board may subpoena witnesses — Fees — How paid.

The board may require the attendance of witnesses and the production of books, records, and papers at any hearing or with reference to any matter which the board has authority to investigate and, for that purpose, may issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers. The fees and mileage of witnesses must be the same as may be allowed in the court in criminal cases. Fees and mileage must be paid in the same manner as expenses of the board.

Source: S.L. 1927, ch. 157, § 19, subs. 3; 1943, ch. 144, § 1, subs. 3; R.C. 1943, § 43-1133; S.L. 1985, ch. 477, § 36; 1997, ch. 368, § 16; 2021, ch. 309, § 28, effective July 1, 2021.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Compensation of board members, see N.D.C.C. § 43-11-06.

Sheriff’s fee for service of subpoena, see N.D.C.C. § 11-15-07.

Subpoenas, see ch. 31-03; N.D.R.Civ.P. 45; N.D.R.Crim.P. 17.

Witnesses fee in criminal cases, see N.D.C.C. § 31-01-16.

43-11-34. Appeal from actions of the board.

An appeal may be taken from an action of the board under this chapter in refusing to grant or in suspending or revoking a license to the district court of the county of residence of the individual who has been refused a license or whose license has been suspended or revoked. The appeal must be taken in accordance with the provisions under chapter 28-32.

Source: S.L. 1927, ch. 157, § 22; R.C. 1943, § 43-1134; S.L. 1985, ch. 477, § 37; 1997, ch. 368, § 17; 2021, ch. 309, § 29, effective July 1, 2021.

43-11-35. Penalty.

Any individual who without a license as required under this chapter willfully practices any of the occupations, maintains a school, or acts or advertises in any capacity violates this chapter or rule adopted by the board, is guilty of a class B misdemeanor.

Source: S.L. 1927, ch. 157, § 28; 1937, ch. 137, § 2; R.C. 1943, § 43-1135; S.L. 1975, ch. 402, § 2; 1985, ch. 477, § 38; 1997, ch. 368, § 18; 2021, ch. 309, § 30, effective July 1, 2021.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-11-36. Minimum fees may be established — Conditions — How. [Repealed]

Repealed by S.L. 1981, ch. 435, § 26.

CHAPTER 43-12 Nurse Scholarships and Loans [Repealed]

[Repealed by S.L. 1963, ch. 307, § 18; S.L. 1971, ch. 434, § 20; S.L. 1977, ch. 400, § 4; S.L. 1987, ch. 515, § 4; S.L. 1989, ch. 410, § 4; S.L. 1995, ch. 403, § 17]

CHAPTER 43-12.1 Nurse Practices Act

43-12.1-01. Scope.

The practice of nursing is continually evolving and responding to changes within health care patterns and systems. There are overlapping functions within the practice of nursing and other providers of health care.

Source: S.L. 1977, ch. 400, § 1; 1991, ch. 453, § 1; 1995, ch. 403, § 2; 2003, ch. 361, § 1.

Notes to Decisions

In General.

Although the standards set forth in this chapter are broad, they are sufficient when considered with the safeguards, which prevent the board from engaging in arbitrary rule making. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

This section, and sections 43-12.1-02 and 43-12.1-10 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Collateral References.

Nurse’s liability for her own negligence or malpractice, 51 A.L.R.2d 970.

Revocation of nurse’s license to practice profession, 55 A.L.R.3d 1141.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

Admissibility of Expert Testimony by Nurses, 24 A.L.R.6th 549.

Collateral References.

Nurse’s liability for her own negligence or malpractice, 51 A.L.R.2d 970.

Revocation of nurse’s license to practice profession, 55 A.L.R.3d 1141.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

Admissibility of Expert Testimony by Nurses, 24 A.L.R.6th 549.

43-12.1-02. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Advanced practice registered nurse” means an individual who holds a current license to practice in this state as an advanced practice registered nurse within one of the roles of certified nurse practitioner, certified registered nurse anesthetist, certified nurse midwife, or certified clinical nurse specialist, and who functions in one of the population foci as approved by the board.
  2. “Board” means the North Dakota board of nursing.
  3. “Licensed practical nurse” means an individual who holds a current license to practice in this state as a licensed practical nurse and who practices dependently under the supervision of a registered nurse, specialty practice registered nurse, advanced practice registered nurse, or licensed practitioner.
  4. “Nurse” means an individual who is currently licensed as an advanced practice registered nurse, specialty practice registered nurse, registered nurse, or licensed practical nurse.
  5. “Nursing” means the performance of acts utilizing specialized knowledge, skills, and abilities for people in a variety of settings. The term includes the following acts, which may not be deemed to include acts of medical diagnosis or treatment or the practice of medicine as defined in chapter 43-17:
    1. The maintenance of health and prevention of illness.
    2. Assessing and diagnosing human responses to actual or potential health problems.
    3. Providing supportive and restorative care and nursing treatment, medication administration, health counseling and teaching, case finding and referral of individuals who are ill, injured, or experiencing changes in the normal health processes.
    4. Administration, teaching, supervision, delegation, and evaluation of health and nursing practices.
    5. Collaboration with other health care professionals in the implementation of the total health care regimen and execution of the health care regimen prescribed by a health care practitioner licensed under the laws of this state.
  6. “Prescriptive practices” means assessing the need for drugs, immunizing agents, or devices and writing a prescription to be filled by a licensed pharmacist.
  7. “Registered nurse” means an individual who holds a current license to practice in this state as a registered nurse and who practices nursing independently and interdependently through the application of the nursing process.
  8. “Specialty practice registered nurse” means an individual who holds a current license to practice in this state as a specialty practice registered nurse and who has current certification from a national certifying body in a specific area of nursing practice.
  9. “Unlicensed assistive person” means an assistant to the nurse, who regardless of title is authorized to perform nursing interventions delegated and supervised by a nurse.

Source: S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 1; 1989, ch. 519, § 1; 1991, ch. 453, § 2; 1991, ch. 454, § 1; 1995, ch. 403, § 3; 2001, ch. 372, § 1; 2003, ch. 361, § 2; 2011, ch. 195, § 2; 2013, ch. 321, § 1.

Notes to Decisions

In General.

This section, and N.D.C.C. §§ 43-12.1-01 and 43-12.1-10 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

43-12.1-03. License or registration required — Title — Abbreviation.

Any person who provides nursing care to a resident of this state must hold a current license or registration issued by the board. It is unlawful for a person to practice nursing, offer to practice nursing, assist in the practice of nursing, or use any title, abbreviation, or designation to indicate that the person is practicing nursing or assisting in the practice of nursing in this state unless that person is currently licensed or registered under this chapter. An advanced practice registered nurse shall use the abbreviation “APRN” and may use the applicable role designation of certified nurse practitioner, certified registered nurse anesthetist, certified nurse midwife, or certified clinical nurse specialist inclusive of population foci. A currently licensed specialty practice registered nurse shall use the abbreviation “SPRN”; a currently licensed registered nurse shall use the abbreviation “R.N.”; a currently licensed practical nurse shall use the abbreviation “L.P.N.”; and an unlicensed assistive person with current registration may use the title identified by the employer. A person may not use the title “nurse” or be referred to as a “nurse” unless the person is currently licensed by the board or exempt under section 43-12.1-04.

Source: S.L. 1977, ch. 400, § 1; 1995, ch. 403, § 4; 2001, ch. 372, § 2; 2013, ch. 321, § 2.

43-12.1-04. Persons exempt from provisions of chapter. [Effective through August 31, 2022]

This chapter does not apply to a person that is not licensed or registered under this chapter and is:

  1. A person that performs nursing interventions in cases of emergency or disaster.
  2. A student practicing nursing as a part of an in-state board-approved nursing education program.
  3. A licensed nurse of another state who is in good standing and who is employed in this state by the United States government or any of its bureaus, divisions, or agencies.
  4. A nurse licensed by another state or Canada, whose employment requires the nurse to accompany and care for a patient in transit for health care.
  5. A nurse licensed by another state whose employment by a resident of that state requires the nurse to accompany and care for the resident in North Dakota.
  6. An individual who performs nursing tasks for a family member.
  7. A person that renders assistance pursuant to chapter 23-27.
  8. A person licensed or registered under another chapter of this title and carrying out the therapy or practice for which the person is licensed or registered.
  9. A person that provides medications, other than by the parenteral route:
    1. Within a correctional facility, in compliance with section 12-44.1-29;
    2. Within a psychiatric residential treatment facility for children licensed under chapter 25-03.2 and North Dakota Administrative Code chapter 75-03-17;
    3. Within a treatment or care center for individuals with developmental disabilities licensed under chapter 25-16;
    4. Within a group home, a qualified residential treatment program, or an adult foster care facility licensed under section 50-11-01;
    5. Within the life skills and transition center, to the extent the individual who provides medications is a direct training technician or a vocational training technician as approved by the department of human services;
    6. Within a human service center licensed under chapter 50-06;
    7. Within a primary or secondary school under a program established under section 15.1-19-23 if the individual has received education and training in medication administration and has received written consent of the student’s parent or guardian; or
    8. Who is an employee of a qualified service provider agency who meets the criteria set forth in subsection 2 of section 50-24.1-18.
  10. A nurse currently licensed to practice nursing by another jurisdiction:
    1. Whose practice in another state requires that nurse to attend orientation, meetings, or continuing education in North Dakota;
    2. Who serves as a guest lecturer or short-term consultant; or
    3. Who provides evaluation undertaken on behalf of an accrediting organization.
  11. An individual, including a feeding assistant, performing nonhands-on tasks while employed in a Medicare-funded organization.
  12. A student practicing nursing as part of an out-of-state board-recognized nursing education program, upon written notification to the board and contingent upon clinical site availability.
  13. An individual who is registered on the state department of health nurse aide registry, including a certified nurse aide, home health aide, nurse aide, and medication assistant.

Source: S.L. 1977, ch. 400, § 1; 1991, ch. 453, §§ 3, 4; 1995, ch. 403, § 5; 1995, ch. 404, § 1; 1999, ch. 376, § 1; 2001, ch. 372, § 3; 2003, ch. 361, §§ 3, 4; 2003, ch. 362, § 1; 2007, ch. 112, § 2; 2007, ch. 256, § 12; 2009, ch. 361, § 1; 2011, ch. 195, § 3; 2011, ch. 123, §§ 3, 4; 2013, ch. 154, § 3; 2013, ch. 226, § 1; 2015, ch. 200, § 30, effective August 1, 2015; 2019, ch. 405, § 1, effective August 1, 2019; 2019, ch. 404, § 3, effective October 1, 2019.

Note.

S.L. 2013, chapter 226, § 1, codified as N.D.C.C. § 25-04-01.1, provides for the substitution of “life skills and transition center” for “developmental center at westwood park, Grafton” or “developmental center” or any derivatives of those terms wherever they appear in the North Dakota Century Code.

Section 43-12.1-04 was amended 2 times by the 2019 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 405, Session Laws 2019, House Bill 1099; and Section 3 of Chapter 404, Session Laws 2019, House Bill 1102.

Section 7 of chapter 405, S.L. 2019 provides, “ IMPLEMENTATION CONTINGENT UPON APPROPRIATION — APPLICATION. The department of human services is not required to implement or enforce sections 1, 2, 3, 4, and 6 of this Act with respect to agency foster home for adults and administration of routine medication if the legislative assembly does not provide an appropriation to support the implementation and enforcement of sections 1, 2, 3, 4, and 6 of this Act.”

43-12.1-04. Persons exempt from provisions of chapter. [Effective September 1, 2022]

This chapter does not apply to a person that is not licensed or registered under this chapter and is:

  1. A person that performs nursing interventions in cases of emergency or disaster.
  2. A student practicing nursing as a part of an in-state board-approved nursing education program.
  3. A licensed nurse of another state who is in good standing and who is employed in this state by the United States government or any of its bureaus, divisions, or agencies.
  4. A nurse licensed by another state or Canada, whose employment requires the nurse to accompany and care for a patient in transit for health care.
  5. A nurse licensed by another state whose employment by a resident of that state requires the nurse to accompany and care for the resident in North Dakota.
  6. An individual who performs nursing tasks for a family member.
  7. A person that renders assistance pursuant to chapter 23-27.
  8. A person licensed or registered under another chapter of this title and carrying out the therapy or practice for which the person is licensed or registered.
  9. A person that provides medications, other than by the parenteral route:
    1. Within a correctional facility, in compliance with section 12-44.1-29;
    2. Within a psychiatric residential treatment facility for children licensed under chapter 25-03.2 and North Dakota Administrative Code chapter 75-03-17;
    3. Within a treatment or care center for individuals with developmental disabilities licensed under chapter 25-16;
    4. Within a group home, a qualified residential treatment program, or an adult foster care facility licensed under section 50-11-01;
    5. Within the life skills and transition center, to the extent the individual who provides medications is a direct training technician or a vocational training technician as approved by the department of health and human services;
    6. Within a human service center licensed under chapter 50-06; or
    7. Within a primary or secondary school under a program established under section 15.1-19-23 if the individual has received education and training in medication administration and has received written consent of the student’s parent or guardian; or
    8. Who is an employee of a qualified service provider agency who meets the criteria set forth in subsection 2 of section 50-24.1-18.
  10. A nurse currently licensed to practice nursing by another jurisdiction:
    1. Whose practice in another state requires that nurse to attend orientation, meetings, or continuing education in North Dakota;
    2. Who serves as a guest lecturer or short-term consultant; or
    3. Who provides evaluation undertaken on behalf of an accrediting organization.
  11. An individual, including a feeding assistant, performing nonhands-on tasks while employed in a Medicare-funded organization.
  12. A student practicing nursing as part of an out-of-state board-recognized nursing education program, upon written notification to the board and contingent upon clinical site availability.
  13. An individual who is registered on the department of health and human services nurse aide registry, including a certified nurse aide, home health aide, nurse aide, and medication assistant.

Source: S.L. 1977, ch. 400, § 1; 1991, ch. 453, §§ 3, 4; 1995, ch. 403, § 5; 1995, ch. 404, § 1; 1999, ch. 376, § 1; 2001, ch. 372, § 3; 2003, ch. 361, §§ 3, 4; 2003, ch. 362, § 1; 2007, ch. 112, § 2; 2007, ch. 256, § 12; 2009, ch. 361, § 1; 2011, ch. 195, § 3; 2011, ch. 123, §§ 3, 4; 2013, ch. 154, § 3; 2013, ch. 226, § 1; 2015, ch. 200, § 30, effective August 1, 2015; 2019, ch. 405, § 1, effective August 1, 2019; 2019, ch. 404, § 3, effective October 1, 2019; 2021, ch. 352, § 359, effective September 1, 2022.

43-12.1-05. Board of nursing — Composition — Term of office.

There is a state board of nursing whose members must be appointed by the governor which must consist of five registered nurses, one advanced practice registered nurse, two licensed practical nurses, and one public member. Each board member must be appointed for a term of four years. No appointee may be appointed for more than two consecutive terms. An appointment for an unexpired term of more than eighteen months will constitute a full term. Terms of nurse board members must be evenly distributed to allow two licensed nurse board members to be appointed or reappointed each year.

Source: S.L. 1977, ch. 400, § 1; 1981, ch. 435, § 8; 1989, ch. 519, § 2; 1995, ch. 403, § 6; 2001, ch. 372, § 4; 2013, ch. 321, § 3.

43-12.1-06. Qualifications of board members.

  1. Each registered nurse must be an eligible voting resident of this state, possess an unencumbered registered nurse license under this chapter, and be currently engaged in practice as a registered nurse. A majority of the members under this subsection must be actively engaged in practice in a nurse-patient setting.
  2. Each licensed practical nurse must be an eligible voting resident of this state, possess an unencumbered practical nurse license under this chapter, and be currently engaged in practice as a licensed practical nurse. A majority of the members under this subsection must be actively engaged in practice in a nurse-patient setting.
  3. Each advanced practice registered nurse must be an eligible voting resident of this state, possess an unencumbered advanced practice registered nurse license under this chapter, and be currently engaged in practice as an advanced practice registered nurse.
  4. Each public member must be an eligible voting resident of this state and have no employment, professional license, or financial interest with any health care entity.
  5. Each member appointed to the board shall maintain the qualifications for appointment for the duration of the appointment. The governor may remove any member of the board for cause upon recommendation of two-thirds of the members of the board.

Source: S.L. 1977, ch. 400, § 1; 1993, ch. 54, § 106; 1995, ch. 403, § 7; 2003, ch. 361, § 5; 2013, ch. 321, § 4.

43-12.1-07. Compensation of board members.

A member of the board is entitled to receive compensation in an amount fixed by the board for each day or portion of a day the member is actually engaged in the performance of official duties and such mileage reimbursement as is provided for in section 54-06-09. In addition, the member is entitled to reimbursement for actual and necessary expenses in the amounts provided by law for state officers in section 44-08-04. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source: S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 3; 1997, ch. 432, § 18; 2001, ch. 372, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Mileage and travel expense of state officers and employees, see N.D.C.C. § 54-06-09.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-12.1-08. Duties of the board.

  1. The board shall regulate the practice of nursing as provided in this chapter.
  2. The board shall:
    1. Enforce this chapter.
    2. Adopt and enforce administrative rules necessary to administer this chapter after collaborating and consulting with North Dakota nursing organizations and other affected parties.
    3. Appoint and employ a registered nurse to serve as executive director and approve any additional staff positions necessary to administer this chapter.
    4. Establish fees and receive all moneys collected under this chapter and authorize all expenditures necessary to conduct the business of the board. Any balance of fees after payment of expenditures must be used to administer this chapter.
    5. Collect and analyze data regarding nursing education, nursing practice, and nursing resources.
    6. Issue and renew limited licenses or registrations to individuals requiring accommodation to practice nursing or assist in the practice of nursing.
    7. Establish a nursing student loan program funded by license fees to encourage individuals to enter and advance in the nursing profession.
    8. Establish a registry of individuals licensed or registered by the board.
    9. Report annually to the governor and nursing profession regarding the regulation of nursing in the state.
    10. Conduct and support projects pertaining to nursing education and practice.
    11. Adopt and enforce administrative rules to allow nurses licensed by another state to receive short-term clinical education in North Dakota health care facilities.
    12. License qualified applicants for nurse licensure.
    13. Register qualified applicants for the unlicensed assistive person registry.
    14. Adopt and enforce rules for continuing competence of licensees and registrants.
    15. Adopt and enforce rules for nursing practices.
    16. Issue practice statements regarding the interpretation and application of this chapter.

Source: S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 4; 1991, ch. 453, § 5; 1991, ch. 454, § 2; 1991, ch. 455, § 1; 1995, ch. 403, § 8; 2001, ch. 372, § 6; 2003, ch. 361, § 6; 2007, ch. 361, § 1; 2013, ch. 321, § 5.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

In General.

This section, and N.D.C.C. §§ 43-12.1-01, 43-12.1-02, and 43-12.1-10 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Former subsection (6) of this section, which provided a duty to establish standards for all nursing education programs or acknowledge programs accredited by national nursing accrediting agencies, was to be read in conjunction with subsections (7) through (16). Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Constitutionality.

This section is not violative of Article III, section 1, of the North Dakota Constitution.Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Former subsection (6) of this section which gave the board the power to establish standards for nursing education programs or acknowledge programs accredited by national nursing accrediting agencies, was not unconstitutional as an unlawful delegation of legislative power. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

The board, through its rule-making power in determining who may recommend a person to take a nursing license examination, has not usurped legislative power. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

Nursing Licensure.

The board has the authority pursuant to this section to direct that only associate and baccalaureate degree graduates may sit for practical and registered nursing license examinations, respectively. This appears to be a reasonable requirement in an area of standard setting. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

The board has the authority pursuant to this section to define “school” as “a post secondary educational institution offering transferable academic credit” excluding diploma nursing schools from operating nursing programs unless they offer transferable academic credits. That this marks a tightening of the rules as they relate to the licensing of nurses does not make the rule violative of the state or United States Constitutions. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

43-12.1-08.1. Prescriptive practices for registered nurses with advanced licenses. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-08.2. Nursing needs study. [Expired]

Expired under S.L. 2001, ch. 373, § 2.

43-12.1-09. Initial licensure and registration.

  1. The board shall license nurses and register unlicensed assistive person applicants. The board shall adopt and enforce administrative rules establishing qualifications for initial nursing licensure and unlicensed assistive person registration and for issuing limited licenses and registrations pursuant to subsection 3.
  2. Each applicant who successfully meets the requirements of this section is entitled to initial licensure or registration as follows:
    1. An applicant for licensure by examination to practice as a registered nurse or licensed practical nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit an official transcript that verifies completion of a board-approved in-state nursing education program that prepares the graduate for the level of licensure sought; or submit an official transcript that verifies completion of an out-of-state nursing education program that is approved by the state board of nursing of the jurisdiction in which the program is headquartered and that prepares the graduate for the level of licensure sought. The board shall adopt rules establishing standards for the approval of out-of-state nursing education programs.
      3. Pass an examination approved by the board.
    2. An applicant for licensure by endorsement to practice as a registered nurse or licensed practical nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit an official transcript that verifies completion of a nursing education program approved by the state board of nursing of the jurisdiction in which the program is headquartered and preparing the graduate for the level of licensure sought.
      3. Submit proof of initial licensure by examination with the examination meeting North Dakota requirements for licensure examinations in effect at the time the applicant qualified for initial licensure.
      4. Submit evidence of current unencumbered licensure in another state or jurisdiction or meet continued competency requirements as established by the board.
      5. Notwithstanding the foregoing requirements of this subdivision, an applicant for licensure as a licensed practical nurse is not required to meet any additional academic educational requirements for licensure as a licensed practical nurse if the applicant has been licensed in another state as a licensed practical nurse based upon completion of a registered nurse education program and if the applicant has had at least twenty-four months of unencumbered practice as a licensed practical nurse in another state within the four-year period immediately preceding the application.
    3. An applicant for licensure as an advanced practice registered nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit evidence of appropriate education and current certification in an advanced nursing role by a national nursing organization meeting criteria as established by the board. An advanced practice registered nurse applicant must have a graduate degree with a nursing focus or must have completed the educational requirements in effect when the applicant was initially licensed.
      3. Possess or show evidence of application for a current unencumbered registered nurse license.
    4. An applicant for licensure as an advanced practice registered nurse who completed an advanced nursing education program and was licensed or certified in advanced practice before December 31, 2015, may apply for and receive an advanced practice license if that applicant meets the requirements that were in effect at the time the applicant qualified for initial advanced practice licensure.
    5. An applicant for unlicensed assistive person registration shall:
      1. Submit a completed application and the appropriate fee as established by the board.
      2. Provide verification of appropriate training or evidence of certification or evaluation in the performance of basic nursing interventions.
    6. An applicant for licensure as a specialty practice registered nurse shall:
      1. Submit a completed application and appropriate fee as established by the board.
      2. Submit evidence of appropriate education and current certification in a specialty nursing role by a national nursing organization meeting criteria as established by the board. A specialty practice registered nurse applicant must have the educational preparation and national certification within a defined area of nursing practice.
      3. Possess or show evidence of application for a current unencumbered registered nurse license.
  3. For good cause shown, the board may issue a limited license or registration to an applicant.

Source: S.L. 1977, ch. 400, § 1; 1995, ch. 403, § 9; 1997, ch. 369, § 1; 2001, ch. 372, § 7; 2003, ch. 361, § 8; 2007, ch. 361, § 2; 2013, ch. 321, § 6.

Law Reviews.

The Midwife and the Forceps: The Wild Terrain of Midwifery Law in the United States and Where North Dakota Is Heading in the Birthing Debate,84 N.D. L. Rev. 997 (2008).

43-12.1-09.1. Nursing licensure or registration — Criminal history record checks.

