North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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[453] March 15, 2000

VIA FACSIMILE AND REGULAR U.S. MAIL

Clay T. Hines Assistant to the President for Legal Affairs North Carolina Community College System 200 West Jones Street Raleigh, North Carolina 27603-1379

Charles P. Wilkins Counsel North Carolina Board of Massage and Bodywork Therapy Broughton, Wilkins, Webb & Sugg, P.A. Post Office Box 2387 Raleigh, North Carolina 27602

Re: Advisory Opinion; Approval and Licensing of Massage and Bodywork Therapy Schools; N.C. Gen. Stat. §§ 115D-88, 90-631

Dear Ms. Hines and Mr. Wilkins:

On behalf of the North Carolina Community College System and the North Carolina Board of Massage and Bodywork Therapy, respectively, you have each written to request this office’s opinion on several issues relating to the approval and licensing of massage and bodywork therapy schools.

QUESTIONS PRESENTED

The questions that you have addressed to this office include the following:

(1)
In view of the North Carolina Massage and Bodywork Therapy Practice Act, is the State Board of Community Colleges legally obligated to license massage and bodywork therapy schools and, if so, what is the scope of this responsibility?
(2)
In view of the North Carolina Massage and Bodywork Therapy Practice Act, does the State Board of Community Colleges have the legal authority to license massage and bodywork therapy schools and, if so, what is the scope of this authority?
(3)
Does N.C. Gen. Stat. § 115D-88(4) require the State Board of Community Colleges to immediately cease licensing massage and bodywork therapy schools?
(4)
May the State Board of Community Colleges continue to license massage and bodywork therapy schools until the North Carolina Board of Massage and Bodywork Therapy is authorized to license massage and bodywork therapy schools?
(5)
May the State Board of Community Colleges continue to license massage and bodywork therapy schools if massage and bodywork therapy schools do not want to be exempt under N.C. Gen. Stat. § 115D-88(4) and wish to continue being licensed by the State Board of Community Colleges?
(6)
Should the State Board of Community Colleges be required to continue licensing massage and bodywork therapy schools until the North Carolina Board of Massage and Bodywork Therapy is authorized to license massage and bodywork therapy schools?
(7)
If the State Board of Community Colleges does not have the legal authority to license massage and bodywork therapy schools, are massage and bodywork therapy schools nonetheless still subject to the requirements of Article 8 of Chapter 115D of the North Carolina General Statutes?
(8)
Is there a conflict between N.C. Gen. Stat. § 115D-88(4) and N.C. Gen. Stat. § 115D-88(5) and, if so, which prevails?
(9)
If the North Carolina Board of Massage and Bodywork Therapy is the board legally obligated to approve massage and bodywork therapy schools and programs, do massage and bodywork therapy programs offered by community colleges require approval of both the North Carolina Board of Massage and Bodywork Therapy and the State Board of Community Colleges and, if not, which board is legally obligated to approve these programs?

SUMMARIZED RESPONSE

As set forth below, it is the opinion of this office that, based upon the provisions of N.C. Gen. Stat. § 115D-88(4) and the creation of the North Carolina Board of Massage and Bodywork Therapy, the State Board of Community Colleges has neither the legal authority nor responsibility to license massage and bodywork therapy schools pursuant to Article 8 of Chapter 115D of the North Carolina General Statutes. The State Board of Community Colleges lacks such authority even if massage and bodywork therapy schools do not want to be exempt from Article 8 of Chapter 115D, and even though the North Carolina Board of Massage and Bodywork Therapy has only the authority to approve rather than license massage and bodywork therapy schools. In addition, it is our opinion that massage and bodywork therapy schools that are exempt from Article 8 of Chapter 115D need not comply with any of the requirements of Article 8, including the provisions of Sections 115D-95, 115D-96 & 115D-97 of the North Carolina General Statutes. Finally, it is our opinion that Article 8 does not require community colleges offering massage and bodywork therapy courses to be licensed by the State Board of Community Colleges, although these community colleges presumably are already subject to oversight by the State Board of Community Colleges. Community colleges offering massage and bodywork therapy courses must, however, obtain approval from the North Carolina Board of Massage and Bodywork Therapy if these community colleges want the students who complete these courses to qualify for licenses from the North Carolina Board of Massage and Bodywork Therapy.

DISCUSSION

State Board of Community Colleges Licensing of Proprietary Schools. As you are undoubtedly aware, the responsibility for licensing and supervising proprietary schools was transferred from the State Board of Education to the State Board of Community Colleges (the “Community Colleges Board”) in 1987, when the former Article 40 of Chapter 115C of the North Carolina General Statutes was recodified as Article 8 of Chapter 115D of the North Carolina General Statutes. 1987 N.C. Sess. Laws ch. 442. These proprietary schools included schools offering instruction in massage and bodywork therapy that had previously been subject to licensing pursuant to the provisions of the former Article 40. Article 8 of Chapter 115D was subsequently amended by the North Carolina General Assembly in 1989, 1989 N.C. Sess. Laws ch. 877, but schools offering instruction in massage and bodywork therapy that were “proprietary business schools,” “proprietary trade schools,” “proprietary technical schools” or “correspondence schools” (hereinafter, “proprietary schools”) continued to be licensed and supervised by the Community Colleges Board. See N.C. Gen. Stat. § 115D-89 (1999).