The board shall require each applicant for initial licensure and registration, including applicants for a multistate license under chapter 43-12.4, to submit to a statewide and nationwide criminal history record check. The board may require any licensee or registrant who is renewing a license or registration, including renewal of a multistate license under chapter 43-12.4, and any licensee or registrant who is the subject of a disciplinary investigation or proceeding to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the applicant, licensee, or registrant. The board may grant a nonrenewable temporary permit to an applicant for initial or renewed license or registration who submits to a criminal history record check as required by this chapter if the applicant has met all other licensure or registration requirements in accordance with subsection 2 of section 43-12.1-09. The board may not share with, or disclose to, the interstate commission of nurse licensure compact administrators any contents of a nationwide criminal history record check.

Source: S.L. 2007, ch. 115, § 9; 2013, ch. 321, § 7; 2017, ch. 287, § 1, effective August 1, 2017; 2017, ch. 288, § 1, effective August 1, 2017.

Note.

Section 43-12.1-09.1 was amended 2 times by the 2017 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 288, Session Laws 2017, House Bill 1096; and Section 1 of Chapter 287, Session Laws 2017, House Bill 1097.

43-12.1-10. Renewal of license or registration — Reactivation.

  1. The board shall renew a current license to practice as an advanced practice registered nurse, specialty practice registered nurse, registered nurse, or licensed practical nurse if the licensee submits a renewal application, submits the appropriate fee established by the board, and meets all requirements for licensure. If a licensee does not renew a license before the license expires, the board shall reactivate that license if that licensee meets the reactivation requirements set by the board.
  2. The board shall renew the registration of an unlicensed assistive person if the registrant submits a renewal application, the appropriate fee established by the board, and documentation of competency by the employer or evidence of certification or evaluation. A lapsed unlicensed assistive person registration may be reactivated upon submission of the application, payment of the appropriate fee established by the board, and documentation of competency or evidence of certification or evaluation.
  3. For good cause shown, the board may issue a limited license or registration to a licensee or registrant. The board shall adopt rules establishing qualifications for issuing limited licenses and registrations pursuant to this subsection.

Source: S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 5; 1995, ch. 403, § 10; 2001, ch. 372, § 8; 2003, ch. 361, § 9; 2007, ch. 361, § 3.

Notes to Decisions

In General.

This section, and N.D.C.C. §§ 43-12.1-01 and 43-12.1-02 provide standards, albeit broad in nature. Because of the nature of the subject matter, however, of necessity they must be quite broad. Trinity Medical Ctr. v. North Dakota Bd. of Nursing, 399 N.W.2d 835, 1987 N.D. LEXIS 235 (N.D. 1987).

43-12.1-11. Duties of licensees and registrants.

Each individual licensed or registered by the board shall provide information requested by the board at the time of renewal or reactivation. Each individual licensed or registered by the board shall report to the board any knowledge of the performance of those acts or omissions that are violations of this chapter or grounds for disciplinary action as set forth in section 43-12.1-14. Each licensee or registrant shall report to the board any judgment or settlement in a professional or occupational malpractice action to which the licensee or registrant is a party. Any person, other than a licensee or registrant alleged to have violated this chapter, participating in good faith in making a report, assisting in an investigation, or furnishing information to an investigator, is immune from any civil or criminal liability that otherwise may result from reporting required by this section. For the purpose of any civil or criminal proceeding the good faith of any person required to report under this section is presumed.

Source: S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 2; 1989, ch. 519, § 6; 1995, ch. 403, § 11; 2001, ch. 372, § 9; 2003, ch. 361, § 12; 2013, ch. 321, § 8.

43-12.1-12. Emergency treatment by nurses.

A nurse licensed under this chapter, who, in good faith, provides nursing care at the scene of an emergency, may provide only that nursing care as in the nurse’s judgment is at the time indicated. In the event of a disaster, a licensed nurse may initiate any therapeutic measure that is indicated according to that nurse’s judgment.

Source: S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 3; 1995, ch. 403, § 12.

Law Reviews.

For Case Comment: Health — Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).

43-12.1-13. Disciplinary proceedings.

Disciplinary proceedings under this chapter must be conducted in accordance with chapter 28-32. Fees for each separate violation or the assessment of costs and disbursements, or both, may be imposed against a respondent in addition to any licensure or registration sanctions the board may impose. An appeal from the final decision of the board may be taken to the district court of Burleigh County under chapter 28-32. The board shall furnish to the required state and federal databanks a list of individuals who have been disciplined by the board.

Source: S.L. 1977, ch. 400, § 1; 1989, ch. 519, § 7; 1995, ch. 403, § 13; 2001, ch. 372, § 10; 2013, ch. 321, § 9.

43-12.1-13.1. Emergency treatment by nurses. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-13.2. Emergency treatment by licensed nurses during disaster. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-14. Grounds for discipline — Penalties.

The board may deny, limit, revoke, encumber, or suspend any license or registration to practice nursing issued by the board or applied for in accordance with this chapter; reprimand, place on probation, or otherwise discipline a licensee, registrant, or applicant; deny admission to licensure or registration examination; require evidence of evaluation and treatment; or issue a nondisciplinary letter of concern to a licensee, registrant, or applicant, upon proof that the person:

  1. Has been arrested, charged, or convicted by a court, or has entered a plea of nolo contendere to a crime in any jurisdiction that relates adversely to the practice of nursing and the licensee or registrant has not demonstrated sufficient rehabilitation under section 12.1-33-02.1;
  2. Has been disciplined by a board of nursing in another jurisdiction, or has had a license or registration to practice nursing or to assist in the practice of nursing or to practice in another health care occupation or profession denied, revoked, suspended, or otherwise sanctioned;
  3. Has engaged in any practice inconsistent with the standards of nursing practice;
  4. Has obtained or attempted to obtain by fraud or deceit a license or registration to practice nursing, or has submitted to the board any information that is fraudulent, deceitful, or false;
  5. Has engaged in a pattern of practice or other behavior that demonstrates professional misconduct;
  6. Has diverted or attempted to divert supplies, equipment, drugs, or controlled substances for personal use or unauthorized use;
  7. Has practiced nursing or assisted in the practice of nursing in this state without a current license or registration or as otherwise prohibited by this chapter;
  8. Has failed to report any violation of this chapter or rules adopted under this chapter; or
  9. Has failed to observe and follow the duly adopted standards, policies, directives, and orders of the board, or has violated any other provision of this chapter.

Source: S.L. 1977, ch. 400, § 1; 1987, ch. 516, § 4; 1989, ch. 519, § 8; 1995, ch. 403, § 14; 2001, ch. 372, § 11; 2009, ch. 362, § 1; 2013, ch. 321, § 10.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Failure to Renew.

Subdivision 7 does not apply to a first-time, inadvertent failure to renew a license. Sande v. State, 440 N.W.2d 264, 1989 N.D. LEXIS 76 (N.D. 1989).

As a matter of law, nurse’s failure to renew her license was not a “willful” and “repeated” violation of the Nurse Practices Act. Sande v. State, 440 N.W.2d 264, 1989 N.D. LEXIS 76 (N.D. 1989).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Revocation of nurse’s license to practice profession, 55 A.L.R.3d 1141.

43-12.1-14.1. Grounds for discipline — Assistant to the nurse. [Repealed]

Repealed by S.L. 1995, ch. 403, § 17.

43-12.1-14.2. Unlicensed assistive person — Practice without a registration.

If the board determines an unlicensed assistive person, whose registration has expired, violated subsection 7 of section 43-12.1-14 by practicing without a current registration for a period of up to four months from the initial date of employment, the action of the board in the case of a first violation is limited to the issuance of a letter of concern.

Source: S.L. 2009, ch. 362, § 2.

43-12.1-14.3. Limitations on disciplinary actions.

The board may not take disciplinary action against an advanced practice registered nurse based solely on the advanced practice registered nurse prescribing or dispensing ivermectin for the off-label treatment or prevention of severe acute respiratory syndrome coronavirus 2 identified as SARS-CoV-2, or any mutation or viral fragments of SARS-CoV-2.This section does not limit the board from taking a disciplinary action on another basis, such as unlicensed practice, inappropriate documentation, or substandard care, or any basis that would in the board’s determination harm the patient.

Source: S.L. 2021, 1st Sp. Sess. ch. 559, § 1, effective November 15, 2021.

43-12.1-15. Violation — Penalties.

It is a class B misdemeanor for a person to willfully:

  1. Buy or sell, fraudulently obtain, or furnish any questions and answers used in the licensing examination for nurses, or assist others in the performance of these acts.
  2. Buy or sell, fraudulently obtain, or furnish any record that might enable an individual to obtain a license in this state or assist others in the performance of these acts.
  3. Practice as an advanced practice registered nurse, a specialty practice registered nurse, a registered nurse, a licensed practical nurse, or an unlicensed assistive person through use of a transcript from a school of nursing, diploma, certificate of registration, license, or record that was fraudulently created or obtained.
  4. Practice as an advanced practice registered nurse, a specialty practice registered nurse, a registered nurse, a licensed practical nurse, or an unlicensed assistive person as defined by this chapter unless licensed to do so.
  5. Conduct any education program preparing an individual for nursing licensure or registration unless the program has been approved by the board.
  6. Employ a person to practice nursing or perform nursing interventions unless the person is licensed or registered by the board.

Source: S.L. 1977, ch. 400, § 1; 1991, ch. 453, § 6; 1995, ch. 403, § 15; 2001, ch. 372, § 12; 2003, ch. 361, § 13.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-12.1-16. Delegation of medication administration.

A licensed nurse may delegate medication administration to a person exempt under subsections 9 and 13 of section 43-12.1-04.

Source: S.L. 1999, ch. 376, § 2; 2001, ch. 372, § 13; 2011, ch. 195, § 4.

43-12.1-16.1. Supervision and delegation of nursing interventions.

A nurse may supervise and delegate nursing interventions to an individual exempt under subsection 13 of section 43-12.1-04.

Source: S.L. 2011, ch. 195, § 5.

43-12.1-17. Nursing education programs.

  1. The board shall adopt and enforce administrative rules establishing standards for nursing education programs leading to initial or advanced licensure. In-state programs must be approved by the board. Out-of-state programs must be approved by the state board of nursing of the jurisdiction in which the program is headquartered. The board shall approve, review, and reapprove nursing education programs in this state. The board may not require a statement of intent as part of the approval process under this section.
  2. The standards established under this section for a program leading to licensure as a licensed practical nurse:
    1. Must allow for a program that offers two or more academic years of course study or the equivalent;
    2. Must allow for a program that offers less than two academic years of course study or the equivalent; and
    3. May not allow for a program that offers less than one academic year of course study or the equivalent.
  3. The standards established under this section for a program leading to licensure as a registered nurse:
    1. Must allow for a program that offers four or more academic years of course study or the equivalent;
    2. Must allow for a program that offers less than four academic years of course study or the equivalent; and
    3. May not allow for a program that offers less than two academic years of course study or the equivalent.

Source: S.L. 2003, ch. 361, § 7; 2013, ch. 321, § 11.

43-12.1-18. Nursing practice standards. [Repealed]

Repealed by S.L. 2013, ch. 321, § 12.

43-12.1-19. Transition from transitional nurse licenses. [Expired]

Expired under S.L. 2003, ch. 361, § 10.

43-12.1-20. Continuing education requirements. [Repealed]

Repealed by S.L. 2013, ch. 321, § 12.

CHAPTER 43-12.2 Medical Personnel Loan Repayment Program [Repealed]

[Repealed by S.L. 2015, ch. 294, § 8]

§ 43-12.2-01. State-community matching loan repayment program for nurse practitioners, physician assistants, and certified nurse midwives. [Repealed]

Source: S.L. 1993, ch. 425, § 2; 2009, ch. 363, § 1; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-02. Powers of state health council. [Repealed]

Source: S.L. 1993, ch. 425, § 3; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-03. Nurse practitioner, physician assistant, and certified nurse midwife selection criteria — Eligibility for loan repayment. [Repealed]

Source: S.L. 1993, ch. 425, § 4; 2009, ch. 363, § 2; 2011, ch. 3, § 18; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-04. Community selection criteria. [Repealed]

Source: S.L. 1993, ch. 425, § 5; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-05. Eligible loans. [Repealed]

Source: S.L. 1993, ch. 425, § 6; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-06. Breach of loan repayment contract. [Repealed]

Source: S.L. 1993, ch. 425, § 7; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-07. Release from contract obligation. [Repealed]

Source: S.L. 1993, ch. 425, § 8; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-08. Term of obligated service. [Repealed]

Source: S.L. 1993, ch. 425, § 9; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

§ 43-12.2-09. Payment. [Repealed]

Source: S.L. 1993, ch. 425, § 10; repealed by 2015, ch. 294, § 8, effective August 1, 2015.

CHAPTER 43-12.3 Health Care Professional Student Loan Repayment Program

43-12.3-01. Student loan repayment programs — Health care professionals.

The health council shall administer student loan repayment programs, as established by this chapter, for health care professionals willing to provide services in areas of this state that have a defined need for such services.

Source: S.L. 2015, ch. 294, § 1, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-02. Application process.

The health council shall develop an application process for public and private entities seeking to fill health care needs and for health care professionals willing to provide necessary services in exchange for benefits under a student loan repayment program.

Source: S.L. 2015, ch. 294, § 2, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

§ 43-12.3-03. Public and private entities - Selection criteria - Matching funds.

  1. The health council shall establish criteria to be used in selecting public and private entities for participation in a program. The criteria must include:
    1. The number of health care professionals, by specified field, already providing services in the area;
    2. Access to health care services in the area; and
    3. The level of support from the area.
  2. The health council may consult with health care and social service providers, advocacy groups, governmental entities, and others in establishing criteria and evaluating needs based on the criteria.
  3. An entity may not be selected for participation unless it contractually commits to provide matching funds equal to the amount required for a loan repayment program in accordance with section 43-12.3-06.

Source: S.L. 2015, ch. 294, § 3, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-04. Public and private entities — Eligibility for participation — Priority.

In selecting public and private entities for participation in a program the health council shall give priority to an entity that:

  1. Meets the selection criteria;
  2. Is located in an area that is statistically underserved; and
  3. Is located at least twenty miles [32.18 kilometers] outside the boundary of a city having more than forty thousand residents.

Source: S.L. 2015, ch. 294, § 4, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-05. Health care professionals — Selection criteria.

  1. The health council shall establish criteria to be used in selecting health care professionals for participation in a student loan repayment program. The criteria must include:
    1. The health care professional’s specialty;
    2. The need for the health care professional’s specialty within an area;
    3. The health care professional’s education and experience;
    4. The health care professional’s date of availability and anticipated term of availability; and
    5. The health care professional’s willingness to accept Medicare and Medicaid assignments, if applicable.
  2. In selecting health care professionals for participation in the program the health council shall require that the individual:
    1. Is physically present at and provides services on a full-time basis to an entity that meets the requirements of section 43-12.3-04; or
      1. Is physically present at and provides services on at least a half-time basis to an entity that meets the requirements of section 43-12.3-04;
      2. Provides telehealth services to a second entity that meets the requirements of section 43-12.3-04; and
      3. Verifies that the services provided under paragraphs 1 and 2 are equal to the full-time requirement of subdivision a.
  3. In selecting health care professionals for participation in a program, the health council may consider an individual’s:
    1. Length of residency in this state; and
    2. Attendance at an in-state or an out-of-state institution of higher education.

Source: S.L. 2015, ch. 294, § 5, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

43-12.3-06. Student loan repayment program — Contract.

  1. The health council shall enter a contract with a selected health care professional. The health council shall agree to provide student loan repayments on behalf of the selected health care professional subject to the requirements and limitations of this section.
    1. For a physician:
      1. The loan repayment may not exceed twenty thousand dollars per year, and may not exceed one hundred thousand dollars over five years; and
      2. The matching funds must equal fifty percent of the amount required in paragraph 1.
    2. For a clinical psychologist:
      1. The loan repayment may not exceed twelve thousand dollars per year, and may not exceed sixty thousand dollars over five years; and
      2. The matching funds must equal twenty-five percent of the amount required in paragraph 1.
    3. For an advanced practice registered nurse or a physician assistant:
      1. The loan repayment may not exceed four thousand dollars per year, and may not exceed twenty thousand dollars over five years; and
      2. The matching funds must equal ten percent of the amount required in paragraph 1.
    4. For a behavioral health professional:
      1. The loan repayment may not exceed four thousand dollars per year, and may not exceed twenty thousand dollars over five years; and
      2. The matching funds must equal ten percent of the amount required in paragraph 1.
    5. For purposes of this section, a behavioral health professional means an individual who practices in the behavioral health field and is:
      1. A licensed addiction counselor;
      2. A licensed professional counselor;
      3. A licensed social worker;
      4. A registered nurse;
      5. A specialty practice registered nurse; or
      6. A licensed behavior analyst.
  2. All moneys received by the health council under this section are appropriated to the health council on a continuing basis, to be used exclusively for the purposes of this chapter.

Source: S.L. 2015, ch. 294, § 6, effective August 1, 2015; 2019, ch. 348, § 1, effective August 1, 2019; 2021, ch. 310, § 1, effective August 1, 2021.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

§ 43-12.3-07. Powers of the health council — Continuing appropriation.

1. The health council may:

a. Receive and expend any gifts, grants, and other funds for the purposes of this program;

b. Participate in any federal programs providing for the repayment of student loans on behalf of health care professionals; and

c. Do all things necessary and proper for the administration of this chapter.

Source: S.L. 2015, ch. 294, § 7, effective August 1, 2015.

Note.

Section 9 of chapter 294, S.L. 2015 provides, “ APPLICATION . This Act applies to loan repayment contracts entered into on or after August 1, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-12.2, is governed by chapter 43-12.2, as it existed on July 31, 2015. Any loan repayment contract entered into before August 1, 2015, in accordance with chapter 43-17.2, is governed by chapter 43-17.2, as it existed on July 31, 2015.”

CHAPTER 43-12.4 Nurse Licensure Compact

Source: S.L. 2017, ch. 287, § 2, effective August 1, 2017.

43-12.4-01. Nurse licensure compact.

History. S.L. 2017, ch. 287, § 2, effective August 1, 2017.

ARTICLE I — FINDINGS AND DECLARATION OF PURPOSE

  1. The party states find that:
    1. The health and safety of the public are affected by the degree of compliance with and the effectiveness of enforcement activities related to state nurse licensure laws;
    2. Violations of nurse licensure and other laws regulating the practice of nursing may result in injury or harm to the public;
    3. The expanded mobility of nurses and the use of advanced communication technologies as part of our nation’s health care delivery system require greater coordination and cooperation among states in the areas of nurse licensure and regulation;
    4. New practice modalities and technology make compliance with individual state nurse licensure laws difficult and complex;
    5. The current system of duplicative licensure for nurses practicing in multiple states is cumbersome and redundant for both nurses and states; and
    6. Uniformity of nurse licensure requirements throughout the states promotes public safety and public health benefits.
  2. The general purposes of this compact are to:
    1. Facilitate the states’ responsibility to protect the public’s health and safety;
    2. Ensure and encourage the cooperation of party states in the areas of nurse licensure and regulation;
    3. Facilitate the exchange of information between party states in the areas of nurse regulation, investigation, and adverse actions;
    4. Promote compliance with the laws governing the practice of nursing in each jurisdiction;
    5. Invest all party states with the authority to hold a nurse accountable for meeting all state practice laws in the state in which the patient is located at the time care is rendered through the mutual recognition of party state licenses;
    6. Decrease redundancies in the consideration and issuance of nurse licenses; and
    7. Provide opportunities for interstate practice by nurses who meet uniform licensure requirements.
  3. “Coordinated licensure information system” means an integrated process for collecting, storing, and sharing information on nurse licensure and enforcement activities related to nurse licensure laws which is administered by a nonprofit organization composed of and controlled by licensing boards.
  4. “Current significant investigative information” means:
    1. Investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the nurse to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction; or
    2. Investigative information that indicates that the nurse represents an immediate threat to public health and safety regardless of whether the nurse has been notified and had an opportunity to respond.
  5. “Encumbrance” means a revocation or suspension of, or any limitation on, the full and unrestricted practice of nursing imposed by a licensing board.
  6. “Home state” means the party state that is the nurse’s primary state of residence.
  7. “Licensing board” means a party state’s regulatory body responsible for issuing nurse licenses.
  8. “Multistate license” means a license to practice as a registered or a licensed practical/vocational nurse issued by a home state licensing board which authorizes the licensed nurse to practice in all party states under a multistate licensure privilege.
  9. “Multistate licensure privilege” means a legal authorization associated with a multistate license permitting the practice of nursing as either a registered nurse or licensed practical/vocational nurse in a remote state.
  10. “Nurse” means registered nurse or licensed practical/vocational nurse, as those terms are defined by each party state’s practice laws.
  11. “Party state” means any state that has adopted this compact.
  12. “Remote state” means a party state, other than the home state.
  13. “Single-state license” means a nurse license issued by a party state which authorizes practice only within the issuing state and does not include a multistate licensure privilege to practice in any other party state.
  14. “State” means a state, territory, or possession of the United States and the District of Columbia.
  15. “State practice laws” means a party state’s laws, rules, and regulations that govern the practice of nursing, define the scope of nursing practice, and create the methods and grounds for imposing discipline. “State practice laws” do not include requirements necessary to obtain and retain a license, except for qualifications or requirements of the home state.
    1. Meets the home state’s qualifications for licensure or renewal of licensure, as well as, all other applicable state laws;
    2. (1)  Has graduated or is eligible to graduate from a licensing board-approved registered nurse or licensed practical/vocational nurse prelicensure education program; or
    3. Has, if a graduate of a foreign prelicensure education program not taught in English or if English is not the individual’s native language, successfully passed an English proficiency examination that includes the components of reading, speaking, writing, and listening;
    4. Has successfully passed an NCLEX-RN® or NCLEX-PN® Examination or recognized predecessor, as applicable;
    5. Is eligible for or holds an active, unencumbered license;
    6. Has submitted, in connection with an application for initial licensure or licensure by endorsement, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state’s criminal records;
    7. Has not been convicted or found guilty, or has entered an agreed disposition, of a felony offense under applicable state or federal criminal law;
    8. Has not been convicted or found guilty, or has entered an agreed disposition, of a misdemeanor offense related to the practice of nursing as determined on a case-by-case basis;
    9. Is not currently enrolled in an alternative program;
    10. Is subject to self-disclosure requirements regarding current participation in an alternative program; and
    11. Has a valid United States social security number.
      1. Only the home state has the power to take adverse action against a nurse’s license issued by the home state.
      2. For purposes of taking adverse action, the home state licensing board shall give the same priority and effect to reported conduct received from a remote state as it would if such conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.
      3. Current, threatened, or reasonably anticipated litigation;
      4. Negotiation of contracts for the purchase or sale of goods, services, or real estate;
      5. Accusing any person of a crime or formally censuring any person;
      6. Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
      7. Disclosure of information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy;
      8. Disclosure of investigatory records compiled for law enforcement purposes;
      9. Disclosure of information related to any reports prepared by or on behalf of the Commission for the purpose of investigation of compliance with this compact; or
      10. Matters specifically exempted from disclosure by federal or state statute.
    12. Appoint committees, including advisory committees comprised of administrators, state nursing regulators, state legislators or their representatives, consumer representatives, and other such interested persons;
    13. Provide and receive information from, and to cooperate with, law enforcement agencies;
    14. Adopt and use an official seal; and
    15. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of nurse licensure and practice.
      1. Provide written notice to the defaulting state and other party states of the nature of the default, the proposed means of curing the default, or any other action to be taken by the commission; and
      2. Provide remedial training and specific technical assistance regarding the default.

ARTICLE II — DEFINITIONS

As used in this compact:

1. “Adverse action” means any administrative, civil, equitable, or criminal action permitted by a state’s laws which is imposed by a licensing board or other authority against a nurse, including actions against an individual’s license or multistate licensure privilege such as revocation, suspension, probation, monitoring of the licensee, limitation on the licensee’s practice, or any other encumbrance on licensure affecting a nurse’s authorization to practice, including issuance of a cease and desist action.

2. “Alternative program” means a nondisciplinary monitoring program approved by a licensing board.

ARTICLE III — GENERAL PROVISIONS AND JURISDICTION

1. A multistate license to practice registered or licensed practical/vocational nursing issued by a home state to a resident in that state will be recognized by each party state as authorizing a nurse to practice as a registered nurse or as a licensed practical/vocational nurse, under a multistate licensure privilege, in each party state.

2. A state shall implement procedures for considering the criminal history records of applicants for initial multistate license or licensure by endorsement. Such procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant’s criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state’s criminal records.

3. Each party state shall require the following for an applicant to obtain or retain a multistate license in the home state:

(2) Has graduated from a foreign registered nurse or licensed practical/vocational nurse prelicensure education program that:

  1. Has been approved by the authorized accrediting body in the applicable country; and
  2. Has been verified by an independent credentials review agency to be comparable to a licensing board-approved prelicensure education program;

4. All party states may, in accordance with existing state due process law, to take adverse action against a nurse’s multistate licensure privilege such as revocation, suspension, probation, or any other action that affects a nurse’s authorization to practice under a multistate licensure privilege, including cease and desist actions. If a party state takes such action, it promptly shall notify the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the home state of any such actions by remote states.

5. A nurse practicing in a party state shall comply with the state practice laws of the state in which the client is located at the time service is provided. The practice of nursing is not limited to patient care, but includes all nursing practice as defined by the state practice laws of the party state in which the client is located. The practice of nursing in a party state under a multistate licensure privilege will subject a nurse to the jurisdiction of the licensing board, the courts, and the laws of the party state in which the client is located at the time service is provided.

6. Individuals not residing in a party state continue to be able to apply for a party state’s single- state license as provided under the laws of each party state. However, the single-state license granted to these individuals will not be recognized as granting the privilege to practice nursing in any other party state. This compact does not affect the requirements established by a party state for the issuance of a single-state license.

7. Any nurse holding a home state multistate license, on the effective date of this compact, may retain and renew the multistate license issued by the nurse’s then-current home state, provided that:

a. A nurse, who changes primary state of residence after this compact’s effective date, shall meet all applicable requirements of subsection 3 of article III to obtain a multistate license from a new home state.

b. A nurse who fails to satisfy the multistate licensure requirements in subsection 3 of article III due to a disqualifying event occurring after this compact’s effective date is ineligible to retain or renew a multistate license, and the nurse’s multistate license must be revoked or deactivated in accordance with applicable rules adopted by the Interstate Commission of Nurse Licensure Compact Administrators (“commission”).

ARTICLE IV — APPLICATIONS FOR LICENSURE IN A PARTY STATE

1. Upon application for a multistate license, the licensing board in the issuing party state shall ascertain, through the coordinated licensure information system, whether the applicant has ever held, or is the holder of, a license issued by any other state, whether there are any encumbrances on any license or multistate licensure privilege held by the applicant, whether any adverse action has been taken against any license or multistate licensure privilege held by the applicant, and whether the applicant is currently participating in an alternative program.

2. A nurse may hold a multistate license, issued by the home state, in only one party state at a time.

3. If a nurse changes primary state of residence by moving between two party states, the nurse shall apply for licensure in the new home state, and the multistate license issued by the prior home state will be deactivated in accordance with applicable rules adopted by the commission.

a. The nurse may apply for licensure in advance of a change in primary state of residence.

b. A multistate license may not be issued by the new home state until the nurse provides satisfactory evidence of a change in primary state of residence to the new home state and satisfies all applicable requirements to obtain a multistate license from the new home state.

4. If a nurse changes primary state of residence by moving from a party state to a nonparty state, the multistate license issued by the prior home state will convert to a single-state license, valid only in the former home state.

ARTICLE V — ADDITIONAL AUTHORITIES INVESTED IN PARTY STATE LICENSING BOARDS

1. In addition to the other powers conferred by state law, a licensing board may:

a. Take adverse action against a nurse’s multistate licensure privilege to practice within that party state.

b. Issue cease and desist orders or impose an encumbrance on a nurse’s authority to practice within that party state.

c. Complete any pending investigations of a nurse who changes primary state of residence during the course of such investigations. The licensing board also may take any appropriate action and promptly shall report the conclusions of such investigations to the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the new home state of any such actions.

d. Issue subpoenas for both hearings and investigations which require the attendance and testimony of witnesses, as well as, the production of evidence. Subpoenas issued by a licensing board in a party state for the attendance and testimony of witnesses or the production of evidence from another party state must be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state in which the witnesses or evidence are located.

e. Obtain and submit, for each nurse licensure applicant, fingerprint or other biometric-based information to the federal bureau of investigation for criminal background checks, receive the results of the federal bureau of investigation record search on criminal background checks, and use the results in making licensure decisions.

f. If otherwise permitted by state law, recover from the affected nurse the costs of investigations and disposition of cases resulting from any adverse action taken against that nurse.

g. Take adverse action based on the factual findings of the remote state, if the licensing board follows its own procedures for taking such adverse action.

2. If adverse action is taken by the home state against a nurse’s multistate license, the nurse’s multistate licensure privilege to practice in all other party states must be deactivated until all encumbrances have been removed from the multistate license. All home state disciplinary orders that impose adverse action against a nurse’s multistate license shall include a statement that the nurse’s multistate licensure privilege is deactivated in all party states during the pendency of the order.

3. This compact does not override a party state’s decision that participation in an alternative program may be used in lieu of adverse action. The home state licensing board shall deactivate the multistate licensure privilege under the multistate license of any nurse for the duration of the nurse’s participation in an alternative program.

ARTICLE VI — COORDINATED LICENSURE INFORMATION SYSTEM AND EXCHANGE OF INFORMATION

1. All party states shall participate in a coordinated licensure information system of all licensed registered nurses and licensed practical/vocational nurses. This system includes information on the licensure and disciplinary history of each nurse, as submitted by party states, to assist in the coordination of nurse licensure and enforcement efforts.

2. The commission, in consultation with the administrator of the coordinated licensure information system, shall formulate necessary and proper procedures for the identification, collection, and exchange of information under this compact.

3. All licensing boards promptly shall report to the coordinated licensure information system any adverse action, any current significant investigative information, denials of applications (with the reasons for such denials), and nurse participation in alternative programs known to the licensing board regardless of whether such participation is deemed nonpublic or confidential under state law.

4. Current significant investigative information and participation in nonpublic or confidential alternative programs must be transmitted through the coordinated licensure information system only to party state licensing boards.

5. Notwithstanding any other provision of law, all party state licensing boards contributing information to the coordinated licensure information system may designate information that may not be shared with nonparty states or disclosed to other entities or individuals without the express permission of the contributing state.

6. Any personally identifiable information obtained from the coordinated licensure information system by a party state licensing board may not be shared with nonparty states or disclosed to other entities or individuals except to the extent permitted by the laws of the party state contributing the information.

7. Any information contributed to the coordinated licensure information system which is subsequently required to be expunged by the laws of the party state contributing that information also must be expunged from the coordinated licensure information system.

8. The compact administrator of each party state shall furnish a uniform data set to the compact administrator of each other party state, which must include, at a minimum:

a. Identifying information;

b. Licensure data;

c. Information related to alternative program participation; and

d. Other information that may facilitate the administration of this compact, as determined by commission rules.

9. The compact administrator of a party state shall provide all investigative documents and information requested by another party state.

ARTICLE VII — ESTABLISHMENT OF THE INTERSTATE COMMISSION OF NURSE LICENSURE COMPACT ADMINISTRATORS

1. The party states hereby create and establish a joint public entity known as the Interstate Commission of Nurse Licensure Compact Administrators.

a. The commission is an instrumentality of the party states.

b. Venue is proper, and judicial proceedings by or against the commission must be brought solely and exclusively, in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

c. This compact may not be construed to be a waiver of sovereign immunity.

2. Membership, voting, and meetings.

a. Each party state must have and be limited to one administrator. The head of the state licensing board or designee is the administrator of this compact for each party state. Any administrator may be removed or suspended from office as provided by the law of the state from which the administrator is appointed. Any vacancy occurring in the commission must be filled in accordance with the laws of the party state in which the vacancy exists.

b. Each administrator is entitled to one vote with regard to the promulgation of rules and creation of bylaws and otherwise has an opportunity to participate in the business and affairs of the commission. An administrator shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for an administrator’s participation in meetings by telephone or other means of communication.

c. The commission shall meet at least once during each calendar year. Additional meetings must be held as set forth in the bylaws or rules of the commission.

d. All meetings are open to the public, and public notice of meetings must be given in the same manner as required under the rulemaking provisions in Article VIII.

e. The commission may convene in a closed, nonpublic meeting if the commission discusses:

(1) Noncompliance of a party state with its obligations under this compact;

(2) The employment, compensation, discipline, or other personnel matters, practices, or procedures related to specific employees or other matters related to the commission’s internal personnel practices and procedures;

f. If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons for the actions taken, including a description of the views expressed. All documents considered in connection with an action must be identified in such minutes. All minutes and documents of a closed meeting must remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

3. By a majority vote of the administrators, the commission shall prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of this compact, including:

a. Establishing the fiscal year of the commission;

b. Providing reasonable standards and procedures:

(1) For the establishment and meetings of other committees; and

(2) Governing any general or specific delegation of any authority or function of the commission;

c. Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public’s interest, the privacy of individuals, and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the administrators vote to close a meeting in whole or in part. As soon as practicable, the commission shall make public a copy of the vote to close the meeting revealing the vote of each administrator, with no proxy votes allowed;

d. Establishing the titles, duties, and authority and reasonable procedures for the election of the officers of the commission;

e. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any party state, the bylaws exclusively must govern the personnel policies and programs of the commission; and

f. Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of this compact after the payment or reserving of all of its debts and obligations;

4. The commission shall publish its bylaws and rules, and any amendments thereto, in a convenient form on the website of the commission.

5. The commission shall maintain its financial records in accordance with the bylaws.

6. The commission shall meet and take such actions as are consistent with the provisions of this compact and the bylaws.

7. The commission may:

a. Promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules have the force and effect of law and are binding in all party states;

b. Bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any licensing board to sue or be sued under applicable law may not be affected;

c. Purchase and maintain insurance and bonds;

d. Borrow, accept, or contract for services of personnel, including, but not limited to, employees of a party state or nonprofit organizations;

e. Cooperate with other organizations that administer state compacts related to the regulation of nursing, including sharing administrative or staff expenses, office space, or other resources;

f. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact, and to establish the commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;

g. Accept any and all appropriate donations, grants, and gifts of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of the same if at all times the commission avoids any appearance of impropriety or conflict of interest;

h. Lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, whether real, personal, or mixed if at all times the commission avoids any appearance of impropriety;

i. Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, whether real, personal, or mixed;

j. Establish a budget and make expenditures;

k. Borrow money;

8. Financing of the commission.

a. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

b. The commission may also levy on and collect an annual assessment from each party state to cover the cost of its operations, activities, and staff in its annual budget as approved each year. The aggregate annual assessment amount, if any, must be allocated based upon a formula to be determined by the commission, which shall promulgate a rule that is binding upon all party states.

c. The commission may not incur obligations of any kind before securing the funds adequate to meet the same, nor may the commission pledge the credit of any of the party states, except by, and with the authority of, such party state.

d. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission must be audited yearly by a certified or licensed public accountant, and the report of the audit must be included in and become part of the annual report of the commission.

9. Qualified immunity, defense, and indemnification.

a. The administrators, officers, executive director, employees, and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against which the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties or responsibilities. However, this subdivision may not be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional, willful, or wanton misconduct of that person.

b. The commission shall defend any administrator, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person against which the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities. However, this subdivision may not be construed to prohibit that person from retaining that person’s own counsel and provided further that the actual or alleged act, error, or omission did not result from that person’s intentional, willful, or wanton misconduct.

c. The commission shall indemnify and hold harmless any administrator, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities provided that the actual or alleged act, error, or omission did not result from the intentional, willful, or wanton misconduct of that person.

ARTICLE VIII — RULEMAKING

1. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this article and the rules adopted under this article. Rules and amendments become binding as of the date specified in each rule or amendment and have the same force and effect as provisions of this compact.

2. Rules or amendments to the rules must be adopted at a regular or special meeting of the commission.

3. Before the promulgation and adoption of a final rule or rules by the commission, and at least sixty days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:

a. On the website of the commission; and

b. On the website of each licensing board or the publication in which each state would otherwise publish proposed rules.

4. The notice of proposed rulemaking must include:

a. The proposed time, date, and location of the meeting at which the rule will be considered and voted upon;

b. The text of the proposed rule or amendment, and the reason for the proposed rule;

c. A request for comments on the proposed rule from any interested person; and

d. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

5. Before adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions, and arguments, which must be made available to the public.

6. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment.

7. The commission shall publish the place, time, and date of the scheduled public hearing.

a. Hearings must be conducted in a manner providing each person that wishes to comment a fair and reasonable opportunity to comment orally or in writing. All hearings will be recorded, and a copy must be made available upon request.

b. This section may not be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

8. If no one appears at the public hearing, the commission may proceed with promulgation of the proposed rule.

9. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

10. By majority vote of all administrators, the commission shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

11. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing. However, the usual rulemaking procedures provided in this compact and in this section must be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:

a. Meet an imminent threat to public health, safety, or welfare;

b. Prevent a loss of commission or party state funds; or

c. Meet a deadline for the promulgation of an administrative rule that is required by federal law or rule.

12. The commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions must be posted on the website of the commission. The revision is subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge must be made in writing, and delivered to the commission before the end of the notice period. If a challenge is not made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

ARTICLE IX — OVERSIGHT, DISPUTE, RESOLUTION AND ENFORCEMENT

1. Oversight.

a. Each party state shall enforce this compact and take all actions necessary and appropriate to effectuate this compact’s purposes and intent.

b. The commission is entitled to receive service of process in any proceeding that may affect the powers, responsibilities, or actions of the commission, and has standing to intervene in such a proceeding for all purposes. Failure to provide service of process in such proceeding to the commission renders a judgment or order void as to the commission, this compact, or promulgated rules.

2. Default, technical assistance, and termination.

a. If the commission determines a party state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:

b. If a state in default fails to cure the default, the defaulting state’s membership in this compact may be terminated upon an affirmative vote of a majority of the administrators, and all rights, privileges, and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

c. Termination of membership in this compact may be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate must be given by the commission to the governor of the defaulting state and to the executive officer of the defaulting state’s licensing board and each of the party states.

d. A state whose membership in this compact has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

e. The commission may not bear any costs related to a state that is found to be in default or whose membership in this compact has been terminated unless agreed upon in writing between the commission and the defaulting state.

f. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district in which the commission has its principal offices. The prevailing party must be awarded all costs of such litigation, including reasonable attorney’s fees.

3. Dispute resolution.

a. Upon request by a party state, the commission shall attempt to resolve disputes related to the compact which arise among party states and between party and nonparty states.

b. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes, as appropriate.

c. If the commission cannot resolve disputes among party states arising under this compact:

(1) The party states may submit the issues in dispute to an arbitration panel, which will be comprised of individuals appointed by the compact administrator in each of the affected party states and an individual mutually agreed upon by the compact administrators of all the party states involved in the dispute.

(2) The decision of a majority of the arbitrators is final and binding.

4. Enforcement.

a. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

b. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district in which the commission has its principal offices against a party state that is in default to enforce compliance with the provisions of this compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorney’s fees.

c. The remedies herein are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

ARTICLE X — EFFECTIVE DATE, WITHDRAWAL, AND AMENDMENT

1. This compact becomes effective and binding on the earlier of the date of legislative enactment of this compact into law by no less than twenty-six states or December 31, 2018. All party states to this compact, that also were parties to the prior nurse licensure compact, superseded by this compact, (“prior compact”), are deemed to have withdrawn from said prior compact within six months after the effective date of this compact.

2. Each party state to this compact shall continue to recognize a nurse’s multistate licensure privilege to practice in that party state issued under the prior compact until such party state has withdrawn from the prior compact.

3. Any party state may withdraw from this compact by enacting a statute repealing the same. A party state’s withdrawal does not take effect until six months after enactment of the repealing statute.

4. A party state’s withdrawal or termination does not affect the continuing requirement of the withdrawing or terminated state’s licensing board to report adverse actions and significant investigations occurring prior to the effective date of such withdrawal or termination.

5. This compact may not be construed to invalidate or prevent any nurse licensure agreement or other cooperative arrangement between a party state and a nonparty state that is made in accordance with the other provisions of this compact.

6. This compact may be amended by the party states. An amendment to this compact does not become effective and binding upon the party states unless and until it is enacted into the laws of all party states.

7. Representatives of nonparty states to this compact must be invited to participate in the activities of the commission, on a nonvoting basis, prior to the adoption of this compact by all states.

ARTICLE XI — CONSTRUCTION AND SEVERABILITY

This compact must be liberally construed so as to effectuate the purposes thereof. The provisions of this compact are severable, and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States, or if the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance may not be affected thereby. If this compact is held to be contrary to the constitution of any party state, this compact remains in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

The term “head of the state licensing board” as used to define the compact administrator in subdivision a of subsection 2 of article VII means the executive director of the state board of nursing.

CHAPTER 43-12.5 Advanced Practice Registered Nurse Licensure Compact

Source: S.L. 2017, ch. 288, § 2, effective August 1, 2017.

43-12.5-01. Advanced practice registered nurse licensure compact.

History. S.L. 2017, ch. 288, § 2, effective August 1, 2017; 2021, hb1044, § 1, effective August 1, 2021.

ARTICLE I — FINDINGS AND DECLARATION OF PURPOSE

  1. The party states find that:
    1. The health and safety of the public are affected by the degree of compliance with advanced practice registered nurse licensure requirements and the effectiveness of enforcement activities related to state advanced practice registered nurse licensure laws;
    2. Violations of advanced practice registered nurse licensure and other laws regulating the practice of nursing may result in injury or harm to the public;
    3. The expanded mobility of advanced practice registered nurses and the use of advanced communication and intervention technologies as part of our nation’s health care delivery system require greater coordination and cooperation among states in the areas of advanced practice registered nurse licensure and regulation;
    4. New practice modalities and technology make compliance with individual state advanced practice registered nurse licensure laws difficult and complex;
    5. The current system of duplicative advanced practice registered nurse licensure for advanced practice registered nurses practicing in multiple states is cumbersome and redundant for health care delivery systems, payors, state licensing boards, regulators, and advanced practice registered nurses; and
    6. Uniformity of advanced practice registered nurse licensure requirements throughout the states promotes public safety and public health benefits as well as providing a mechanism to increase access to care.
  2. The general purposes of this compact are to:
    1. Facilitate the states’ responsibility to protect the public’s health and safety;
    2. Ensure and encourage the cooperation of party states in the areas of advanced practice registered nurse licensure and regulation, including promotion of uniform licensure requirements;
    3. Facilitate the exchange of information between party states in the areas of advanced practice registered nurse regulation, investigation, and adverse actions;
    4. Promote compliance with the laws governing advanced practice registered nurse practice in each jurisdiction;
    5. Invest all party states with the authority to hold an advanced practice registered nurse accountable for meeting all state practice laws in the state in which the patient is located at the time care is rendered through the mutual recognition of party state privileges to practice;
    6. Decrease redundancies in the consideration and issuance of advanced practice registered nurse licenses; and
    7. Provide opportunities for interstate practice by advanced practice registered nurses who meet uniform licensure requirements.
  3. “Advanced practice registered nurse uniform licensure requirements” means the minimum uniform licensure, education, and examination requirements set forth in subsection 2 of article III.
  4. “Adverse action” means any administrative, civil, equitable, or criminal action permitted by a state’s laws which is imposed by a licensing board or other authority against an advanced practice registered nurse, including actions against an individual’s license or multistate licensure privilege such as revocation, suspension, probation, monitoring of the licensee, limitation on the licensee’s practice, or any other encumbrance on licensure affecting an advanced practice registered nurse’s authorization to practice, including the issuance of a cease and desist action.
  5. “Alternative program” means a non-disciplinary monitoring program approved by a licensing board.
  6. “Coordinated licensure information system” means an integrated process for collecting, storing, and sharing information on advanced practice registered nurse licensure and enforcement activities related to advanced practice registered nurse licensure laws which is administered by a nonprofit organization composed of and controlled by licensing boards.
  7. “Current significant investigatory information” means:
    1. Investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the advanced practice registered nurse to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction; or
    2. Investigative information that indicates that the advanced practice registered nurse represents an immediate threat to public health and safety regardless of whether the advanced practice registered nurse has been notified and had an opportunity to respond.
  8. “Encumbrance” means a revocation or suspension of, or any limitation on, the full and unrestricted practice of nursing imposed by a licensing board in connection with a disciplinary proceeding.
  9. “Home state” means the party state that is the advanced practice registered nurse’s primary state of residence.
  10. “Licensing board” means a party state’s regulatory body responsible for regulating the practice of advanced practice registered nursing.
  11. “Multistate license” means an advanced practice registered nurse license to practice as an advanced practice registered nurse issued by a home state licensing board which authorizes the advanced practice registered nurse to practice as an advanced practice registered nurse in all party states under a multistate licensure privilege, in the same role and population focus as the advanced practice registered nurse is licensed in the home state.
  12. “Multistate licensure privilege” means a legal authorization associated with an advanced practice registered nurse multistate license which permits an advanced practice registered nurse to practice as an advanced practice registered nurse in a remote state, in the same role and population focus as the advanced practice registered nurse is licensed in the home state.
  13. “Noncontrolled prescription drug” means a device or drug that is not a controlled substance and is prohibited under state or federal law from being dispensed without a prescription. The term includes a device or drug that bears or is required to bear the legend “caution: federal law prohibits dispensing without prescription” or “prescription only” or other legend that complies with federal law.
  14. “Party state” means any state that has adopted this compact.
  15. “Population focus” means one of the six population foci of family or individual across the lifespan, adult-gerontology, pediatrics, neonatal, women’s health or gender-related, and psychiatric mental health.
  16. “Prescriptive authority” means the legal authority to prescribe medications and devices as defined by party state laws.
  17. “Remote state” means a party state that is not the home state.
  18. “Role” means one of the four recognized roles of certified registered nurse anesthetists, certified nurse midwives, clinical nurse specialists, and certified nurse practitioners.
  19. “Single-state license” means an advanced practice registered nurse license issued by a party state which authorizes practice only within the issuing state and does not include a multistate licensure privilege to practice in any other party state.
  20. “State” means a state, territory, or possession of the United States and the District of Columbia.
  21. “State practice laws” means a party state’s laws, rules, and regulations that govern advanced practice registered nurse practice, define the scope of advanced nursing practice, and create the methods and grounds for imposing discipline except that prescriptive authority must be treated in accordance with subsections 6 and 7 of article III. State practice laws do not include:
    1. A party state’s laws, rules, and regulations requiring supervision or collaboration with a health care professional, except for laws, rules, and regulations regarding prescribing controlled substances; and
    2. The requirements necessary to obtain and retain an advanced practice registered nurse license, except for qualifications or requirements of the home state.
    3. Has, if a graduate of a foreign advanced practice registered nurse program not taught in English or if English is not the individual’s native language, successfully passed an English proficiency examination that includes the components of reading, speaking, writing, and listening;
    4. Has successfully passed a national certification examination that measures advanced practice registered nurse, role and population-focused competencies and maintains continued competence as evidenced by recertification in the role and population focus through the national certification program;
    5. Holds an active, unencumbered license as a registered nurse and an active, unencumbered authorization to practice as an advanced practice registered nurse;
    6. Has successfully passed an NCLEX-RN® examination or recognized predecessor, as applicable;
    7. Has practiced for at least two thousand eighty hours as an advanced practice registered nurse in a role and population focus congruent with the applicant’s education and training. For purposes of this section, practice must not include hours obtained as part of enrollment in an advanced practice registered nurse education program;
    8. Has submitted, in connection with an application for initial licensure or licensure by endorsement, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state or, if applicable, foreign country’s criminal records;
    9. Has not been convicted or found guilty or, has entered into an agreed disposition of a felony offense under applicable state, federal, or foreign criminal law;
    10. Has not been convicted or found guilty or has entered into an agreed disposition, of a misdemeanor offense related to the practice of nursing as determined by factors set forth in rules adopted by the commission;
    11. Is not currently enrolled in an alternative program;
    12. Is subject to self-disclosure requirements regarding current participation in an alternative program; and
    13. Has a valid United States social security number.
      1. Only the home state may take adverse action against an advanced practice registered nurse’s license issued by the home state.
      2. For purposes of taking adverse action, the home state licensing board shall give the same priority and effect to reported conduct that occurred outside of the home state as it would if such conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.
      3. Current, threatened, or reasonably anticipated litigation;
      4. Negotiation of contracts for the purchase or sale of goods, services, or real estate;
      5. Accusing any person of a crime or formally censuring any person;
      6. Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
      7. Disclosure of information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy;
      8. Disclosure of investigatory records compiled for law enforcement purposes;
      9. Disclosure of information related to any reports prepared by or on behalf of the commission for the purpose of investigation of compliance with this compact; or
      10. Matters specifically exempted from disclosure by federal or state statute.
    14. Provide and receive information from, and to cooperate with, law enforcement agencies;
    15. Adopt and use an official seal; and
    16. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of advanced practice registered nurse licensure and practice.
      1. Provide written notice to the defaulting state and other party states of the nature of the default, the proposed means of curing the default or any other action to be taken by the commission; and
      2. Provide remedial training and specific technical assistance regarding the default.