Article 8, however, exempts certain schools from its provisions. After the 1989 amendments to Article 8, Section 115-88 of the North Carolina General Statutes provides in relevant part:

It is the purpose of this Article to include all private schools operated for profit: Provided, that the following schools shall be exempt from the provisions of this Article:

(4)
Any school for which there is another legally existing licensing or approving board or agency in this State. . . .
(5)
Any established university, professional, or liberal arts college, public or private school regulated or recognized pursuant to Chapter 115C of the General Statutes or by any other State Agency, or any State institution which has heretofore offered, or which may hereinafter offer one or more courses covered in this Article: Provided, that the tuition fees and charges, if any, made by such university, college, high school, or State institution shall be collected by their regular officers in accordance with the rules prescribed by the board of trustees or governing body of such university, college, high school, or State institution; but provisions of the Article shall apply to all business schools, proprietary trade schools, proprietary technical schools, or correspondence schools, as defined in this Article, and operated within the State of North Carolina as such institutions, except schools for which there are other legally existing licensing boards or agencies.

N.C. Gen. Stat. § 115D-88 (1999).

Creation of the North Carolina Board of Massage and Bodywork Therapy. In 1998, the North Carolina General Assembly enacted the North Carolina Massage and Bodywork Therapy Practice Act (the “Act”), N.C. Gen. Stat. §§ 90-620 et seq., which created the North Carolina Board of Massage and Bodywork Therapy (the “Massage Board”). N.C. Gen. Stat. § 90-625 (1999).1 The Massage Board was given the responsibility of establishing rules for the approval of massage and bodywork therapy schools (i.e., schools that offer a training program in massage and bodywork therapy), of granting approval to schools that met its criteria, and of maintaining a list of approved schools. N.C. Gen. Stat. § 90-631 (1999); see also N.C. Gen. Stat. § 90626(9) (1999) (gives the Massage Board the power to “[a]dopt, amend, or repeal any rules necessary to carry out the purposes of [Article 8] and the duties and responsibilities of the [Massage] Board, including rules related to the approval of massage and bodywork therapy schools. . .”). Notably, while the Act gave the Massage Board the authority to license massage and bodywork therapists, it did not give the Massage Board the authority to license massage and bodywork therapy schools.

Exemption of Proprietary Massage and Bodywork Therapy Schools from Article 8. Nonetheless, it is our opinion that the passage of the Act, which gave the Massage Board the authority to approve massage and bodywork therapy schools, operates to exempt proprietary massage and bodywork therapy schools from Article 8. As indicated above, proprietary schools otherwise subject to Article 8 are exempt if there is another legally existing licensing or approving board or agency in North Carolina. The fact that the Massage Board can approve massage and bodywork therapy schools is sufficient to trigger this exemption, even though the Massage Board lacks the authority to license such schools. Our opinion in this regard is bolstered by the 1989 amendments to Section 115D-88(4), in which the General Assembly explicitly added language broadening the exemption afforded by this section from schools for which there was another licensing board to schools for which there was another licensing or approving board or agency. 1989 N.C. Sess. Laws c. 877 s. 2.

It is our further opinion that, because massage and bodywork therapy schools are exempt from Article 8, the Community College Board has neither the legal obligation nor the legal authority to license such schools pursuant to the provisions of that article. The General Assembly removed this authority and obligation from the Community College Board when it enacted the Act. Moreover, in light of this action by the General Assembly, the Community College Board cannot continue to license massage and bodywork therapy schools pursuant to Article 8 even if the Community College Board desired to continue doing so or even if massage and bodywork therapy schools did not want to be exempt from Article 8. We believe that neither the Community College Board nor the massage and bodywork therapy schools can confer authority on the Community College Board that has been taken from it by the General Assembly.

Thus, it is the opinion of this office that Section 115D-88(4), in conjunction with the passage of the Act, immediately prevents the Community College Board from continuing to license massage and bodywork therapy schools pursuant to Article 8. Furthermore, it is our opinion that the exemption afforded to massage and bodywork therapy schools by Section 115D-88(4) likewise prevents massage and bodywork therapy schools from being subject to the other provisions of Article 8, including the provisions of Sections 115D-95, 115D-96 & 115D-97 of the North Carolina General Statutes.