ARTICLE II — DEFINITIONS

As used in this compact:

1. “Advanced practice registered nurse” means a registered nurse who has gained additional specialized knowledge, skills, and experience through a program of study recognized or defined by the Interstate Commission of Advanced Practice Registered Nurse Compact Administrators (“commission”), and who is licensed to perform advanced nursing practice. An advanced practice registered nurse is licensed in an advanced practice registered nurse role that is congruent with an advanced practice registered nurse educational program, certification, and commission rules.

2. “Advanced practice registered nurse licensure” means the regulatory mechanism used by a party state to grant legal authority to practice as an advanced practice registered nurse.

ARTICLE III — GENERAL PROVISIONS AND JURISDICTION

1. A state must implement procedures for considering the criminal history records of applicants for initial advanced practice registered nurse licensure or advanced practice registered nurse licensure by endorsement. Such procedures must include the submission of fingerprints or other biometric-based information by advanced practice registered nurse applicants for the purpose of obtaining an applicant’s criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state’s criminal records.

2. Each party state shall require an applicant to satisfy the following advanced practice registered nurse uniform licensure requirements to obtain or retain a multistate license in the home state:

a. Meets the home state’s qualifications for licensure or renewal of licensure, as well as, all other applicable state laws;

b. (1) Has completed an accredited graduate-level education program that prepares the applicant for one of the four recognized roles and population foci; or

(2) Has completed a foreign advanced practice registered nurse education program for one of the four recognized roles and population foci that:

  1. Has been approved by the authorized accrediting body in the applicable country; and
  2. Has been verified by an independent credentials review agency to be comparable to a licensing board-approved advanced practice registered nurse education program;

3. An advanced practice registered nurse issued a multistate license must be licensed in an approved role and at least one approved population focus.

4. An advanced practice registered nurse multistate license issued by a home state to a resident in that state will be recognized by each party state as authorizing the advanced practice registered nurse to practice as an advanced practice registered nurse in each party state, under a multistate licensure privilege, in the same role and population focus as the advanced practice registered nurse is licensed in the home state.

5. Nothing in this compact shall affect the requirements established by a party state for the issuance of a single-state license, except that an individual may apply for a single-state license, instead of a multistate license, even if otherwise qualified for the multistate license. However, the failure of such an individual to affirmatively opt for a single-state license may result in the issuance of a multistate license.

6. Issuance of an advanced practice registered nurse multistate license must include prescriptive authority for noncontrolled prescription drugs.

7. For each state in which an advanced practice registered nurse seeks authority to prescribe controlled substances, the advanced practice registered nurse shall satisfy all requirements imposed by such state in granting and renewing such authority.

8. An advanced practice registered nurse issued a multistate license may assume responsibility and accountability for patient care independent of any supervisory or collaborative relationship. This authority may be exercised in the home state and in any remote state in which the advanced practice registered nurse exercises a multistate licensure privilege.

9. All party states are authorized, in accordance with state due process laws, to take adverse action against an advanced practice registered nurse’s multistate licensure privilege such as revocation, suspension, probation, or any other action that affects an advanced practice registered nurse’s authorization to practice under a multistate licensure privilege, including cease and desist actions. If a party state takes such action, it promptly shall notify the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the home state of any such actions by remote states.

10. Except as otherwise expressly provided in this compact, an advanced practice registered nurse practicing in a party state shall comply with the state practice laws of the state in which the client is located at the time service is provided. Advanced practice registered nurse practice is not limited to patient care, but includes all advanced nursing practice as defined by the state practice laws of the party state in which the client is located. Advanced practice registered nurse practice in a party state under a multistate licensure privilege subjects the advanced practice registered nurse to the jurisdiction of the licensing board, the courts, and the laws of the party state in which the client is located at the time service is provided.

11. Except as otherwise expressly provided in this compact, this compact does not affect additional requirements imposed by states for advanced practice registered nursing. However, a multistate licensure privilege to practice registered nursing granted by a party state must be recognized by other party states as satisfying any state law requirement for registered nurse licensure as a precondition for authorization to practice as an advanced practice registered nurse in that state.

12. Individuals not residing in a party state shall continue to be able to apply for a party state’s single-state advanced practice registered nurse license as provided under the laws of each party state. However, the single-state license granted to these individuals will not be recognized as granting the privilege to practice as an advanced practice registered nurse in any other party state.

ARTICLE IV — APPLICATIONS FOR ADVANCED PRACTICE REGISTERED NURSE LICENSURE IN A PARTY STATE

1. Upon application for an advanced practice registered nurse multistate license, the licensing board in the issuing party state shall ascertain, through the coordinated licensure information system, whether the applicant has ever held or is the holder of a licensed practical/vocational nursing license, a registered nursing license, or an advanced practice registered nurse license issued by any other state, whether there are any encumbrances on any license or multistate licensure privilege held by the applicant, whether any adverse action has been taken against any license or multistate licensure privilege held by the applicant, and whether the applicant is currently participating in an alternative program.

2. An advanced practice registered nurse may hold a multistate advanced practice registered nurse license, issued by the home state, in only one party state at a time.

3. If an advanced practice registered nurse changes primary state of residence by moving between two party states, the advanced practice registered nurse shall apply for advanced practice registered nurse licensure in the new home state, and the multistate license issued by the prior home state must be deactivated in accordance with applicable commission rules.

a. The advanced practice registered nurse may apply for licensure in advance of a change in primary state of residence.

b. A multistate advanced practice registered nurse license may not be issued by the new home state until the advanced practice registered nurse provides satisfactory evidence of a change in primary state of residence to the new home state and satisfies all applicable requirements to obtain a multistate advanced practice registered nurse license from the new home state.

4. If an advanced practice registered nurse changes primary state of residence by moving from a party state to a nonparty state, the advanced practice registered nurse multistate license issued by the prior home state converts to a single-state license, valid only in the former home state.

ARTICLE V — ADDITIONAL AUTHORITIES INVESTED IN PARTY STATE LICENSING BOARDS

1. In addition to the other powers conferred by state law, a licensing board may:

a. Take adverse action against an advanced practice registered nurse’s multistate licensure privilege to practice within that party state.

b. Issue cease and desist orders or impose an encumbrance on an advanced practice registered nurse’s authority to practice within that party state.

c. Complete any pending investigations of an advanced practice registered nurse who changes primary state of residence during the course of such investigations. The licensing board also may take any appropriate action and promptly shall report the conclusions of such investigations to the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system promptly shall notify the new home state of any such actions.

d. Issue subpoenas for both hearings and investigations which require the attendance and testimony of witnesses, as well as, the production of evidence. Subpoenas issued by a party state licensing board for the attendance and testimony of witnesses and the production of evidence from another party state must be enforced in the latter state by any court of competent jurisdiction, according to that court’s practice and procedure in considering subpoenas issued in its own proceedings. The issuing licensing board shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state in which the witnesses and evidence are located.

e. Obtain and submit, for an advanced practice registered nurse licensure applicant, fingerprints or other biometric-based information to the federal bureau of investigation for criminal background checks, receive the results of the federal bureau of investigation record search on criminal background checks and use the results in making licensure decisions.

f. If otherwise permitted by state law, recover from the affected advanced practice registered nurse the costs of investigations and disposition of cases resulting from any adverse action taken against that advanced practice registered nurse.

g. Take adverse action based on the factual findings of another party state, if the licensing board follows its own procedures for taking such adverse action.

2. If adverse action is taken by a home state against an advanced practice registered nurse’s multistate licensure, the privilege to practice in all other party states under a multistate licensure privilege must be deactivated until all encumbrances have been removed from the advanced practice registered nurse’s multistate license. All home state disciplinary orders that impose adverse action against an advanced practice registered nurse’s multistate license must include a statement that the advanced practice registered nurse’s multistate licensure privilege is deactivated in all party states during the pendency of the order.

3. This compact does not override a party state’s decision that participation in an alternative program may be used in lieu of adverse action. The home state licensing board shall deactivate the multistate licensure privilege under the multistate license of any advanced practice registered nurse for the duration of the advanced practice registered nurse’s participation in an alternative program.

ARTICLE VI — COORDINATED LICENSURE INFORMATION SYSTEM AND EXCHANGE INFORMATION

1. All party states shall participate in a coordinated licensure information system of all advanced practice registered nurses, licensed registered nurses, and licensed practical/vocational nurses. This system includes information on the licensure and disciplinary history of each advanced practice registered nurse, as submitted by party states, to assist in the coordinated administration of advanced practice registered nurse licensure and enforcement efforts.

2. The commission, in consultation with the administrator of the coordinated licensure information system, shall formulate necessary and proper procedures for the identification, collection, and exchange of information under this compact.

3. All licensing boards promptly shall report to the coordinated licensure information system any adverse action, any current significant investigative information, denials of applications (with the reasons for such denials), and advanced practice registered nurse participation in alternative programs known to the licensing board regardless of whether such participation is deemed nonpublic and confidential under state law.

4. Notwithstanding any other provision of law, all party state licensing boards contributing information to the coordinated licensure information system may designate information that may not be shared with nonparty states or disclosed to other entities or individuals without the express permission of the contributing state.

5. Any personally identifiable information obtained from the coordinated licensure information system by a party state licensing board may not be shared with nonparty states or disclosed to other entities or individuals except to the extent permitted by the laws of the party state contributing the information.

6. Any information contributed to the coordinated licensure information system which is subsequently required to be expunged by the laws of the party state contributing the information must be removed from the coordinated licensure information system.

7. The compact administrator of each party state shall furnish a uniform data set to the compact administrator of each other party state, which must include, at a minimum:

a. Identifying information;

b. Licensure data;

c. Information related to alternative program participation information; and

d. Other information that may facilitate the administration of this compact, as determined by commission rules.

8. The compact administrator of a party state shall provide all investigative documents and information requested by another party state.

ARTICLE VII — ESTABLISHMENT OF THE INTERSTATE COMMISSION OF ADVANCED PRACTICE REGISTERED NURSE COMPACT ADMINISTRATION

1. The party states hereby create and establish a joint public agency known as the interstate commission of advanced practice registered nurse compact administrators.

a. The commission is an instrumentality of the party states.

b. Venue is proper, and judicial proceedings by or against the commission must be brought solely and exclusively, in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

c. This compact may not be construed to be a waiver of sovereign immunity.

2. Membership, voting, and meetings.

a. Each party state must have and be limited to one administrator. The head of the state licensing board or designee is the administrator of this compact for each party state. Any administrator may be removed or suspended from office as provided by the law of the state from which the administrator is appointed. Any vacancy occurring in the commission must be filled in accordance with the laws of the party state in which the vacancy exists.

b. Each administrator is entitled to one vote with regard to the promulgation of rules and creation of bylaws and otherwise must have an opportunity to participate in the business and affairs of the commission. An administrator shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for an administrator’s participation in meetings by telephone or other means of communication.

c. The commission shall meet at least once during each calendar year. Additional meetings must be held as set forth in the bylaws or rules of the commission.

d. All meetings are open to the public, and public notice of meetings must be given in the same manner as required under the rulemaking provisions in article VIII.

e. The commission may convene in a closed, nonpublic meeting if the commission must discuss:

(1) Noncompliance of a party state with its obligations under this compact;

(2) The employment, compensation, discipline, or other personnel matters, practices, or procedures related to specific employees or other matters related to the commission’s internal personnel practices and procedures;

f. If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons for those actions, including a description of the views expressed. All documents considered in connection with an action must be identified in such minutes. All minutes and documents of a closed meeting must remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

3. By a majority vote of the administrators, the commission shall prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of this compact, including:

a. Establishing the fiscal year of the commission;

b. Providing reasonable standards and procedures:

(1) For the establishment and meetings of other committees; and

(2) Governing any general or specific delegation of any authority or function of the commission;

c. Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings, and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public’s interest, the privacy of individuals, and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the administrators vote to close a meeting in whole or in part. As soon as practicable, the commission shall make public a copy of the vote to close the meeting revealing the vote of each administrator, with no proxy votes allowed;

d. Establishing the titles, duties, and authority and reasonable procedures for the election of the officers of the commission;

e. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any party state, the bylaws exclusively govern the personnel policies and programs of the commission; and

f. Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of this compact after the payment and reserving of all of its debts and obligations.

4. The commission shall publish its bylaws and rules, and any amendments to the bylaws and rules, in a convenient form on the website of the commission.

5. The commission shall maintain its financial records in accordance with the bylaws.

6. The commission shall meet and take such actions as are consistent with the provisions of this compact and the bylaws.

7. The commission may:

a. Promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules have the force and effect of law and are binding in all party states;

b. Bring and prosecute legal proceedings or actions in the name of the commission. However, the standing of any licensing board to sue or be sued under applicable law may not be affected;

c. Purchase and maintain insurance and bonds;

d. Borrow, accept, or contract for services of personnel, including employees of a party state or nonprofit organizations;

e. Cooperate with other organizations that administer state compacts related to the regulation of nursing, including sharing administrative or staff expenses, office space, or other resources;

f. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact, and to establish the commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;

g. Accept any and all appropriate donations, grants, and gifts of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of the same. However, at all times the commission shall strive to avoid any appearance of impropriety or conflict of interest;

h. Lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve, or use, any property, whether real, personal, or mixed. However, at all times the commission shall strive to avoid any appearance of impropriety;

i. Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, whether real, personal, or mixed;

j. Establish a budget and make expenditures;

k. Borrow money;

l. Appoint committees, including advisory committees comprised of administrators, state nursing regulators, state legislators, or their representatives, and consumer representatives, and other such interested persons;

m. Issue advisory opinions;

8. Financing of the commission.

a. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

b. The commission may also levy on and collect an annual assessment from each party state to cover the cost of its operations, activities, and staff its annual budget as approved each year. The aggregate annual assessment amount, if any, must be allocated based upon a formula to be determined by the commission, which shall promulgate a rule that is binding upon all party states.

c. The commission may not incur obligations of any kind before securing the funds adequate to meet the same, nor may the commission pledge the credit of any of the party states, except by, and with the authority of, such party state.

d. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission must be audited yearly by a certified or licensed public accountant, and the report of the audit must be included in and become part of the annual report of the commission.

9. Qualified immunity, defense, and indemnification.

a. The administrators, officers, executive director, employees, and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against which the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties, or responsibilities. However, this subdivision may not be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional, willful, or wanton misconduct of that person.

b. The commission shall defend any administrator, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person against which the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that nothing herein may be construed to prohibit that person from retaining that person’s own counsel and the actual or alleged act, error, or omission may not result from that person’s intentional, willful, or wanton misconduct.

c. The commission shall indemnify and hold harmless any administrator, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, if the actual or alleged act, error, or omission did not result from the intentional, willful, or wanton misconduct of that person.

ARTICLE VIII — RULEMAKING

1. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this article and the rules adopted thereunder. Rules and amendments become binding as of the date specified in each rule or amendment and have the same force and effect as provisions of this compact.

2. Rules or amendments to the rules must be adopted at a regular or special meeting of the commission.

3. Before promulgation and adoption of a final rule or rules by the commission, and at least sixty days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:

a. On the website of the commission; and

b. On the website of each licensing board or the publication in which each state would otherwise publish proposed rules.

4. The notice of proposed rulemaking must include:

a. The proposed time, date, and location of the meeting at which the rule will be considered and voted upon;

b. The text of the proposed rule or amendment, and the reason for the proposed rule;

c. A request for comments on the proposed rule from any interested person; and

d. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

5. Before adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions, and arguments, which must be made available to the public.

6. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment.

7. The commission shall publish the place, time, and date of the scheduled public hearing.

a. Hearings must be conducted in a manner providing each person that wishes to comment a fair and reasonable opportunity to comment orally or in writing. All hearings must be recorded, and a copy must be made available upon request.

b. This section may not be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

8. If no one appears at the public hearing, the commission may proceed with promulgation of the proposed rule.

9. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

10. By majority vote of all administrators, the commission shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

11. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing. However, the usual rulemaking procedures provided in this compact and in this section must be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:

a. Meet an imminent threat to public health, safety, or welfare;

b. Prevent a loss of commission or party state funds; or

c. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule.

12. The commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions must be posted on the website of the commission. The revision may be subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge must be made in writing, and delivered to the commission, before the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

ARTICLE IX — OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT

1. Oversight.

a. Each party state shall enforce this compact and take all actions necessary and appropriate to effectuate this compact’s purposes and intent.

b. The commission is entitled to receive service of process in any proceeding that may affect the powers, responsibilities, or actions of the commission, and has standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission renders a judgment or order void as to the commission, this compact, or promulgated rules.

2. Default, technical assistance, and termination.

a. If the commission determines that a party state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:

b. If a state in default fails to cure the default, the defaulting state’s membership in this compact may be terminated upon an affirmative vote of a majority of the administrators, and all rights, privileges, and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

c. Termination of membership in this compact must be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate must be given by the commission to the governor of the defaulting state and to the executive officer of the defaulting state’s licensing board, the defaulting state’s licensing board, and each of the party states.

d. A state whose membership in this compact has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

e. The commission may not bear any costs related to a state that is found to be in default or whose membership in this compact has been terminated, unless agreed upon in writing between the commission and the defaulting state.

f. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district in which the commission has its principal offices. The prevailing party must be awarded all costs of such litigation, including reasonable attorneys’ fees.

3. Dispute resolution.

a. Upon request by a party state, the commission shall attempt to resolve disputes related to the compact that arise among party states and between party and nonparty states.

b. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes, as appropriate.

c. If the commission cannot resolve disputes among party states arising under this compact:

(1) The party states may submit the issues in dispute to an arbitration panel, which will be comprised of individuals appointed by the compact administrator in each of the affected party states and an individual mutually agreed upon by the compact administrators of all the party states involved in the dispute.

(2) The decision of a majority of the arbitrators is final and binding.

4. Enforcement.

a. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

b. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district in which the commission has its principal offices against a party state that is in default to enforce compliance with the provisions of this compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorneys’ fees.

c. The remedies herein are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

ARTICLE X — EFFECTIVE DATE, WITHDRAWAL, AND AMENDMENT

1. This compact comes into limited effect at such time as this compact has been enacted into law in seven party states for the sole purpose of establishing and convening the commission to adopt rules relating to its operation.

2. Any state that joins this compact after the commission’s initial adoption of the advanced practice registered nurse uniform licensure requirements are subject to all rules that have been previously adopted by the commission.

3. Any party state may withdraw from this compact by enacting a statute repealing the same. A party state’s withdrawal does not take effect until six months after enactment of the repealing statute.

4. A party state’s withdrawal or termination does not affect the continuing requirement of the withdrawing or terminated state’s licensing board to report adverse actions and significant investigations occurring before the effective date of such withdrawal or termination.

5. This compact may not be construed to invalidate or prevent any advanced practice registered nurse licensure agreement or other cooperative arrangement between a party state and a nonparty state that does not conflict with the provisions of this compact.

6. This compact may be amended by the party states. An amendment to this compact does not become effective and binding upon any party state until it is enacted into the laws of all party states.

7. Representatives of nonparty states to this compact must be invited to participate in the activities of the commission, on a nonvoting basis, before the adoption of this compact by all states.

ARTICLE XI — CONSTRUCTION AND SEVERABILITY

This compact must be liberally construed so as to effectuate the purposes of this compact. The provisions of this compact are severable, and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States, or if the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance is not affected thereby. If this compact is held to be contrary to the constitution of any party state, this compact remains in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

CHAPTER 43-13 Optometrists

43-13-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Board” means the North Dakota state board of optometry.
  2. “Diagnosis and treatment” means the determination, interpretation, and treatment of any visual, muscular, neurological, or anatomical anomaly of the eye which may be aided, relieved, or corrected through visual training procedures or through the use of lenses, prisms, filters, ophthalmic instruments, pharmaceutical agents, or combinations thereof, held either in contact with the eye, or in frames or mountings, as further authorized by this chapter. Laser therapy and the use of invasive surgery are not permitted under this chapter, except superficial foreign bodies may be removed and primary care procedures may be performed.
  3. “Optometry” means a primary health care profession whose practitioners are engaged in the evaluation of disorders of the human eye and the examination, diagnosis, and treatment thereof, together with its appendages.
  4. “Pharmaceutical agent” means diagnostic pharmaceutical agents or therapeutic pharmaceutical agents. The term includes nonscheduled pharmaceutical agents, except for acetaminophen with thirty milligrams of codeine, that have documented use in the treatment of ocular-related disorders or diseases. As used in this subsection:
    1. “Diagnostic pharmaceutical agents” means pharmaceutical agents administered for the evaluation and diagnosis of disorders of the human eye including anesthetics, mydriatics, myotics, cycloplegics, diagnostic dyes, diagnostic stains, and pharmaceutical agents to evaluate abnormal pupil responses.
    2. “Therapeutic pharmaceutical agents” includes topically administered and prescribed pharmaceutical agents for treatment of ocular-related disorders or disease, locally administered pharmaceutical agents for primary eye care procedures, oral anti-infective agents, oral antihistaminic agents, and oral analgesics for the treatment of ocular-related disorders or diseases.
  5. “Practicing optometry” means:
    1. Displaying a sign or in any way advertising as an optometrist.
    2. Employing any means for the measurement of the powers of vision or the adaptation of lenses for the aid thereof.
    3. Engaging in any manner in the practice of optometry.

Source: S.L. 1903, ch. 130, §§ 1, 2; 1905, ch. 142, §§ 1, 2; R.C. 1905, §§ 324, 325; C.L. 1913, §§ 524, 525; S.L. 1923, ch. 261; 1925 Supp., §§ 524, 525; R.C. 1943, § 43-1301; S.L. 1955, ch. 284, § 1; 1957 Supp., § 43-1301; S.L. 1979, ch. 465, § 2; 1987, ch. 517, § 1; 1997, ch. 370, § 1; 2009, ch. 364, § 1.

Cross-References.

Optometrists need not have physician’s license, see N.D.C.C. § 43-17-02.

Collateral References.

What constitutes practice of “optometry” 82 A.L.R.4th 816.

Medical malpractice: when limitations period begins to run on claim for optometrist’s malpractice, 70 A.L.R.4th 600.

43-13-02. Persons exempt from provisions of chapter.

The provisions of this chapter do not apply to the following persons:

  1. Persons who sell spectacles, eyeglasses, or other articles of merchandise without attempting to practice optometry.
  2. Student interns who are currently enrolled in an optometry school or college accredited by the accreditation council on optometric education of the American optometric association, or its successor agency, or who have graduated no more than three months prior, and are under the immediate and direct supervision of a licensed optometrist.
  3. Physicians and surgeons licensed under chapter 43-17.

Source: S.L. 1903, ch. 130, § 16; 1905, ch. 142, § 7; R.C. 1905, § 339; C.L. 1913, § 539; S.L. 1923, ch. 261; 1925 Supp., § 539; R.C. 1943, § 43-1302; S.L. 1947, ch. 300, § 1; 1957 Supp., § 43-1302; S.L. 1989, ch. 520, § 1; 2007, ch. 362, § 1.

43-13-03. North Dakota state board of optometry — Members — Appointment — Qualifications — Terms of office — Oath — Vacancies.

The North Dakota state board of optometry consists of seven members appointed by the governor for a term of five years each, with their terms of office so arranged that at least one term expires on June thirtieth of each year. Five of the members of the board must be resident licensed optometrists who have an established optometric practice in this state and are engaged in the actual practice of optometry in this state. Each member of the board shall qualify by taking the oath required of civil officers and filing the same with the secretary of the board. A member of the board shall hold office until a successor is appointed and qualified. A vacancy on the board must be filled by appointment by the governor for the remainder of the unexpired term.

Source: S.L. 1903, ch. 130, § 3; R.C. 1905, § 326; C.L. 1913, § 526; S.L. 1923, ch. 261; 1925 Supp., § 526; R.C. 1943, § 43-1303; S.L. 1981, ch. 441, § 1; 1989, ch. 520, § 2.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-13-04. Officers of board — Election — Term of office — Duty of president.

The members of the board shall elect from among their own number a president and a secretary. Such officers shall hold office for the term of one year, and until their successors are elected and qualified. The president of the board shall preside at all meetings of the board and shall sign on behalf of the members all licenses or other instruments issued by the board. Such licenses or instruments must be attested by the secretary.

Source: S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1304; S.L. 1989, ch. 520, § 3.

43-13-05. Secretary of board — Duties — Record — Custodian of fees — Report.

The secretary of the board, or the secretary’s designee, has the following duties:

  1. Keep a full record of the proceedings of the board.
  2. Be custodian of all fees coming into the possession of the board.
  3. At such times as may be required by the board, furnish a complete statement of receipts and disbursements under oath, together with vouchers, receipts, and such other evidence of the receipts and disbursements as may be required by the board.

Source: S.L. 1903, ch. 130, §§ 4, 11; 1905, ch. 142, § 3; R.C. 1905, §§ 327, 334; C.L. 1913, §§ 527, 534; S.L. 1923, ch. 261; 1925 Supp., §§ 527, 532; R.C. 1943, § 43-1305; S.L. 2007, ch. 362, § 2.

43-13-06. Secretary of board — Bond.

The secretary of the board, or the secretary’s designee in the event the duties have been delegated to another, must be bonded for the faithful discharge of duties in such amount as may be prescribed by the board.

Source: S.L. 1903, ch. 130, §§ 4, 11; 1905, ch. 142, § 3; R.C. 1905, §§ 327, 334; C.L. 1913, §§ 527, 534; S.L. 1923, ch. 261; 1925 Supp., §§ 527, 532; R.C. 1943, § 43-1306; S.L. 1975, ch. 258, § 21; 1989, ch. 520, § 4; 2007, ch. 362, § 3.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

43-13-07. Compensation and expenses of board members.

A member of the board shall receive as compensation for each day the member actually is engaged in performing the duties of office a per diem as established by the board, mileage and travel expenses as are provided for in section 54-06-09, and additional allowance for other necessary expenses incurred in attending said meeting not to exceed five dollars per day. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source: S.L. 1903, ch. 130, § 11; R.C. 1905, § 334; C.L. 1913, § 534; S.L. 1923, ch. 261; 1925 Supp., § 530; R.C. 1943, § 43-1307; S.L. 1955, ch. 284, § 2; 1957 Supp., § 43-1307; S.L. 1967, ch. 349, § 1; 1971, ch. 510, § 8; 1981, ch. 441, § 2; 1989, ch. 520, § 5.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-13-08. Secretary of board — Compensation.

The secretary of the board shall receive for clerical expenses and other expenses of the board an allowance, and a salary or other compensation, as the board shall determine.

Source: S.L. 1923, ch. 261; 1925 Supp., § 531; R.C. 1943, § 43-1308; S.L. 1955, ch. 284, § 3; 1957 Supp., § 43-1308; S.L. 1967, ch. 349, § 2; 1981, ch. 441, § 3.

43-13-09. Biennial report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source: S.L. 1903, ch. 130, § 11; R.C. 1905, § 334; C.L. 1913, § 534; S.L. 1923, ch. 261; 1925 Supp., § 534; R.C. 1943, § 43-1309; S.L. 1963, ch. 346, § 41; 1973, ch. 403, § 31; 1975, ch. 466, § 33; 1995, ch. 350, § 32.

43-13-10. Meetings of board — Quorum — What constitutes.

The board shall meet at least once in each year at a place it designates, and in addition thereto whenever and wherever the president and the secretary, for proper cause, call a meeting. Four members of the board in actual attendance at any meeting constitute a quorum for the transaction of business.

Source: S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1310; S.L. 1981, ch. 441, § 4.

43-13-11. Records of board.

The record of the proceedings of the board kept by the secretary, or the secretary’s designee, at all reasonable times must be open to public inspection. The record also must contain a registry list of all persons licensed by the board, together with renewals and revocations of licenses. The record constitutes the official registry of all persons licensed to practice optometry in this state.

Source: S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1311; S.L. 1989, ch. 520, § 6; 2007, ch. 362, § 4.

43-13-12. Records of board as evidence.

A true copy of all records of the board, or any part thereof, is admissible in evidence without further proof of authenticity when accompanied by the certificate of the secretary of the board that the same is a true copy of the original record on file in the office of the secretary of the board.

Source: S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1312; S.L. 1989, ch. 520, § 7.

Cross-References.

Admissibility of public records, see N.D.R.Ev. 1005.

43-13-13. Duties of board.

The board has the following duties:

  1. To enforce the provisions and carry out the purposes of this chapter.
  2. To make and enforce such rules and regulations consistent with law as may be necessary for the proper performance of its duties; the effective enforcement of this chapter; the reasonable regulation of the profession of optometry and the practice thereof by persons licensed under this chapter; and to protect the health, welfare, and safety of the citizens of this state.
  3. To proceed in the courts of this state by injunction when considered necessary to restrain any violation of this chapter.

Source: S.L. 1903, ch. 130, §§ 3, 4; 1905, ch. 142, § 3; R.C. 1905, §§ 326, 327; C.L. 1913, §§ 526, 527; S.L. 1923, ch. 261; 1925 Supp., §§ 526, 527; R.C. 1943, § 43-1313; S.L. 1947, ch. 300, § 2; 1957 Supp., § 43-1313; S.L. 1989, ch. 520, § 8.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

43-13-13.1. Board may authorize use of ocular diagnostic pharmaceutical agents — Training required for certification — Board may adopt rules. [Repealed]

Repealed by S.L. 1987, ch. 517, § 3.

43-13-13.2. Practice of optometry — Certification requirements — Notification.

  1. Any person engaged in visual training procedures or who employs or prescribes lenses, prisms, filters, ophthalmic instruments, or combinations thereof, held either in contact with the eye, or in frames or mounting, to aid, relieve, or correct any visual or ocular anomaly, or holds out as being able to do so, is deemed to be engaged in the practice of optometry.
  2. Before any optometrist may prescribe and administer pharmaceutical agents in the treatment and management of ocular diseases, the optometrist must first be certified or qualify for certification in the use of diagnostic pharmaceutical agents. For additional certification to prescribe and administer pharmaceutical agents in the treatment and management of ocular disease, the board shall require at least seventy-six hours of didactic instruction and twenty-four hours of clinical application of pharmaceutical agents for the treatment and management of ocular diseases. The course for therapeutic certification must be provided by an institution accredited by a regional or professional accrediting organization that is recognized and approved by the United States department of education or the council on postsecondary accreditation.
  3. An optometrist may not dispense therapeutic pharmaceutical agents, except an optometrist may:
    1. Provide a patient a drug sample at no cost to the patient; or
    2. Sell contact lenses or ophthalmic devices that are classified by the federal food and drug administration as a drug.
  4. The board shall provide the board of pharmacy upon request a list of licensed optometrists certified in the use of pharmaceutical agents.

Source: S.L. 1987, ch. 517, § 2; 2007, ch. 362, § 5; 2009, ch. 364, § 2.

43-13-13.3. Standard of care — When consultation with physician required.

  1. An optometrist certified by the board in the use of pharmaceutical agents as provided in this chapter must be held to the same standard of care in the use of such agents as are physicians licensed by the North Dakota board of medicine.
  2. Any optometrist authorized by the board to use pharmaceutical agents shall consult with a physician duly licensed to practice medicine when any diseased or pathological conditions of the eye do not respond to treatment. The consultation must be documented in the patient’s record.

Source: S.L. 1987, ch. 517, § 2; 1997, ch. 370, § 2; 2001, ch. 374, § 1; 2015, ch. 297, § 14, effective August 1, 2015.

43-13-14. Members of board to administer oaths — Seal of board.

Any member of the board, upon being duly designated by the board, or a majority thereof, may administer oaths or take testimony concerning any matter within the jurisdiction of the board. The board may adopt a seal.

Source: S.L. 1903, ch. 130, § 4; 1905, ch. 142, § 3; R.C. 1905, § 327; C.L. 1913, § 527; S.L. 1923, ch. 261; 1925 Supp., § 527; R.C. 1943, § 43-1314.

43-13-15. Unlawful to practice without license — Sale of glasses — Regulations.

No person may practice optometry in this state unless the person first obtains a license and complies with the requirements of this chapter. Eyeglasses, spectacles, and lenses may be vended as merchandise only:

  1. To dealers.
  2. From permanently located and established places of business in this state.

Any licensed optometrist, however, may fit and vend eyeglasses, spectacles, and lenses at any place in this state. Notwithstanding any other provision of law, it is unlawful for any person, or any entity other than a licensed optometrist or a licensed physician to dispense, fit, or prescribe to the public contact lenses, or any medical appliance having direct contact with the cornea of the eye.

Source: S.L. 1903, ch. 130, § 2; 1905, ch. 142, § 2; R.C. 1905, § 325; C.L. 1913, § 525; S.L. 1923, ch. 261; 1925 Supp., § 525; R.C. 1943, § 43-1315; S.L. 1989, ch. 520, § 9.

Collateral References.

Validity of governmental regulation of optometry, 22 A.L.R.2d 939.

Practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts without license as a separate or continuing offense, 99 A.L.R.2d 654.

Contact lenses: fitting of contact lenses as practice of optometry, 77 A.L.R.3d 817.

43-13-16. Examination required — When given.

Before any person is granted a license to practice optometry in this state, the person must pass an examination required by the board. The examination may be conducted at such times and places as are prescribed by the board.

Source: S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1316; S.L. 1981, ch. 441, § 5; 1989, ch. 520, § 10; S.L. 1993, ch. 421, § 1.

43-13-17. Application for licensure — Contents — Educational requirements — Fee.

Any person desiring to take the examination for or to secure a license to practice optometry in this state shall file with the secretary of the board a written application in the form prescribed by the board. An application for admission by examination must be filed at least fifteen days before the date of the examination. The applicant also shall furnish satisfactory proof that the applicant:

  1. Is at least eighteen years of age;
  2. Is a person of good moral character; and
  3. Is a graduate of an optometry school or college accredited by the council on optometric education.

The applicant shall pay to the secretary of the board a registration fee of a reasonable sum fixed by the board.

Source: S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1317; S.L. 1955, ch. 284, § 4; 1957, ch. 299, § 1; 1957 Supp., § 43-1317; S.L. 1967, ch. 349, § 3; 1973, ch. 120, § 45; 1985, ch. 478, § 1; 1989, ch. 520, § 11; 1993, ch. 421, § 2; 1999, ch. 377, § 1.

43-13-18. Licensure by endorsement.

An applicant may secure a license to practice optometry in this state without taking all required examinations as follows:

  1. Presentation of a certified copy or an original certificate of registration or license in good standing issued to the applicant by another state where the requirements for license are equivalent to those of this state;
  2. Payment of a reasonable sum fixed by the board; and
  3. Unless waived by the board, all applicants for licensure by endorsement must:
    1. Apply for the highest level of therapeutic licensure in this state.
    2. Be current in the continuing education requirements of their current state of licensure.
    3. Pass a North Dakota state optometry law examination as required by the board to be given at such times and places as are prescribed by the board.
    4. Have a minimum of four years of practice, federal service, or teaching experience as a licensed optometrist prior to making application.
    5. Have not committed any act that would constitute grounds for disciplinary action under this chapter or the rules and regulations of the board.
    6. Submit to an oral interview before such persons and at a time and place as prescribed by the board.

The board may give or require a practical examination of the applicant if it is deemed necessary.

Source: S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1318; S.L. 1989, ch. 520, § 12; S.L. 1993, ch. 421, § 3; 1999, ch. 377, § 2.

43-13-19. License — When issued — Fee.

Every applicant for a license to practice optometry in this state who meets the standards required for licensure, including successfully passing the required examination, must be licensed upon payment to the secretary of the board of a reasonable sum fixed by the board.

Source: S.L. 1903, ch. 130, § 5; 1905, ch. 142, § 4; R.C. 1905, § 328; C.L. 1913, § 528; S.L. 1923, ch. 261; 1925 Supp., § 528; R.C. 1943, § 43-1319; S.L. 1967, ch. 349, § 4; 1989, ch. 520, § 13; 1993, ch. 421, § 4; 2019, ch. 349, § 1, effective July 1, 2019.

43-13-20. Term of license — Renewal — Annual license fee — Continuing educational requirements.

A license to practice optometry in the state may be issued for one year only. A license may be renewed by submitting to the board, during December of each year, the license fee for the following year and satisfactory proof the licensee has met all continuing education conditions set by the board. The license fee for each year must be determined annually by the board and be a reasonable sum. This section does not require an applicant to become a member of the North Dakota optometric association or any other association of optometrists.

Source: S.L. 1903, ch. 130, § 12; R.C. 1905, § 335; C.L. 1913, § 535; S.L. 1923, ch. 261; 1925 Supp., § 535; R.C. 1943, § 43-1320; S.L. 1955, ch. 284, § 5; 1957 Supp., § 43-1320; S.L. 1967, ch. 349, § 5; 1971, ch. 435, § 1; 1985, ch. 478, § 2; 1989, ch. 520, § 14; 1993, ch. 421, § 5; 2007, ch. 362, § 6; 2019, ch. 349, § 2, effective July 1, 2019.

43-13-21. License to be displayed.

Every person to whom a license to practice optometry in this state is issued shall display the same in a conspicuous place in the office where the practice of optometry is conducted.

Source: S.L. 1903, ch. 130, § 10; R.C. 1905, § 333; C.L. 1913, § 533; S.L. 1923, ch. 261; 1925 Supp., § 533; R.C. 1943, § 43-1321; 1989, ch. 520, § 15.

43-13-21.1. Disciplinary powers of the board.

  1. The board may conduct investigations for the purpose of determining whether violations of this chapter or grounds for disciplining licensees exist. The board may establish an investigative panel to conduct an investigation under this section and may subpoena records.
  2. A complaint, response, and any record received by the board during the course of the board’s investigation into a complaint are exempt records, as defined in section 44-04-17.1, until the board concludes whether to pursue disciplinary action.
  3. In addition to any other disciplinary actions available to the board, the board may take one or more of the following actions against an optometrist who violates the provisions of this chapter or the board’s rules:
    1. Letters of concern.
    2. Letters of censure.
    3. Reprimands.
    4. Fines, including costs and attorney’s fees.
    5. Stipulations, limitations, and conditions relating to practice such as additional education and counseling.
    6. Probation.
    7. Suspension of the license.
    8. Revocation of the license.
  4. The board may require a licensee to be examined on optometric knowledge and skills, if the board has just cause to believe the licensee may be so deficient in knowledge and skills as to jeopardize the health, welfare, and safety of the citizens of this state.
  5. The board may require a physical or mental evaluation as provided in section 43-13-26.1 if it has reason to believe the licensee’s physical or mental condition may adversely affect the public welfare.
  6. Disciplinary action must occur through an administrative hearing conducted in accordance with chapter 28-32.

Source: S.L. 1989, ch. 520, § 21; 2019, ch. 349, § 3, effective July 1, 2019.

43-13-22. License — When revoked.

  1. After an administrative hearing conducted in accordance with chapter 28-32, the board may restrict, revoke, or suspend any license granted by it under this chapter when the board determines the holder of the license:
    1. Has violated any provisions of this chapter, the rules and regulations of the board, or committed an offense determined by the board to have a direct bearing upon a holder’s ability to serve the public as an optometrist, or when the board determines, following conviction of a holder for any other offense, that the holder is not sufficiently rehabilitated under section 12.1-33-02.1;
    2. Has sold or distributed any drug legally classified as a controlled substance or as an addictive or dangerous drug;
    3. Has been addicted to the excessive use of intoxicating liquor or a controlled substance for at least six months immediately prior to the filing of the charges;
    4. Is afflicted with any contagious or infectious disease;
    5. Is grossly incompetent to discharge the holder’s duties in connection with the practice of optometry;
    6. Has employed fraud, deceit, misrepresentation, or fraudulent advertising in the practice of optometry; or
    7. Is engaged in the practice of optometry by being directly or indirectly employed by any person other than a licensed optometrist, a physician licensed under chapter 43-17, a hospital, or a clinic operated by licensed optometrists or by licensed physicians.
  2. Any person whose license has been revoked or suspended may have the same reinstated upon satisfactory proof that the disqualification has ceased or that the disability has been removed and upon such conditions as established by the board.

Source: S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1322; S.L. 1947, ch. 300, § 3; 1957 Supp., § 43-1322; S.L. 1977, ch. 130, § 28; 1989, ch. 520, § 16; 1993, ch. 421, § 6; 1997, ch. 370, § 3; 2007, ch. 362, § 7; 2019, ch. 349, § 4, effective July 1, 2019.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Disqualification, for bias or interest, of member of occupation or profession sitting in license revocation proceeding, 97 A.L.R.2d 1210.

Malicious prosecution predicated upon prosecution, institution or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

43-13-23. Revocation of license — Notice. [Repealed]

Source: S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1323; S.L. 1989, ch. 520, § 17; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-24. Revocation of license — Hearing — Procedure — Witnesses — Expenses. [Repealed]

Source: S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1324; S.L. 1989, ch. 520, § 18; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-25. Determination of board constitutes revocation of license. [Repealed]

Source: S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1325; 1989, ch. 520, § 19; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-26. Revocation of license — Appeal. [Repealed]

Source: S.L. 1903, ch. 130, § 13; 1905, ch. 142, § 6; R.C. 1905, § 336; C.L. 1913, § 536; S.L. 1923, ch. 261; 1925 Supp., § 536; R.C. 1943, § 43-1326; S.L. 1989, ch. 520, § 20; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

43-13-26.1. Impaired optometrists.

After a hearing conducted pursuant to chapter 28-32, the board may restrict, suspend, or revoke the license of any licensed optometrist whose mental or physical ability to practice optometry with reasonable skill and safety is impaired.

  1. For the purpose of this section, “impairment” means the inability of a licensee to practice optometry with reasonable skill and safety by reason of:
    1. Mental illness; or
    2. Physical illness, including physical deterioration that adversely affects cognitive, motor, or perceptive skills.
  2. The board may, upon probable cause, require a licensee or applicant to submit to a mental or physical examination by appropriate health care providers designated by the board. The results of the examination are admissible in any hearing, despite any claim of privilege under any contrary rule or statute. Every person who receives a license to practice optometry or who files an application for a license to practice optometry is deemed to have given consent to submit to the admissibility of the results in any hearing. If a licensee or applicant fails to submit to an examination when properly directed to do so by the board, unless the failure was due to circumstances deemed to be beyond the licensee’s control, the board may enter a final disciplinary order upon proper notice, hearing, and proof of such refusal.
  3. If the board finds, after examination and administrative hearing, that a licensee is impaired, it may take one or more of the following actions:
    1. Direct the licensee to submit to care, counseling, or treatment acceptable to the board; and
    2. Suspend, limit, or restrict the optometrist’s license for the duration of the impairment.
  4. Any licensee or applicant who is prohibited from practicing optometry under this section must be afforded an opportunity, at reasonable intervals, to demonstrate to the satisfaction of the board that the licensee or applicant can resume or begin the practice of optometry with reasonable skill and safety. Licensure may not be reinstated without the payment of the current license fee and may be subject to such reasonable restrictions as may be imposed by the board.

Source: S.L. 1989, ch. 520, § 22; 2019, ch. 349, § 5, effective July 1, 2019.

43-13-27. Penalty.

Any person who violates any provision of this chapter is guilty of a class B misdemeanor.

Source: S.L. 1903, ch. 130, § 14; R.C. 1905, § 337; C.L. 1913, § 537; S.L. 1923, ch. 261; 1925 Supp., § 537; R.C. 1943, § 43-1327; S.L. 1975, ch. 106, § 479.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Separate or continuing offense, practicing medicine, surgery, dentistry, optometry, podiatry or other healing arts without license as, 99 A.L.R.2d 654.

43-13-28. Prohibitions.

It is unlawful for any person who is not the holder of a license to practice optometry, to engage in the practice of optometry, directly or indirectly, by employing or hiring upon a salary, commission, or other profit-sharing arrangement a licensed optometrist except as permitted by the rules and regulations of the board. The provisions of this section do not apply to a physician licensed under chapter 43-17, a hospital, or a clinic operated by licensed optometrists or by licensed physicians.

Source: S.L. 1947, ch. 300, § 4; R.C. 1943, § 43-1328; 1957 Supp., § 43-1328; S.L. 1989, ch. 520, § 23; S.L. 1993, ch. 54, § 106; 2007, ch. 362, § 8.

Cross-References.

Nonprofit corporations, see N.D.C.C. ch. 10-33.

Professional corporations, see N.D.C.C. ch. 10-31.

43-13-29. Prohibiting solicitation of sale of optical appliances and visual services by means of advertisement or otherwise. [Repealed]

Repealed by S.L. 1981, ch. 435, § 26.

43-13-30. Reports and testimony accepted — Nondiscrimination and freedom of choice of ocular practitioner.

The testimony and reports of an optometrist licensed to practice in this state must be received by any state, county, municipality, school district, or other public board, body, agency, institution, or official and by any private educational or other institution receiving public funds as qualified evidence with respect to any matter within the scope of the practice of optometry as defined in section 43-13-01; and no such board, body, agency, official, or institution may, in retaining and utilizing the professional services of ocular practitioners, discriminate between licensed practitioners of optometry and physicians or interfere with any individual’s right to free choice of ocular practitioner, when such professional services are within the scope of section 43-13-01. Nothing herein in any manner restricts the authority of any such board, body, agency, official, or institution from utilizing the services of a physician for examinations of the eyes or treatment of diseases of the eyes.

Section 43-13-13 applies in actions to correct any violations of this section.

Source: S.L. 1967, ch. 350, § 1.

43-13-31. Discrimination in optometric services prohibited.

A person may not discriminate between licensed practitioners of optometry and physicians, or interfere with any individual’s right to free choice of ocular practitioner, with respect to the providing of professional services within the scope of section 43-13-01. If a health, accident or disability policy or insurance contract, or any other type of benefit or safety program specifically provides for the payment of optometric services within the scope of section 43-13-01, the payment must be made regardless of whether the service is performed by a physician or optometrist.

Source: S.L. 1979, ch. 466, § 1; 1983, ch. 319, § 31; 1985, ch. 317, § 76; 1989, ch. 520, § 24.

43-13-32. Board immunity and privileged communications. [Repealed]

Source: S.L. 1989, ch. 520, § 25; repealed by 2019, ch. 349, § 6, effective July 1, 2019.