Schools Covered by Section 115D-88(5). Section 115D-88(5) provides an additional exemption for established universities, professional colleges, liberal arts colleges, public schools or private schools (i) that are regulated or recognized pursuant to Chapter 115C (e.g., by the State Board of Education) or by any other state agency and (ii) that offer courses covered by Article. N.C. Gen. Stat. § 115D-88(5) (1999).2 Similarly, any state institution is generally exempt from Article 8 even though it offers courses covered by Article 8 . Id. Section 115D-88(5) further states, however, that established universities, colleges, schools and state institutions offering courses subject to Article 8 are not exempt from regulation under Article 8 if they are in fact proprietary schools, as defined in Section 115D-87, and operate as such in North Carolina. Id.

Finally, Section 115D-88(5) states that even if an established university, college, school or state institution is a proprietary school, it is not subject to Article 8 if there is another licensing board or agency for that school. While the language in that exemption is not identical to the exemption set forth in Section 115D-88(4) -- which exempts “schools for which there is another legally existing licensing or approving board or agency in this State” -- it is our opinion that the distinction between those two exemptions is not meaningful.

The North Carolina Supreme Court has recently reiterated two important rules of statutory construction:

In interpreting a statute, we first look to the plain meaning of the statute. Where the language of a statute is clear, the courts must give the statute its plain meaning; however, where the statute is ambiguous or unclear as to its meaning, the courts must interpret the statute to give effect to the legislative intent. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990). However, "'where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.'" Mazda Motors of Am., Inc. v. Southwestern Motors, Inc., 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979) (quoting State v. Barksdale, 181 N.C. 621, 625, 107 S.E. 505, 507 (1921)).

Frye Regional Medical Center, Inc. v. Hunt, 350 N.C. 39, 45, 510 S.E.2d 159, 163 (1999).

There is nothing in Section 115D-88(5) to indicate that the General Assembly meant to limit any proprietary school described in that subsection solely to the exemption described therein. Instead, the language of Section 115D-88(5) makes it clear that the proprietary schools subject to that subsection are the proprietary schools “defined in this Article.” Insofar as there is nothing distinctive about the proprietary schools described in Section 115D-88(5) as compared to the proprietary schools generally subject to Article 8, the proprietary schools described in Section 115D-88(5) are also subject to all the exemptions afforded in Sections 115D-88(1) through (4c). One of these exemptions, of course, is Section 115D-88(4), which contains the broader language exempting schools for which there is a “licensing or approving board or agency.” Consequently, it is our opinion that the Community College Board has no authority pursuant to Article 8 over any proprietary school that is subject to the authority of another “licensing or approving board or agency,” and that the literal difference between the language of Section 115D-88(4) and Section 115D-88(5) is the result of a drafting oversight rather than any legislative intent to create a special, limited exemption for an undefined subclass of proprietary schools.

As a result, it is our opinion that if an established university, college, school or state institution that offers massage or bodywork therapy courses falls within the definition of a proprietary school, it is still entitled to the exemption in Section 115D88(4) for schools for which there is another licensing or approving board or agency, or any other exemption set forth in Section 115D-88.

Community Colleges Offering Massage and Bodywork Therapy Courses. Finally, we believe that if a community college offers massage and bodywork therapy courses, it constitutes a massage and bodywork therapy school and will need to obtain approval from the Massage Board, in accordance with Section 90-631 of the North Carolina General Statutes. Otherwise, these courses will not satisfy the licensing requirements for massage and bodywork therapists, who must complete a course of study consisting of a minimum of 500 classroom hours of supervised instruction at a Massage Board-approved school. N.C. Gen. Stat. § 90-629(4) (1999). The General Statutes do not, however, identify any penalty for the failure of a massage and bodywork therapy school to obtain approval from the Massage Board. In addition, because the Massage Board does not have the authority to license massage and bodywork therapy schools, a community college offering massage and bodywork therapy courses need not obtain a license from the Massage Board.

We hope that this advisory opinion is of assistance to each of you.

Signed by:

Grayson G. Kelley Senior Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General Donald R. Esposito, Jr. Assistant Attorney General

1 The Act generally became effective on November 1, 1998, although Sections 90-623 and 90634 of the North Carolina General Statutes became effective on July 1, 1999. 1998 N.C. Sess. Laws c. 230, s. 15.

2 It is our opinion that the reference in Section 115D-88(5) to the “courses covered by Article 8" refers to the types of courses enumerated in Section 115D-87, which are used to identify the educational institutions that constitute the proprietary schools subject to Article 8. See N.C. Gen. Stat. § 115D-87. For example, the courses covered by Article 8 include “classes conducted for the purpose of teaching . . . any trade, mechanical or industrial occupation or teaching any or several of the subjects needed to train youths or adults in the skills, knowledge and subjects, related industrial information, and job judgment, necessary for success in one or more of the skilled trades, industrial occupations or related occupations.”

N.C. Gen. Stat. § 115D-87(4).