CHAPTER 43-14 Osteopaths [Repealed]

[Repealed by S.L. 1969, ch. 395, § 8]

CHAPTER 43-15 Pharmacists

43-15-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Administration” means the direct application of a drug to the body of a patient. The term includes:
    1. The emergency maintenance of a drug delivery device used in home infusion therapy by a qualified home pharmacist if nursing service is not available;
    2. Immunization and vaccination by injection of an individual who is at least three years of age upon an order by a practitioner authorized to prescribe such a drug or by written protocol with a physician or nurse practitioner and subsequently reported as a childhood immunization and other information if required to the state’s immunization information system pursuant to section 23-01-05.3;
    3. Provision of other drugs to an individual who is at least three years of age upon the order of a practitioner authorized to prescribe such a drug; and
    4. Provision of drugs to an individual receiving emergency services in a health care facility upon an order or by established written protocol.
  2. “Automated dispensing system” means a mechanical system that performs operations or activities, other than compounding or administration, relative to the storage, packaging, counting, labeling, and dispensing of medications and which collects, controls, and monitors all transaction information.
  3. “Board” means the state board of pharmacy.
  4. “Compounding” means the preparation, mixing, assembling, packaging, or labeling of a drug or device:
    1. As the result of a practitioner’s prescription drug order or initiative based on the practitioner, patient, and pharmacist relationship in the course of professional practice; or
    2. For the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale or dispensing.
  5. “Confidential information” means individually identifiable health information maintained by the pharmacist in the patient’s records or which is communicated to the patient as part of a patient counseling.
  6. “Deliver” or “delivery” means the actual, constructive, or attempted transfer of a drug or device from one person to another, whether or not for a consideration.
  7. “Device” means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component part or accessory, which is required under federal or North Dakota law to be prescribed by a practitioner and dispensed by a pharmacist.
  8. “Dispense” or “dispensing” means the preparation and delivery of a prescription drug, pursuant to a lawful order of a practitioner or a nurse licensed under chapter 43-12.1 who is authorized by the practitioner to orally transmit the order that has been reduced to writing in the patient’s record, in a suitable container appropriately labeled for subsequent administration to or use by a patient or other individual entitled to receive the prescription drug.
  9. “Distribute” means the delivery of a drug other than by dispensing or administering.
  10. “Drug” or “drugs” means:
    1. Articles recognized as drugs in the official United States pharmacopeia, official national formulary, official homeopathic pharmacopeia, other drug compendium, or any supplement to any of them;
    2. Articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animal;
    3. Articles other than food intended to affect the structure or any function of the body of man or other animals; and
    4. Articles intended for use as a component of any articles specified in subdivision a, b, or c.
  11. “Drug regimen review” includes the following activities:
    1. Evaluation of the prescription drug orders and patient records for:
      1. Known allergies;
      2. Rational therapy-contraindications;
      3. Reasonable dose and route of administration; and
      4. Reasonable directions for use.
    2. Evaluation of the prescription drug orders and patient records for duplication of therapy.
    3. Evaluation of the prescription drug orders and patient records for interactions:
      1. Drug-drug;
      2. Drug-food;
      3. Drug-disease; and
      4. Adverse drug reactions.
    4. Evaluation of the prescription drug orders and patient records for proper utilization, including overutilization or underutilization, and optimum therapeutic outcomes.
  12. “Emergency pharmacy practice” means in the event a pharmacist receives a request for a prescription refill and the pharmacist is unable to obtain refill authorization from the prescriber, the pharmacist may dispense and bill using a pharmacist national provider identifier a one-time emergency refill of up to a thirty-day supply of the prescribed medication, provided that:
    1. The prescription is not for a controlled substance listed in schedule II;
    2. The pharmaceutical is essential to the maintenance of life or to the continuation of therapy;
    3. In the pharmacist’s professional judgment, the interruption of therapy might reasonably produce undesirable health consequences or may cause physical or mental discomfort;
    4. The pharmacist properly records the dispensing; and
    5. The dispensing pharmacist notifies the prescriber of the emergency dispensing within a reasonable time after the one-time emergency refill dispensing.
  13. “Labeling” means the process of preparing and affixing of a label to any drug container exclusive, however, of the labeling by a manufacturer, packer, or distributor of a nonprescription drug or commercially packaged legend drug or device. Any label shall include all information required by federal and North Dakota law or regulation.
  14. “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a device or a drug, either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substances or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a drug by an individual for the individual’s own use or the preparation, compounding, packaging, or labeling of a drug:
    1. By a pharmacist or practitioner as an incident to dispensing or administering of a drug in the course of the person’s professional practice; or
    2. By a practitioner or by the practitioner’s authorization under supervision for the purpose of or as an incident to research, teaching, or chemical analysis and not for sale.
  15. “Manufacturer” means a person engaged in the manufacture of drugs in facilities located within North Dakota.
  16. “Medicine” means a drug or combination of drugs, used in treating disease in man or other animals.
  17. “Nonprescription drugs” means medicines or drugs which may be sold without a prescription and which are prepackaged for use by the consumer and labeled in accordance with the requirements of the statutes and regulations of this state and the federal government.
  18. “Original package” means the original carton, case, can, box, vial, bottle, or other receptacle, put up by the manufacturer or wholesaler or distributor, with label attached, making one complete package of the drug article.
  19. “Person” means an individual, corporation, limited liability company, partnership, association, or any other legal entity.
  20. “Pharmaceutical care” is the provision of drug therapy and other pharmaceutical patient care services intended to achieve outcomes related to the cure or prevention of a disease, elimination or reduction of a patient’s symptoms, or arresting or slowing of a disease process as defined in the rules of the board.
  21. “Pharmacist” means a person to whom the board has issued a license to practice the profession of pharmacy whose license has not expired or been suspended.
  22. “Pharmacy” or “drugstore” means every store or shop where drugs, medicines, or chemicals are dispensed, displayed for sale, or sold, at retail for medicinal purposes, or where prescriptions are compounded, and which is duly registered by the board.
  23. “Pharmacy technician” means a person registered by the board who is employed by a pharmacy to assist licensed pharmacists in the practice of pharmacy by performing specific tasks delegated by and under the immediate personal supervision and control of a licensed pharmacist, as permitted by the board.
  24. “Practice of pharmacy” means the interpretation, evaluation, and monitoring of prescription orders and patient drug therapy; the compounding, dispensing, labeling of drugs and devices except labeling by a manufacturer, packer, or distributor of nonprescription drugs and commercially packaged legend drugs and devices; the participation in drug selection, drug monitoring, drug administration, drug regimen review, the provision of these acts or services necessary as a primary health care provider of pharmaceutical care, and drug utilization evaluations; the proper and safe storage of drugs and devices and the maintenance of proper records for this storage; the responsibility for advising, consulting, and educating if necessary or if regulated, patients, public, and other health care providers on the rational, safe, and cost-effective use of drugs including therapeutic values, content, hazards, and appropriate use of drugs and devices; the participation in interpreting and applying pharmacokinetic data and other pertinent laboratory data to design safe and effective drug dosage regimens; if appropriate and if regulated, the participation in drug research either scientific or clinical as investigator or in collaboration with other investigators for the purposes of studying the effects of drugs on animals or human subjects, with other drugs or chemicals, and with drug delivery devices; emergency pharmacy practice; prescriptive practices as limited under this chapter; the performance of laboratory tests to provide pharmaceutical care services which are waived under the Federal Clinical Laboratory Improvement Act of 1988 [Pub. L. 100-578, section 2; 102 Stat. 2903; 42 U.S.C. 263 a et seq.], as amended; and the offering or performing of those acts, services, operations, or transactions necessary in the conduct, operation, management, and control of pharmacy.
  25. “Practitioner” means an individual licensed, registered, or otherwise authorized by the jurisdiction in which the individual is practicing to prescribe drugs in the course of professional practice.
  26. “Prescription” means any order for drugs or medical supplies, if such order is written or signed or transmitted by word of mouth, telephone, telegram, or other means of communication by a duly licensed physician, optometrist, dentist, veterinarian, or other practitioner, licensed by law to prescribe and administer such drugs or medical supplies intended to be filled, compounded, or dispensed by a pharmacist or any order for drugs or medical supplies transmitted orally by a nurse licensed under chapter 43-12.1 as written and signed by such a duly licensed physician, optometrist, dentist, veterinarian, or other practitioner.
  27. “Prescription drug or legend drug” means a drug which, under federal law is required, prior to being dispensed or delivered, to be labeled with one of the following:
    1. “Caution: Federal law prohibits dispensing without prescription”;
    2. “Caution: Federal law restricts this drug to use by or on the order of a licensed veterinarian”; or
    3. Rx only;
  28. “Public health issues” include immunizations, tobacco cessation, and other issues deemed appropriate by the board.
  29. “Radiopharmaceutical service” means, but is not limited to, the compounding, dispensing, labeling, and delivery of radiopharmaceuticals; the participation in radiopharmaceutical selection and radiopharmaceutical utilization reviews; the proper and safe storage and distribution of radiopharmaceuticals; the maintenance of radiopharmaceutical quality assurance; the responsibility for advising, where necessary or where regulated, of therapeutic values, hazards, and use of radiopharmaceuticals; and the offering or performing of those acts, services, operations, or transactions necessary in the conduct, operation, management, and control of radiopharmaceuticals.
  30. “Wholesaler” means a person with facilities located in this state who buys for resale and distribution to persons other than consumers.

Compounding also includes the preparation of drugs or devices in anticipation of prescription drug orders based on routine, regularly observed prescribing patterns.

or a drug which is required by any applicable federal or North Dakota law or rule to be dispensed on prescription only or is restricted to use by practitioners only.

Source: S.L. 1907, ch. 182, § 2; C.L. 1913, § 476; S.L. 1927, ch. 211, § 1; R.C. 1943, § 43-1501; S.L. 1959, ch. 322, § 1; 1979, ch. 187, § 86; 1979, ch. 465, § 3; 1981, ch. 443, § 1; 1991, ch. 456, § 1; 1991, ch. 457, § 1; 1993, ch. 54, § 106; 1993, ch. 422, §§ 1, 2; 1993, ch. 423, §§ 1, 2; 1995, ch. 405, § 1; 1995, ch. 406, § 1; 1997, ch. 371, § 1; 1999, ch. 378, § 1; 1999, ch. 379, § 4; 2001, ch. 213, § 8; 2001, ch. 375, § 1; 2003, ch. 211, § 21; 2007, ch. 363, § 1; 2011, ch. 310, § 1; 2019, ch. 350, § 1, effective August 1, 2019; 2021, ch. 312, § 1, effective March 23, 2021.

Notes to Decisions

Pharmacy.

State board of pharmacy has not issued different types of permits for different categories of pharmacy practice, or limited pharmacies to either a “hospital” or a “retail” operation. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

Collateral References.

Druggist’s civil liability for injuries sustained as result of negligence in incorrectly filling drug prescriptions, 3 A.L.R.4th 270.

Criminal liability of pharmacy or pharmacist for welfare fraud in connection with supplying prescription drugs, 16 A.L.R.5th 390.

Liability of pharmacist who accurately fills prescription for harm resulting to user, 44 A.L.R.5th 393.

Exemplary or Punitive Damages for Pharmacist’s Wrongful Conduct in Preparing or Dispensing Medical Prescription -- Cases Not Under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.

43-15-02. Exemptions.

The provisions of this chapter shall not apply to the following:

  1. A duly licensed practitioner of medicine supplying the practitioner’s own patients with such remedies as the practitioner may desire.
  2. The exclusive wholesale business of any dealer.
  3. The keeping for sale and sale by general dealers of proprietary medicines in original packages and such simple household remedies as from time to time may be approved for such sale by the board.
  4. Registered or copyrighted proprietary medicines.
  5. The manufacture of proprietary remedies or the sale of the same in original packages by other than pharmacists.
  6. A veterinary dispensing technician operating within a veterinary retail facility.
  7. An individual licensed as a registered nurse under chapter 43-12.1, in the course of dispensing oral contraceptive pills, transdermal contraceptive patches, and vaginal contraceptive rings, pursuant to an order of an authorized prescriber, in the course of working in a Title X clinic.

Source: S.L. 1907, ch. 182, § 25; C.L. 1913, § 499; S.L. 1931, ch. 212, § 1; R.C. 1943, § 43-1502; S.L. 1959, ch. 322, § 2; 2011, ch. 311, § 1; 2019, ch. 351, § 1, effective March 21, 2019.

Notes to Decisions

Sale of Patent Medicine.

The sale in good faith by a storekeeper of patent medicine containing alcohol is not unlawful, if sold as medicine. State v. Williams, 14 N.D. 411, 104 N.W. 546, 1905 N.D. LEXIS 64 (N.D. 1905).

43-15-03. Board of pharmacy — Appointment.

The state board of pharmacy consists of seven members appointed by the governor. Five members of the board must be licensed pharmacists, one member must be a registered pharmacy technician, and one member must represent the public and may not be affiliated with any group or profession that provides or regulates any type of health care.

Source: S.L. 1890, ch. 108, § 4; R.C. 1895, § 284; R.C. 1899, § 284; R.C. 1905, § 303; S.L. 1907, ch. 182, § 3; C.L. 1913, § 477; R.C. 1943, § 43-1503; S.L. 1993, ch. 422, § 3; 2009, ch. 365, § 1.

Notes to Decisions

Appointment of Member.

The governor is not authorized to appoint a member of the pharmacy board to succeed a member whose term expires, except on the recommendation of the state pharmaceutical association. Rosoff v. Haussamen, 59 N.D. 154, 228 N.W. 830, 1930 N.D. LEXIS 130 (N.D. 1930).

43-15-04. State board of pharmacy — Term of office — Vacancies.

The members of the board must be appointed for terms of five years each, with the terms of office so arranged that one term only expires on the eighth day of May of each year. Each member of the board shall qualify by taking the oath required of civil officers and shall hold office until a successor is appointed and qualified. The governor shall fill any vacancy by appointment for the unexpired term.

Source: S.L. 1890, ch. 108, § 4; R.C. 1895, § 284; R.C. 1899, § 284; R.C. 1905, § 303; S.L. 1907, ch. 182, §§ 3, 4; C.L. 1913, §§ 477, 478; R.C. 1943, § 43-1504.

Cross-References.

Oath of civil officers, see N.D.C.C. § 44-01-05.

43-15-05. Compensation of board — Disposition of fees.

Each member of the board shall receive a per diem of two hundred dollars for attendance at board meetings, and all actual and necessary expenses incurred in attending such meetings and in performing other official duties. The mileage and travel expense allowed may not exceed the amount provided for in section 54-06-09. All funds collected or received by the board must be deposited and disbursed in accordance with section 54-44-12.

Source: S.L. 1890, ch. 108, § 11; 1893, ch. 80, § 5; R.C. 1895, § 290; R.C. 1899, § 290; R.C. 1905, § 311; S.L. 1907, ch. 182, § 19; C.L. 1913, § 493; S.L. 1927, ch. 211, § 6; R.C. 1943, § 43-1505; S.L. 1959, ch. 322, § 2; 1971, ch. 510, § 9; 2007, ch. 363, § 2.

Cross-References.

Advances for travel expenses, see N.D.C.C. § 44-08-04.2.

Claims for travel expenses, see N.D.C.C. § 44-08-04.

Limitation on claims for travel expenses, see N.D.C.C. § 44-08-03.

Per diem allowance for long-term travel, see N.D.C.C. § 44-08-04.1.

43-15-06. Organization of board.

  1. At the first regular meeting of the board after the appointment and qualification of a new member for a full term, the board shall elect a president, a secretary, and a treasurer. The president must be chosen from the membership of the board, but any suitable person, whether a member of the board or not, may be chosen for the other offices. In case of the death, removal, resignation, absence, or refusal or inability to act of the president of the board, the senior member present shall act as president. In case of the death, removal, resignation, absence, or refusal or inability to act of the secretary or treasurer, the board may choose another person to act temporarily or for the remainder of the year. The president of the board of pharmacy shall preside at all meetings of the board and is responsible for the performance of all of the duties and functions of the board required or permitted by this chapter. Each additional officer elected by the board shall perform those duties normally associated with the officer’s position and such other duties assigned from time to time by the board.
  2. The board shall employ a pharmacist to serve as a full-time employee of the board in the position of executive director. The executive director is responsible for the performance of the administrative functions of the board and such other duties as the board may direct. The executive director may also serve as secretary and treasurer of the board.
  3. The executive director is authorized to sign on behalf of the board notices, complaints, statement of charges, stipulations, settlement agreements, findings of fact, conclusions of law, orders and decisions of the board without additional signatures of the president of the board or board members.

Source: S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, § 5; C.L. 1913, § 479; R.C. 1943, § 43-1506; S.L. 1959, ch. 322, § 4; 1993, ch. 422, § 4.

43-15-07. Officers of board — Bond — Duties — Compensation.

The secretary and treasurer of the board each must be bonded for the faithful discharge of their duties in the penal sum of not less than two thousand dollars. The president, secretary, and treasurer of the board shall perform such duties as the board may prescribe. Officers of the board may be allowed, in addition to their compensation as members of the board, such compensation as four-fifths of the members of the board agree upon.

Source: S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, § 5; C.L. 1913, § 479; R.C. 1943, § 43-1507; S.L. 1975, ch. 258, § 22.

Cross-References.

Bonding of civil officers, see N.D.C.C. §§ 44-01-11, 44-01-12, and 44-01-14 and N.D.C.C. ch. 26.1-21.

43-15-08. Oaths — President may administer.

The president of the board may administer oaths to applicants for registration and to any witness in hearings, investigations, or proceedings pending before the board.

Source: S.L. 1907, ch. 182, § 6, subs. f; C.L. 1913, § 480, subs. f; R.C. 1943, § 43-1508.

43-15-09. Meetings — When held — Notice — Quorum.

The board shall hold at least two and not more than four meetings in each calendar year for the examination of applicants for licensure. The board may hold such other meetings as may be necessary for the performance of its duties. A special meeting must be held at such time and place as a majority of the members agree upon, or may be called by the secretary, at the request of the president or any two members, by giving such notice to the members as the board may prescribe by its rules and regulations. A majority of the board constitutes a quorum for the transaction of business.

Source: S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, §§ 5, 6; C.L. 1913, §§ 479, 480; R.C. 1943, § 43-1509; S.L. 1959, ch. 322, § 5; 1993, ch. 422, § 5.

43-15-10. Powers of board. [Effective through August 31, 2022]

In addition to other powers provided by law, the board shall have the following powers and duties, which shall be exercised in conformity with chapter 28-32 in order to protect the public health, welfare, and safety:

  1. To place on probation, reprimand, or fine any pharmacy, pharmacist, or pharmacy intern or pharmacy technician; or refuse to issue or renew, or suspend, revoke, restrict, or cancel, the license, permit, or registration of any pharmacy, pharmacist, or pharmacy intern or pharmacy technician, if any of the following grounds apply and the pharmacy, pharmacist, or pharmacy intern or pharmacy technician:
    1. Is addicted to any alcohol or drug habit.
    2. Uses any advertising statements of a character tending to deceive or mislead the public.
    3. Is subject to drug or alcohol dependency or abuse.
    4. Permits or engages in the unauthorized sale of narcotic drugs or controlled substances.
    5. Permits or engages an unauthorized person to practice pharmacy.
    6. Is mentally or physically incompetent to handle pharmaceutical duties.
    7. Is guilty of fraud, deception, or misrepresentation in passing the pharmacist examination.
    8. Is found by the board in violation of any of the provisions of the laws regulating drugs, pharmacies, and pharmacists or interns and technicians or the rules and regulations established by the board.
    9. Is found to have engaged in unprofessional conduct as that term is defined by the rules of the board.
    10. Is subject to incapacity of a nature that prevents a pharmacist from engaging in the practice of pharmacy with reasonable skill, competence, and safety to the public.
    11. Is found guilty by a court of competent jurisdiction of one or more of the following:
      1. A felony, as defined by the statutes of North Dakota.
      2. Any act involving moral turpitude or gross immorality.
      3. Violations of the pharmacy or the drug laws of North Dakota or rules and regulations pertaining thereto, or of statutes, rules or regulations of any other state, or of the federal government.
    12. Commits fraud or intentional misrepresentation in securing the issuance or renewal of a license or pharmacy permit.
    13. Sells, dispenses, or compounds any drug while on duty and while under the influence of alcohol or while under the influence of a controlled substance without a practitioner’s prescription.
    14. Discloses confidential information to any person, except as authorized by law.
  2. To prescribe rules and regulations not inconsistent with this chapter governing the cancellation or suspension of a license.
  3. To examine and license as pharmacist any applicant found entitled to such license.
  4. To prescribe rules and regulations for the guidance of its members, officers, and employees, and to ensure the proper and orderly dispatch of its business.
  5. To employ and pay such persons as it may deem necessary to inspect pharmacies in this state, investigate pharmacies for the information of the board, procure evidence in any proceeding pending before the board, or procure evidence in aid of any prosecution or action in any court commenced or about to be commenced by or against the board in relation to any matter in which the board has any duty to perform.
  6. To employ and pay counsel to advise the board or to prosecute or defend any action or proceeding commenced by or against the board or pending before it.
  7. To grant permits and renewals thereof for the establishment and operation of pharmacies.
  8. Only for good cause to cancel, revoke, or suspend permits and renewals thereof for the establishment and operation of pharmacies.
  9. To prescribe reasonable and nondiscriminatory rules and regulations in regard to granting, renewing, canceling, revoking, or suspending permits and renewals for establishing and operating pharmacies.
  10. Action by the board canceling, revoking, suspending, or refusing to renew a permit to establish or operate a pharmacy shall not be enforced for thirty days after notice has been given an aggrieved party by the board, nor during the time that an appeal by such aggrieved party is pending and until such appeal is finally determined.
  11. To prescribe reasonable rules and regulations relating to the physical design of space occupied by a pharmacy to ensure appropriate control of and safeguards over the contents of such pharmacy.
  12. To regulate and control the practice of pharmacy in North Dakota.
  13. To adopt, amend, and repeal rules for the regulation of pharmacies and pharmacists providing radiopharmaceutical services, including special training, education, and experience for pharmacists and physical design of space, safeguards, and equipment for pharmacies.
  14. To adopt, amend, and repeal rules determined necessary by the board for the proper administration and enforcement of this chapter, chapter 19-02.1 as that chapter pertains to drugs, subject to approval of the director of the state department of health, and chapter 19-03.1.
  15. The board or its authorized representatives may investigate and gather evidence concerning alleged violations of the provisions of chapter 43-15, chapter 19-02.1 that pertains to drugs, chapters 19-03.1, 19-03.2, and 19-04, or of the rules of the board. Board investigative files are confidential and may not be considered public records or open records for purposes of section 44-04-18, until a complaint is filed or a decision made by the board not to file a complaint.
  16. In addition to other remedies, the board may apply to the district court in the jurisdiction of an alleged violation, and that court has jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of chapter 43-15, chapter 19-02.1 pertaining to drugs, and chapter 19-03.1, whether or not there exists an adequate remedy at law. Whenever a duly authorized representative of the board finds or has probable cause to believe that any drug or device is adulterated, misbranded, mislabeled, or improperly identified, within the meaning of chapter 19-02.1, the representative shall affix to that drug or device a tag or other appropriate marking giving notice that the article is or is suspected of being adulterated, misbranded, mislabeled, or improperly identified, has been detained or embargoed and warning all persons not to remove or dispose of such article by sale or otherwise until provision for removal or disposal is given by the board or its agents or the court. No person may remove or dispose of such embargoed drug or device by sale or otherwise without the permission of the board or its agent, or, after summary proceedings have been instituted, without permission from the court.
  17. When a drug or device detained or embargoed has been declared by such representative to be adulterated, misbranded, mislabeled, or improperly identified, the board shall, as soon as practical thereafter, petition the district court in whose jurisdiction the article is detained or embargoed for an order for condemnation of such article. If the judge determines that the drug or device so detained or embargoed is not adulterated, misbranded, mislabeled, or improperly identified, the board shall direct the immediate removal of the tag or other marking. If the court finds the detained or embargoed drug or device is adulterated, misbranded, mislabeled, or improperly identified, such drug or device, after entry of the decree, shall be destroyed at the expense of the owner under the supervision of a board representative and all court costs and fees, storage, and other proper expense shall be borne by the owner of such drug or device. When the adulteration, misbranding, mislabeling, or improper identification can be corrected by proper labeling or processing of the drug or device, the court, after entry of the decree and after such costs, fees, and expenses have been paid and a good and sufficient bond has been posted, may direct that such drug or device be delivered to the owner for labeling or processing under the supervision of a board representative. Expense of supervision shall be paid by the owner. Bond posted shall be returned to the owner of the drug or device on representation to the court by the board that the drug or device is no longer in violation of the embargo and the expense of supervision has been paid. Nothing in this section shall be construed to require the board to report violations whenever the board believes the public’s interest will be adequately served in the circumstances by a suitable written notice or warning.
  18. The board shall establish a bill of rights for patients concerning the health care services a patient may expect in regard to pharmaceutical care.
  19. To adopt, amend, and repeal rules as may be deemed necessary by the board to register pharmacy technicians pursuant to qualifications established by the board, to charge a pharmacy technician an annual registration fee not to exceed fifty dollars, to specify tasks associated with and included in the practice of pharmacy which may be delegated by a licensed pharmacist to a registered pharmacy technician, to provide for suspension or revocation of a pharmacy technician’s registration, and to regulate and control pharmacy technicians. The board may allocate up to fifty percent of the amount of the registration fee to an appropriate pharmacy technician association for its general operating expenses, including pharmacy technician education and development standards.
  20. To require the self-reporting by an applicant or a licensee of any information the board determines may indicate possible deficiencies in practice, performance, fitness, or qualifications.
  21. To require information regarding an applicant’s or licensee’s fitness, qualifications, and previous professional record and performance from recognized data sources, including the national association of boards of pharmacy data bank, other data repositories, licensing and disciplinary authorities of other jurisdictions, professional education and training institutions, liability insurers, health care institutions, and law enforcement agencies be reported to the board. The board may require an applicant for licensure or a licensee who is the subject of a disciplinary investigation to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the licensee or applicant.
  22. To adopt, amend, and repeal rules as may be deemed necessary by the board to register veterinary dispensing technicians pursuant to qualifications established by the board, to charge a veterinary dispensing technician an annual registration fee not to exceed fifty dollars, to provide for suspension or revocation of a veterinary dispensing technician’s registration, to provide for suspension or revocation of a veterinary retail facility’s license, to regulate and control veterinary retail facilities, and to regulate and control veterinary dispensing technicians.
  23. To establish limited prescriptive authority for individuals to distribute opioid antagonist kits, also known as “Naloxone rescue kits.” If the board establishes limited prescriptive authority under this subsection, the board shall adopt rules to establish standards that may include training, certification, and continuing education requirements.
  24. To establish limited prescriptive authority through a statewide protocol for public health issues within the scope of practice for a pharmacist. The board shall adopt rules to establish standards of care.

Source: S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, §§ 6, 7; C.L. 1913, §§ 480, 481; S.L. 1937, ch. 193, §§ 3, 4; R.C. 1943, § 43-1510; S.L. 1959, ch. 322, § 6; S.L. 1971, ch. 436, § 1; 1979, ch. 467, § 1; 1981, ch. 444, §§ 1, 2; 1985, ch. 479, § 1; 1987, ch. 518, § 1; 1987, ch. 519, § 1; 1989, ch. 316, § 3; 1993, ch. 422, §§ 6, 7; 1995, ch. 217, § 4; 1995, ch. 243, § 2; 1995, ch. 405, § 2; 2003, ch. 211, § 22; 2007, ch. 363, § 3; 2007, ch. 115, § 10; 2011, ch. 311, § 2; 2015, ch. 187, § 2, effective August 1, 2015; 2021, ch. 312, § 2, effective March 23, 2021.

Section 43-15-10 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 360 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 2 of Chapter 312, Session Laws 2021, Senate Bill 2221.

Cross-References.

Administrative Agencies Practice Act, see N.D.C.C. ch. 28-32.

Notes to Decisions

Advertising of Price.

The First Amendment guarantee of freedom of speech prohibits a state from imposing a total ban on the advertisement of prices charged by pharmacists for prescription drugs, but does not preclude regulation of the time, place and manner of such advertising. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346, 1976 U.S. LEXIS 55 (U.S. 1976).

Rules and Regulations.

The board has no right to make a rule including any substantive matter not authorized by statute. Any such new matter would constitute legislation. Medical Properties v. North Dakota Bd. of Pharmacy, 80 N.W.2d 87, 1956 N.D. LEXIS 161 (N.D. 1956).

Denial of post-conviction relief was proper, because an administrative rule delineated JWH-018 1-Pentyl-3 (1-naphthoyl) indole (JWH-018) as a prohibited controlled substance when petitioner committed the alleged acts, the administrative rule had force and effect of law upon becoming effective, and subsequent codification of JWH-018 as a prohibited controlled substance did not invalidate the effect of the final administrative rule. Haag v. State, 2012 ND 241, 823 N.W.2d 749, 2012 N.D. LEXIS 246 (N.D. 2012).

Collateral References.

Nolo contendere or non vult, statute authorizing revocation of license upon conviction as applicable to conviction based on plea of, 89 A.L.R.2d 540.

Revocation or suspension of license or permit to practice pharmacy or operate drugstore because of improper sale or distribution of narcotic or stimulant drugs, 17 A.L.R.3d 1408.

Price advertisement: validity of statute or ordinance forbidding pharmacists to advertise prices of drugs or medicines, 44 A.L.R.3d 1301.

43-15-10. Powers of board. [Effective September 1, 2022]

In addition to other powers provided by law, the board shall have the following powers and duties, which shall be exercised in conformity with chapter 28-32 in order to protect the public health, welfare, and safety:

  1. To place on probation, reprimand, or fine any pharmacy, pharmacist, or pharmacy intern or pharmacy technician; or refuse to issue or renew, or suspend, revoke, restrict, or cancel, the license, permit, or registration of any pharmacy, pharmacist, or pharmacy intern or pharmacy technician, if any of the following grounds apply and the pharmacy, pharmacist, or pharmacy intern or pharmacy technician:
    1. Is addicted to any alcohol or drug habit.
    2. Uses any advertising statements of a character tending to deceive or mislead the public.
    3. Is subject to drug or alcohol dependency or abuse.
    4. Permits or engages in the unauthorized sale of narcotic drugs or controlled substances.
    5. Permits or engages an unauthorized person to practice pharmacy.
    6. Is mentally or physically incompetent to handle pharmaceutical duties.
    7. Is guilty of fraud, deception, or misrepresentation in passing the pharmacist examination.
    8. Is found by the board in violation of any of the provisions of the laws regulating drugs, pharmacies, and pharmacists or interns and technicians or the rules and regulations established by the board.
    9. Is found to have engaged in unprofessional conduct as that term is defined by the rules of the board.
    10. Is subject to incapacity of a nature that prevents a pharmacist from engaging in the practice of pharmacy with reasonable skill, competence, and safety to the public.
    11. Is found guilty by a court of competent jurisdiction of one or more of the following:
      1. A felony, as defined by the statutes of North Dakota.
      2. Any act involving moral turpitude or gross immorality.
      3. Violations of the pharmacy or the drug laws of North Dakota or rules and regulations pertaining thereto, or of statutes, rules or regulations of any other state, or of the federal government.
    12. Commits fraud or intentional misrepresentation in securing the issuance or renewal of a license or pharmacy permit.
    13. Sells, dispenses, or compounds any drug while on duty and while under the influence of alcohol or while under the influence of a controlled substance without a practitioner’s prescription.
    14. Discloses confidential information to any person, except as authorized by law.
  2. To prescribe rules and regulations not inconsistent with this chapter governing the cancellation or suspension of a license.
  3. To examine and license as pharmacist any applicant found entitled to such license.
  4. To prescribe rules and regulations for the guidance of its members, officers, and employees, and to ensure the proper and orderly dispatch of its business.
  5. To employ and pay such persons as it may deem necessary to inspect pharmacies in this state, investigate pharmacies for the information of the board, procure evidence in any proceeding pending before the board, or procure evidence in aid of any prosecution or action in any court commenced or about to be commenced by or against the board in relation to any matter in which the board has any duty to perform.
  6. To employ and pay counsel to advise the board or to prosecute or defend any action or proceeding commenced by or against the board or pending before it.
  7. To grant permits and renewals thereof for the establishment and operation of pharmacies.
  8. Only for good cause to cancel, revoke, or suspend permits and renewals thereof for the establishment and operation of pharmacies.
  9. To prescribe reasonable and nondiscriminatory rules and regulations in regard to granting, renewing, canceling, revoking, or suspending permits and renewals for establishing and operating pharmacies.
  10. Action by the board canceling, revoking, suspending, or refusing to renew a permit to establish or operate a pharmacy shall not be enforced for thirty days after notice has been given an aggrieved party by the board, nor during the time that an appeal by such aggrieved party is pending and until such appeal is finally determined.
  11. To prescribe reasonable rules and regulations relating to the physical design of space occupied by a pharmacy to ensure appropriate control of and safeguards over the contents of such pharmacy.
  12. To regulate and control the practice of pharmacy in North Dakota.
  13. To adopt, amend, and repeal rules for the regulation of pharmacies and pharmacists providing radiopharmaceutical services, including special training, education, and experience for pharmacists and physical design of space, safeguards, and equipment for pharmacies.
  14. To adopt, amend, and repeal rules determined necessary by the board for the proper administration and enforcement of this chapter, chapter 19-02.1 as that chapter pertains to drugs, subject to approval of the director of the department of health and human services, and chapter 19-03.1.
  15. The board or its authorized representatives may investigate and gather evidence concerning alleged violations of the provisions of chapter 43-15, chapter 19-02.1 that pertains to drugs, chapters 19-03.1, 19-03.2, and 19-04, or of the rules of the board. Board investigative files are confidential and may not be considered public records or open records for purposes of section 44-04-18, until a complaint is filed or a decision made by the board not to file a complaint.
  16. In addition to other remedies, the board may apply to the district court in the jurisdiction of an alleged violation, and that court has jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of chapter 43-15, chapter 19-02.1 pertaining to drugs, and chapter 19-03.1, whether or not there exists an adequate remedy at law. Whenever a duly authorized representative of the board finds or has probable cause to believe that any drug or device is adulterated, misbranded, mislabeled, or improperly identified, within the meaning of chapter 19-02.1, the representative shall affix to that drug or device a tag or other appropriate marking giving notice that the article is or is suspected of being adulterated, misbranded, mislabeled, or improperly identified, has been detained or embargoed and warning all persons not to remove or dispose of such article by sale or otherwise until provision for removal or disposal is given by the board or its agents or the court. No person may remove or dispose of such embargoed drug or device by sale or otherwise without the permission of the board or its agent, or, after summary proceedings have been instituted, without permission from the court.
  17. When a drug or device detained or embargoed has been declared by such representative to be adulterated, misbranded, mislabeled, or improperly identified, the board shall, as soon as practical thereafter, petition the district court in whose jurisdiction the article is detained or embargoed for an order for condemnation of such article. If the judge determines that the drug or device so detained or embargoed is not adulterated, misbranded, mislabeled, or improperly identified, the board shall direct the immediate removal of the tag or other marking. If the court finds the detained or embargoed drug or device is adulterated, misbranded, mislabeled, or improperly identified, such drug or device, after entry of the decree, shall be destroyed at the expense of the owner under the supervision of a board representative and all court costs and fees, storage, and other proper expense shall be borne by the owner of such drug or device. When the adulteration, misbranding, mislabeling, or improper identification can be corrected by proper labeling or processing of the drug or device, the court, after entry of the decree and after such costs, fees, and expenses have been paid and a good and sufficient bond has been posted, may direct that such drug or device be delivered to the owner for labeling or processing under the supervision of a board representative. Expense of supervision shall be paid by the owner. Bond posted shall be returned to the owner of the drug or device on representation to the court by the board that the drug or device is no longer in violation of the embargo and the expense of supervision has been paid. Nothing in this section shall be construed to require the board to report violations whenever the board believes the public’s interest will be adequately served in the circumstances by a suitable written notice or warning.
  18. The board shall establish a bill of rights for patients concerning the health care services a patient may expect in regard to pharmaceutical care.
  19. To adopt, amend, and repeal rules as may be deemed necessary by the board to register pharmacy technicians pursuant to qualifications established by the board, to charge a pharmacy technician an annual registration fee not to exceed fifty dollars, to specify tasks associated with and included in the practice of pharmacy which may be delegated by a licensed pharmacist to a registered pharmacy technician, to provide for suspension or revocation of a pharmacy technician’s registration, and to regulate and control pharmacy technicians. The board may allocate up to fifty percent of the amount of the registration fee to an appropriate pharmacy technician association for its general operating expenses, including pharmacy technician education and development standards.
  20. To require the self-reporting by an applicant or a licensee of any information the board determines may indicate possible deficiencies in practice, performance, fitness, or qualifications.
  21. To require information regarding an applicant’s or licensee’s fitness, qualifications, and previous professional record and performance from recognized data sources, including the national association of boards of pharmacy data bank, other data repositories, licensing and disciplinary authorities of other jurisdictions, professional education and training institutions, liability insurers, health care institutions, and law enforcement agencies be reported to the board. The board may require an applicant for licensure or a licensee who is the subject of a disciplinary investigation to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24. All costs associated with obtaining a background check are the responsibility of the licensee or applicant.
  22. To adopt, amend, and repeal rules as may be deemed necessary by the board to register veterinary dispensing technicians pursuant to qualifications established by the board, to charge a veterinary dispensing technician an annual registration fee not to exceed fifty dollars, to provide for suspension or revocation of a veterinary dispensing technician’s registration, to provide for suspension or revocation of a veterinary retail facility’s license, to regulate and control veterinary retail facilities, and to regulate and control veterinary dispensing technicians.
  23. To establish limited prescriptive authority for individuals to distribute opioid antagonist kits, also known as “Naloxone rescue kits.” If the board establishes limited prescriptive authority under this subsection, the board shall adopt rules to establish standards that may include training, certification, and continuing education requirements.
  24. To establish limited prescriptive authority through a statewide protocol for public health issues within the scope of practice for a pharmacist. The board shall adopt rules to establish standards of care.

Source: S.L. 1890, ch. 108, § 5; 1893, ch. 80, § 2; R.C. 1895, § 285; R.C. 1899, § 285; R.C. 1905, § 304; S.L. 1907, ch. 182, §§ 6, 7; C.L. 1913, §§ 480, 481; S.L. 1937, ch. 193, §§ 3, 4; R.C. 1943, § 43-1510; S.L. 1959, ch. 322, § 6; S.L. 1971, ch. 436, § 1; 1979, ch. 467, § 1; 1981, ch. 444, §§ 1, 2; 1985, ch. 479, § 1; 1987, ch. 518, § 1; 1987, ch. 519, § 1; 1989, ch. 316, § 3; 1993, ch. 422, §§ 6, 7; 1995, ch. 217, § 4; 1995, ch. 243, § 2; 1995, ch. 405, § 2; 2003, ch. 211, § 22; 2007, ch. 363, § 3; 2007, ch. 115, § 10; 2011, ch. 311, § 2; 2015, ch. 187, § 2, effective August 1, 2015; 2021, ch. 352, § 360, effective September 1, 2022.

43-15-11. Fees deposited with state treasurer — Separate fund — Vouchers. [Repealed]

Repealed by S.L. 1971, ch. 510, § 15.

Note.

For present provisions on deposit and disbursement of funds of occupational and professional boards, see section 54-44-12.

43-15-12. State board of pharmacy — Report.

The board may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source: S.L. 1890, ch. 108, § 11; 1893, ch. 80, § 5; R.C. 1895, § 290; R.C. 1899, § 290; R.C. 1905, § 311; S.L. 1907, ch. 182, § 20; C.L. 1913, § 494; R.C. 1943, § 43-1512; S.L. 1963, ch. 346, § 42; 1973, ch. 403, § 32; 1975, ch. 466, § 34; 1995, ch. 350, § 33; 2009, ch. 365, § 2.

43-15-13. State board of pharmacy — When members may teach pharmacy. [Repealed]

Repealed by S.L. 1995, ch. 407, § 1.

43-15-13.1. North Dakota pharmaceutical association — How governed. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.2. Membership of North Dakota pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.3. Rights of members of pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.4. Moneys payable from board of pharmacy to North Dakota pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.5. Method of expenditure of association’s funds — Annual report of receipts and disbursements. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-13.6. No liability upon state created by provisions of chapter. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-14. Unlawful practice of pharmacy.

  1. Applicability. No person may engage in the practice of pharmacy unless licensed to practice pharmacy under this chapter, except that a registered pharmacy technician may perform specific tasks delegated by and under the immediate personal supervision and control of a licensed pharmacist, as permitted under rules adopted by the board. Physicians or other practitioners as defined in this chapter who are licensed under the laws of this state may dispense and administer prescription drugs to their patients in the practice of their respective professions if specifically authorized to do so by state law.
  2. Penalties. Any person who is found by the board to have unlawfully engaged in the practice of pharmacy is subject to a fine to be imposed by the board not to exceed one thousand dollars for each offense. Each violation of this chapter or the rules adopted under this chapter pertaining to unlawfully engaging in the practice of pharmacy also constitutes a class B misdemeanor.
  3. A pharmacy or licensed pharmacist that utilizes the services of a registered pharmacy technician as permitted by the board, may not be considered as aiding and abetting an unauthorized person to practice pharmacy; provided, however, that the pharmacy or licensed pharmacist must retain responsibility for any act performed by a registered pharmacy technician in the course of the registered pharmacy technician’s employment.

Source: S.L. 1907, ch. 182, § 1; C.L. 1913, § 475; R.C. 1943, § 43-1514; S.L. 1957, ch. 300, § 1; 1957 Supp., § 43-1514; S.L. 1959, ch. 322, § 7; 1979, ch. 187, § 87; 1979, ch. 467, § 2; 1991, ch. 458, § 1; 1993, ch. 422, § 11; 1995, ch. 405, § 3.

Cross-References.

Controlled substances for care and treatment, see N.D.C.C. ch. 19-03.3.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

Sale of controlled substances, see N.D.C.C. ch. 19-03.1.

Sale of poisons, see N.D.C.C. ch. 19-04.

Collateral References.

“Brand name” or original-package nonprescription remedies, applicability of statutes prohibiting sales of medicines or drugs other than by pharmacists or pharmacies to, 98 A.L.R.2d 1063.

Physician’s liability to third person for prescribing drug to known drug addict, 42 A.L.R.4th 586.

43-15-15. Qualifications of licensed pharmacist.

Every applicant for license as a pharmacist in this state shall have the following qualifications:

  1. Be at least eighteen years of age.
  2. Be of good moral character.
  3. Be a graduate of a school or college of pharmacy recognized by the board as an approved school.

Any applicant who is a graduate of a school or college of pharmacy located outside the United States, whose school or college of pharmacy has not been recognized by the board as an approved school but who is otherwise qualified to apply for licensure to practice pharmacy in this state, may be deemed to have satisfied the requirements of subsection 3 by verification to the board of applicant’s academic record and applicant’s graduation and by meeting such other requirements as the board may establish from time to time. The board may require such applicant to successfully pass an examination or examinations given or approved by the board to establish proficiency in English and equivalency of education of such applicant with qualified graduates of a school or college recognized by the board as a prerequisite of taking the licensure examination provided for in section 43-15-19.

Before a license will be granted by the North Dakota board of pharmacy, the applicant must have practical experience for a term to be determined by the board in accordance with the requirements of the national association of boards of pharmacy in a retail pharmacy under the supervision of a licensed pharmacist, which experience must be predominantly work directly relating to selling drugs and poisons, compounding of pharmaceutical preparations and physicians’ prescriptions, keeping records, and making reports required under the state and federal statutes. Any employment of the applicant prior to the applicant’s completion of the first year of study in a college of pharmacy or its equivalent may not be applied in computing the fulfillment of this requirement.

Source: S.L. 1890, ch. 108, § 2; R.C. 1895, § 286; R.C. 1899, § 286; S.L. 1905, ch. 146, § 1; R.C. 1905, § 305; S.L. 1907, ch. 182, § 12; 1911, ch. 202, § 1; C.L. 1913, § 486; S.L. 1927, ch. 211, § 2; 1929, ch. 185, § 1; 1935, ch. 232, § 1; 1941, ch. 185, § 1; R.C. 1943, § 43-1515; S.L. 1949, ch. 289, § 1; 1957 Supp., § 43-1515; S.L. 1959, ch. 322, § 8; 1963, ch. 309, § 1; 1973, ch. 120, § 46; 1973, ch. 350, § 1; 1983, ch. 478, § 1; 1993, ch. 422, § 12.

43-15-16. Exception to qualificational requirements.

Any person qualified to take the examination for licensure as a pharmacist in this state under the law in effect prior to July 1, 1927, who failed to apply for the examination, upon due proof to the board that the person was so qualified and that the person is a bona fide resident of this state, may take the examination. Upon passing the examination in a manner satisfactory to the majority of the board, such person shall be given a license as a licensed pharmacist.

Source: S.L. 1941, ch. 185, § 1; R.C. 1943, § 43-1516; 1993, ch. 422, § 13.

Collateral References.

“Grandfather clause” of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

43-15-17. Qualifications for assistant registered pharmacist. [Repealed]

Repealed by S.L. 1979, ch. 467, § 16.

43-15-18. License of pharmacy intern.

To register in this state a pharmacy intern must have completed one year of college, be registered in a prepharmacy program, and must be employed by a licensed pharmacist. At the date of entering into internship, an intern shall file with the executive director of the board the following certificates accompanied by a fee set by the board:

  1. An application stating the applicant has entered into an internship giving the intern’s name, residence, and educational qualifications.
  2. A statement from the intern’s employer stating that the applicant will be employed by the pharmacist, as a pharmacy intern, that to the employer’s knowledge the applicant possesses the required education and qualifications.

The executive director of the board shall file the application and license the applicant as a pharmacy intern.

Source: S.L. 1903, ch. 135, §§ 1, 2; R.C. 1905, §§ 308, 309; S.L. 1907, ch. 182, § 15; C.L. 1913, § 489; S.L. 1927, ch. 210, § 1; R.C. 1943, § 43-1518; S.L. 1959, ch. 322, § 9; 1973, ch. 351, § 1; 1993, ch. 422, § 14; 1999, ch. 379, § 5.

43-15-18.1. Conviction not bar to license — Exceptions.

Conviction of an offense does not disqualify a person from licensure under this chapter unless the board determines that the offense has a direct bearing upon a person’s ability to serve the public as a pharmacist or that, following conviction of any offense, the person is not sufficiently rehabilitated under section 12.1-33-02.1.

Source: S.L. 1977, ch. 130, § 29; 1993, ch. 422, § 15.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04.

43-15-19. Examination for license.

Except as otherwise provided in this chapter, every applicant for licensure as a pharmacist, before receiving a license from the board, shall pass such an examination as to the applicant’s education and professional qualifications as the board shall prescribe.

Source: S.L. 1907, ch. 182, § 11; C.L. 1913, § 485; R.C. 1943, § 43-1519; S.L. 1979, ch. 467, § 3; 1993, ch. 422, § 16.

43-15-20. Fees for examination.

Each applicant for licensure as a pharmacist in this state shall pay to the secretary of the board before examination a fee to be set by the board not to exceed three hundred dollars. If the applicant fails to pass a satisfactory examination, the applicant may be re-examined at any regular meeting of the board, upon the payment of a further fee to be set by the board not to exceed three hundred dollars.

Source: S.L. 1890, ch. 108, §§ 8, 9; 1893, ch. 80, § 3; R.C. 1895, §§ 287, 288; R.C. 1899, §§ 287, 288; S.L. 1903, ch. 136, § 1; R.C. 1905, §§ 306, 307; S.L. 1907, ch. 182, § 14; C.L. 1913, § 488; S.L. 1927, ch. 211, § 4; R.C. 1943, § 43-1520; S.L. 1957, ch. 301, § 1; 1957 Supp., § 43-1520; S.L. 1979, ch. 467, § 4; 1993, ch. 422, § 17.

43-15-21. License — Issuance.

The board shall cause to be issued to each pharmacist in this state whom it finds entitled thereto, a license showing:

  1. The date of issue.
  2. The fact that the person to whom it was issued is a licensed pharmacist.
  3. The residence of the person to whom the license was issued.

The license must be signed by a majority of the members of the board.

Source: S.L. 1890, ch. 108, § 9; R.C. 1895, § 288; R.C. 1899, § 288; S.L. 1903, ch. 136, § 1; R.C. 1905, § 307; S.L. 1907, ch. 182, § 16; C.L. 1913, § 490; S.L. 1927, ch. 211, § 5; R.C. 1943, § 43-1521; S.L. 1979, ch. 467, § 5; 1993, ch. 422, § 18.

43-15-22. Licensing without examination.

The board, without examination, may register and issue a license as a pharmacist to any person of good moral character who presents to the board satisfactory evidence that before coming to this state the applicant legally had been licensed as a pharmacist in another state or foreign country, in which the requirements for such license with respect to qualifications are equivalent to the requirements of this state, but the board need not recognize or accept such license, certificate, or registration as evidence of the applicant’s qualifications unless it is satisfied that the applicant is in fact qualified to be a pharmacist in this state. The board may deny recognition or acceptance of the license, certificate, or registration of any state or foreign country which does not accord similar recognition to licentiates of this state. A fee to be set by the board not to exceed three hundred dollars must be paid prior to licensing without examination as provided for herein.

Source: S.L. 1907, ch. 182, § 10; C.L. 1913, § 484; R.C. 1943, § 43-1522; S.L. 1979, ch. 467, § 6; 1993, ch. 422, § 19.

43-15-23. Temporary certificate — How obtained.

The secretary of the board, or any member thereof, on request by the secretary in writing, may examine an applicant orally or in writing and issue a temporary certificate to practice pharmacy in this state. The certificate must authorize such practice and must be valid until the next meeting of the board. Only one temporary certificate may be issued to the same applicant, and no temporary certificate may be issued to any person whose application has been acted on by the board. The applicant for a temporary certificate shall pay to the person making the examination the same fee as is provided by this chapter for an examination by the board, and such fees when paid must be for the benefit of the said board and must be delivered to the secretary by the person making the examination.

Source: S.L. 1907, ch. 182, § 27; C.L. 1913, § 501; R.C. 1943, § 43-1523.

43-15-24. Register.

The secretary of the board shall keep a record or register in which, in addition to such other matters as the board may require, the secretary shall register each certificate issued under the provisions of this chapter, the facts appearing in the certificate, and all cancellations or renewals of the certificate or changes therein.

Source: S.L. 1907, ch. 182, § 17; C.L. 1913, § 491; R.C. 1943, § 43-1524.

43-15-25. Term of license — Renewal — Fee — Where displayed.

The license issued by the board to a pharmacist under this chapter, and the registration thereof, entitles the holder to act in the capacity therein stated for one year unless duly canceled, suspended, or revoked. Every licensee who desires to retain a license, on or before the first day of March in each year, shall pay to the secretary of the board a renewal fee in an amount to be fixed by the board not to exceed one hundred dollars. Upon payment of the fee, the board shall issue a renewal license. The license and renewal must be displayed in a conspicuous place in the pharmacy and drugstore where the holder is employed. After a licensee has held licenses duly issued over a period of fifty consecutive years, the secretary of the board may issue the licensee a lifetime license that entitles the licensee to act in the capacity of pharmacist thereafter without further payment unless the license is canceled, revoked, or suspended.

Source: S.L. 1890, ch. 108, §§ 9, 10; 1893, ch. 80, § 4; R.C. 1895, §§ 288, 289; R.C. 1899, §§ 288, 289; S.L. 1903, ch. 136, § 1; R.C. 1905, §§ 308, 310; S.L. 1907, ch. 182, §§ 16, 21; C.L. 1913, §§ 490, 495; S.L. 1927, ch, 211, §§ 5, 7; R.C. 1943, § 43-1525; S.L. 1959, ch. 322, § 10; 1963, ch. 310, § 1; 1973, ch. 352, § 1; 1979, ch. 467, § 7; 1993, ch. 422, § 20; 2009, ch. 365, § 3.

43-15-25.1. Continuing pharmaceutical education.

  1. Each pharmacist shall complete at least fifteen hours of approved continuing pharmaceutical education every year as a condition of renewal of a certificate of licensure as a pharmacist in this state.
  2. An annual renewal of a license may not be issued to a pharmacist until the pharmacist has satisfactorily completed an accredited program of continuing professional education, all of which may be home self-study, during the previous year to help assure the pharmacist’s continued competence to engage in the practice of pharmacy. The board from time to time shall determine the amount of continuing education to be required, not to exceed fifteen hours in each annual period. Upon request of the board, proof of compliance shall be furnished to the board.
  3. The board shall adopt rules necessary to carry out the stated objectives and purposes and to enforce the provisions of this section, which shall include the methods of determining accredited programs, methods of determining compliancy, any fees, and such other rules consistent with this section as the board shall determine. This section and all rules adopted hereunder shall be uniformly applied by the board.

Source: S.L. 1985, ch. 480, § 1; 1993, ch. 422, § 21; 2009, ch. 366, § 1.

43-15-25.2. Educational requirements — Rules.

The board shall adopt rules establishing the educational requirements and quality control procedures for pharmacists who conduct laboratory tests provided in subsection 24 of section 43-15-01. These rules must include a requirement that pharmacists receive training for each specific test performed and a requirement that pharmacists demonstrate proficiency for each test performed following nationally recognized proficiency guidelines.

Source: S.L. 1999, ch. 378, § 2; 2007, ch. 363, § 4.

43-15-25.3. Approved laboratory tests.

Approved laboratory tests are the following waived screening tests: glucose monitoring devices (FDA cleared/home use) 9221, cholesterol 1020, HDL cholesterol 2550, triglyceride 6118, glycosylated hemoglobin (Hgb A1C) 2204, and SARS-CoV-2. Additional tests may be added to this list as jointly determined by the board and the North Dakota board of medicine.

Source: S.L. 1999, ch. 378, § 3; 2015, ch. 297, § 15, effective August 1, 2015; 2021, ch. 171, § 2, effective April 22, 2021.

43-15-26. Failure to renew license — Renewal fee — Cancellation of license — Reinstatement.

If a licensed pharmacist in this state fails to pay the fee for a renewal of a license within the time required, the secretary of the board shall mail the pharmacist a notice, addressed to the pharmacist’s last-known place of residence, notifying the pharmacist of failure to obtain a renewal license. The delinquent licenseholder, within sixty days after the notice is mailed, may procure a renewal license upon the payment of a renewal fee to be set by the board not to exceed one hundred dollars. If the licenseholder fails to have a license renewed within sixty days after the notice is mailed, the original or renewal license, as the case may be, becomes void and the registry thereof must be canceled. The board, on application of the delinquent licenseholder and upon the payment of all unpaid fees, may authorize the issuance of a new license without examination, if it is satisfied that the applicant is a proper individual to receive the same.

Source: S.L. 1890, ch. 108, §§ 10, 16; 1893, ch. 80, § 4; R.C. 1895, §§ 289, 291; R.C. 1899, §§ 289, 291; R.C. 1905, §§ 310, 312; S.L. 1907, ch. 182, § 21; C.L. 1913, § 495; S.L. 1927, ch. 211, § 7; R.C. 1943, § 43-1526; S.L. 1979, ch. 467, § 8; 1993, ch. 422, § 22; 2009, ch. 365, § 4.

43-15-27. Change place of business — Record — Fee.

Every licensed pharmacist, within thirty days after changing a place of business as designated on the books of the board, shall notify the secretary of the board of the new place of business and shall accompany the notice with a fee to be set by the board not to exceed twenty-five dollars. Upon receipt of the fee and the notice of change of place of business, the secretary shall make the necessary change in the register and issue a receipt for the fee to the person sending it.

Source: S.L. 1907, ch. 182, § 22; C.L. 1913, § 496; R.C. 1943, § 43-1527; S.L. 1979, ch. 467, § 9; 1993, ch. 422, § 23.

43-15-28. Certificate of registration canceled — Notice of hearing. [Repealed]

Repealed by S.L. 1989, ch. 522, § 2.

43-15-28.1. Temporary suspension — Appeal.

  1. If the board has verified evidence that probable cause or grounds for discipline requires the suspension of a pharmacy permit or license of a pharmacist and if harm to the public is so imminent and critical that substantial harm could or would likely result if the permit or license is not suspended prior to a hearing, the board may order a temporary suspension ex parte.
  2. An ex parte temporary suspension remains in effect for not more than sixty days, unless otherwise terminated by the board.
  3. The board shall set the date of a full hearing on the cause and grounds for discipline regarding the permit or license for not later than sixty days from the issuance of the ex parte temporary suspension order. Within three days after the issuance of the ex parte suspension order, the board shall serve the pharmacy or pharmacist with a copy of the order along with a copy of the complaint and notice of the date set for the full hearing.
  4. The pharmacy or pharmacist may appeal the ex parte temporary suspension order prior to the full hearing. For purposes of appeal, the district court shall decide whether probable cause or grounds for discipline reasonably requires the temporary suspension to adequately protect the public interest. The court shall give priority to the appeal for prompt disposition.

Source: S.L. 1989, ch. 522, § 1; 1993, ch. 422, § 24.

43-15-29. False registration — Penalty.

Any person who procures or attempts to procure license as a pharmacist, for that person or any other person under this chapter, by making or causing to be made any false representations, or who falsely or fraudulently represents that the person is licensed, is guilty of a class A misdemeanor, and in addition to the penalty imposed by the court, shall, if a licensed pharmacist, have the license canceled by the board.

Source: S.L. 1907, ch. 182, § 24; C.L. 1913, § 498; R.C. 1943, § 43-1529; S.L. 1975, ch. 106, § 480; 1979, ch. 467, § 11; 1993, ch. 422, § 25.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

43-15-30. Licensed pharmacist member of North Dakota pharmaceutical association. [Repealed]

Repealed by S.L. 2009, ch. 365, § 5.

43-15-31. Prescriptions to be filed and preserved.

Every licensed pharmacist in the state shall file, or cause to be filed, any prescription, or a copy thereof, which has been compounded or dispensed in the pharmacist’s pharmacy or drugstore. The prescription or a copy of the prescription must be preserved for at least five years after it has been filled. The pharmacist may furnish a copy of any prescription to the party presenting it on the request of such party only.

Source: S.L. 1907, ch. 182, § 23; C.L. 1913, § 497; R.C. 1943, § 43-1531; 1987, ch. 520, § 1; 1993, ch. 422, § 27.

Cross-References.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

43-15-31.1. Patient profile record system.

A patient profile record system must be maintained in all pharmacies for persons for whom prescriptions are dispensed. The patient profile record system must be devised so as to enable the immediate retrieval of information necessary to enable the dispensing pharmacist to identify previously dispensed medication at the time a prescription is presented for dispensing. One profile card may be maintained for all members of a family living at the same address and possessing the same family name.

The following information must be recorded:

  1. The family name and the first name of the person for whom the medication is intended, which is the patient.
  2. The address of the patient.
  3. An indication of the patient’s age group, e.g., infant, child, adult.
  4. The original date the medication is dispensed pursuant to the receipt of a physician’s prescription.
  5. The number or designation identifying the prescription.
  6. The prescriber’s name.
  7. The name, strength, and quantity of the drug dispensed.
  8. The initials of the dispensing pharmacist, and the date of dispensing medication as a renewal (refill) if said initials and such date are not recorded on the back of the original prescription.

The pharmacist shall attempt to ascertain and shall record any allergies and idiosyncrasies of the patient and any chronic conditions which may relate to drug utilization as communicated to the pharmacy by the patient.

Upon receipt of a prescription, a pharmacist must examine the patient’s profile record before dispensing the medication to determine the possibility of a harmful drug interaction or reaction. Upon recognizing a potential harmful reaction or interaction, the pharmacist shall take appropriate action to avoid or minimize the problem which shall, if necessary, include consultation with the physician.

A patient profile record must be maintained for a period of not less than five years from the date of the last entry in the profile record.

Source: S.L. 1977, ch. 401, § 1.

Cross-References.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

43-15-31.2. Prescription drug information required.

With each prescription dispensed, the licensed pharmacist or the licensed intern pharmacist, in addition to labeling the prescription in accordance with law, must explain to the patient or the patient’s agent the directions for use and a warning of the potential harmful effect of combining any form of alcoholic beverage with the medication and any additional information, in writing if necessary, to assure the proper utilization of the medication or device prescribed. For those prescriptions delivered outside the confines of the pharmacy, the explanation must be by telephone or in writing, provided that this does not apply to those prescriptions for patients in hospitals or institutions where the medication is to be administered by a nurse or other individual licensed to administer medications, or to those prescriptions for patients who are to be discharged from a hospital or institution.

Source: S.L. 1977, ch. 402, § 1; 1993, ch. 422, § 28.

Cross-References.

Prescription Drug Monitoring Program, see N.D.C.C. ch. 19-03.5.

Collateral References.

Civil liability of pharmacist or druggists for failure to warn of potential drug interactions in use of prescription drug, 79 A.L.R.5th 409.

43-15-31.3. Oral transmission of prescriptions.

An oral transmission of a prescription drug may be accepted and dispensed by a pharmacist or licensed pharmacist intern if received from a practitioner, or a nurse licensed under chapter 43-12.1 who is authorized by the practitioner to orally transmit the prescription, or a registered dental hygienist or a registered dental assistant who is authorized by the supervising dentist to orally transmit the prescription. The practitioner shall document the order for oral transmission in the patient’s records. Only a licensed pharmacist or a licensed pharmacist intern or a registered pharmacy technician may receive an orally transmitted new or refill prescription.

Source: S.L. 1993, ch. 422, § 29; 1993, ch. 424, § 1; 1999, ch. 379, § 6; 2009, ch. 366, § 2.

43-15-31.4. Limited prescriptive practices.

  1. A pharmacist has limited prescriptive practices to initiate or modify drug therapy following diagnosis or established protocols by a licensed physician or an advanced practice registered nurse, under the supervision of the licensed physician or advanced practice registered nurse, in accordance with this section. The licensed physician, advanced practice registered nurse, and the pharmacist must have access to the patient’s appropriate medical records. The care provided to the patient by the pharmacist must be recorded in the patient’s medical records and communicated to the licensed physician or the advanced practice registered nurse.
  2. The licensed physician or advanced practice registered nurse, and the pharmacist, shall prepare a collaborative agreement concerning the scope of the pharmacist’s prescriptive practices and shall update the agreement if the scope of the pharmacist’s prescriptive practices is modified. The collaborative agreement, or an amendment to the agreement, is effective if executed by the licensed physician or advanced practice registered nurse, and the pharmacist.
  3. The collaborative agreement may be between a medical director and pharmacist-in-charge. The medical director and pharmacist-in-charge shall document and update the agreement for any physician, advanced practice registered nurse, and pharmacist covered under the agreement.
  4. A collaborative agreement must be made available to the respective licensing boards of the parties to the agreement.
  5. The collaborative agreement must include a provision that requires the pharmacist to immediately notify the licensed physician or advanced practice registered nurse if the pharmacist initiates or modifies a drug therapy.

Source: S.L. 1995, ch. 408, § 1; 2001, ch. 376, § 1; 2015, ch. 295, § 1, effective August 1, 2015; 2015, ch. 297, § 16, effective August 1, 2015; 2019, ch. 352, § 1, effective August 1, 2019.

43-15-31.5. Administration of drugs — Rules. [Effective through August 31, 2022]

A pharmacist who administers drugs must have authority from the board. The board shall adopt rules to establish educational and operational requirements for a pharmacist to obtain and maintain authority to administer drugs. The board may adopt rules to establish educational and operational requirements to allow a pharmacy technician to administer a drug under the immediate personal supervision and control of a pharmacist. Rules adopted by the board under this section must include:

  1. Educational requirements, which include, at a minimum:
    1. Basic immunology, including the human immune response;
    2. The mechanism of immunity, adverse effects, dose, and administration schedule of available vaccines and approved medication and immunization;
    3. Current immunization guidelines and recommendations of the centers for disease control and prevention;
    4. Management of adverse events, including identification, appropriate response, documentation, and reporting;
    5. Physiology and techniques of administration of drugs; and
    6. Recordkeeping requirements established by law, rule, and regulation or established standards of care.
  2. A requirement an authorized pharmacist shall obtain and maintain current certification in cardiopulmonary resuscitation or basic cardiac life support.
  3. Requirements for content of practitioner orders and protocols.
  4. Requirements relating to the reporting of the administration to a patient’s primary health care provider and to the state department of health.
  5. Requirements relating to environments in which drugs may be administered.

Source: S.L. 2001, ch. 375, § 2; 2019, ch. 350, § 2, effective August 1, 2019; 2021, ch. 313, § 1, effective March 26, 2021.

Note.

" Section 43-15-31.5 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 361 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 1 of Chapter 313, Session Laws 2021, Senate Bill 2279."

43-15-31.5. Administration of drugs — Rules. [Effective September 1, 2022]

A pharmacist who administers drugs must have authority from the board. The board shall adopt rules to establish educational and operational requirements for a pharmacist to obtain and maintain authority to administer drugs. The board may adopt rules to establish educational and operational requirements to allow a pharmacy technician to administer a drug under the immediate personal supervision and control of a pharmacist. Rules adopted by the board under this section must include:

  1. Educational requirements , which include, at a minimum:
    1. Basic immunology, including the human immune response;
    2. The mechanism of immunity, adverse effects, dose, and administration schedule of available vaccines and approved medication and immunization;
    3. Current immunization guidelines and recommendations of the centers for disease control and prevention;
    4. Management of adverse events, including identification, appropriate response, documentation, and reporting;
    5. Recordkeeping requirements established by law, rule, and regulation or established standards of care.
  2. A requirement an authorized pharmacist shall obtain and maintain current certification in cardiopulmonary resuscitation or basic cardiac life support.
  3. Requirements for content of practitioner orders and protocols.
  4. Requirements relating to the reporting of the administration to a patient’s primary health care provider and to the department of health and human services.
  5. Requirements relating to environments in which drugs may be administered.

Physiology and techniques of administration of drugs; and

Source: S.L. 2001, ch. 375, § 2; 2019, ch. 350, § 2, effective August 1, 2019; 2021, ch. 352, § 361, effective September 1, 2022.

43-15-32. Who may engage in drug business.

Every store, dispensary, pharmacy, laboratory, or office, selling, dispensing, or compounding drugs, medicines, or chemicals, or compounding or dispensing prescriptions of medical practitioners in the state, and every business carried on under a name which contains the words “drugs”, “drugstore”, or “pharmacy”, or which is described or referred to in such terms by advertisements, circulars, posters, signs, or otherwise, must be in charge of a registered pharmacist.

Source: S.L. 1907, ch. 182, §§ 2, 26; C.L. 1913, §§ 476, 500; S.L. 1927, ch. 211, § 1; 1931, ch. 212, § 2; R.C. 1943, § 43-1532; S.L. 1975, ch. 106, § 481; 1979, ch. 467, § 12.

Law Reviews.

Note: North Dakota’s Pharmacy Ownership Law: An Analysis of the Strictest Pharmacy Ownership Law in the United States, see 86 N.D. L. Rev. 355 (2010).

43-15-33. License to sell emergency medicines. [Repealed]

Repealed by S.L. 1999, ch. 379, § 8.

43-15-34. Operation of pharmacy — Permit required — Application — Fee.

No person, copartnership, association, corporation, or limited liability company shall open, establish, operate, or maintain any pharmacy within this state without first obtaining a permit so to do from the board. Application for the permit shall be made upon a form to be prescribed and furnished by the board and shall be accompanied by a fee to be set by the board not to exceed three hundred dollars. A like fee shall be paid upon each annual renewal thereof. Separate applications shall be made and separate permits required for each pharmacy opened, established, operated, or maintained by the same owner and for the change of location, name, or ownership of an existing pharmacy.

Source: S.L. 1937, ch. 193, § 1; R.C. 1943, § 43-1534; S.L. 1949, ch. 290, § 1; 1957 Supp., § 43-1534; S.L. 1973, ch. 353, § 1; 1979, ch. 467, § 13; 1993, ch. 54, § 106.

Notes to Decisions

Hospital Pharmacies.

Hospital operating a pharmacy was not required to procure additional or separate permit to make retail sales to the general public. Medcenter One v. North Dakota State Bd. of Pharm., 1997 ND 54, 561 N.W.2d 634, 1997 N.D. LEXIS 54 (N.D. 1997).

43-15-34.1. Out-of-state pharmacies.

Any pharmacy operating outside the state which ships, mails, or delivers in any manner a dispensed prescription drug or legend drug into North Dakota shall obtain and hold a pharmacy permit issued by the North Dakota state board of pharmacy and that part of the pharmacy operation dispensing the prescription for a North Dakota resident shall abide by state law and rules of the board.

Source: S.L. 1987, ch. 521, § 1.

43-15-35. Requirements for permit to operate pharmacy — Exceptions.

  1. The board shall issue a permit to operate a pharmacy, or a renewal permit, upon satisfactory proof of all of the following:
    1. The pharmacy will be conducted in full compliance with existing laws and with the rules and regulations established by the board.
    2. The equipment and facilities of the pharmacy are such that prescriptions can be filled accurately and properly, and United States pharmacopeia and national formulary preparations properly compounded and so that it may be operated and maintained in a manner that will not endanger public health and safety.
    3. The pharmacy is equipped with proper pharmaceutical and sanitary appliances and kept in a clean, sanitary, and orderly manner.
    4. The management of the pharmacy is under the personal charge of a pharmacist duly licensed under the laws of this state.
    5. The applicant for such permit is qualified to conduct the pharmacy, and is a licensed pharmacist in good standing or is a partnership, each active member of which is a licensed pharmacist in good standing; a corporation or an association, the majority stock in which is owned by licensed pharmacists in good standing; or a limited liability company, the majority membership interests in which is owned by licensed pharmacists in good standing, actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.
    6. Suitable reference sources either in book or electronic data form, are available in the pharmacy or online, which might include the United States pharmacopeia and national formulary, the United States pharmacopeia dispensing information, facts and comparisons, micro medex, the American society of health-system pharmacists formulary, or other suitable references pertinent to the practice carried on in the licensed pharmacy.
  2. The provisions of subdivision e of subsection 1 do not apply to:
    1. The holder of a permit on July 1, 1963, if otherwise qualified to conduct the pharmacy, provided that any such permitholder that discontinues operations under such permit or fails to renew such permit upon expiration is not exempt from the provisions of subdivision e of subsection 1 as to the discontinued or lapsed permit.
    2. A hospital pharmacy furnishing service only to patients in that hospital.
    3. The applicant for a permit to operate a pharmacy which is a hospital, if the pharmacy for which the hospital seeks a permit to operate is a retail pharmacy that is the sole provider of pharmacy services in the community and is a retail pharmacy that was in existence before the hospital took over operations. A hospital operating a pharmacy under this subdivision may operate the pharmacy at any location in the community.
    4. The applicant for a permit to operate a pharmacy which is the owner of a postgraduate medical residency training program if the pharmacy is collocated with and is run in direct conjunction with the postgraduate medical residency training program. For purposes of this subdivision, the postgraduate medical residency training program must be accredited by the accredita