Files.nc.gov



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 09 CPS 6780

|John Paschall |) | |

|Pilot Intermodal Inc. |) | |

|Petitioner |)) | |

| |) |DECISION |

|vs. |))))| |

| | | |

|North Carolina Department of Crime Control | | |

|and Public Safety | | |

|Respondent | | |

THIS MATTER came on for hearing before the Honorable Donald W. Overby on November 17, 2010 in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Dexter “Chip” Campbell III

NC State Bar No. 31434

Cranfill Sumner & Hartzog LLP

P.O. Box 27808

For Respondent: Jess D. Mekeel

Assistant Attorney General

North Carolina Department of Justice

Crime Control Section

9001 Mail Service Center

Raleigh, NC 27699-9001

WITNESSES

The following witnesses appeared and testified on behalf of Petitioner:

John Paschall

EXHIBITS

The following exhibits were admitted into evidence on behalf of Petitioner:

1. Virginia DMV Transcript of Driver History for Henry Matthews (2/27/2009)

2. Virginia State Police – Driver/Vehicle Examination Report (5/22/2009)

3. Subject Citation (6/25/2009) No.: 3050042-5

4. US MVR (6/25/2009)

5. § 391.15: Disqualification of drivers.

6. US MVR (1/29/2010)

7. US MVR (5/4/2010)

8. § 391.25: Annual inquiry and review of driving record

9. § 384.208: Notification of disqualification

ISSUE

Whether Respondent acted erroneously in issuing the subject citation?

BASED UPON careful consideration of the sworn testimony of the witness presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witness by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. Wherefore, the undersigned makes the following Findings of Fact, Conclusions of Law and Decision.

FINDINGS OF FACTS

1. Petitioner, Pilot Intermodal Inc. (“Pilot”) was issued citation no. 3050042-5 on June 25, 2009 for “Driving a CMV while disqualified license suspended in North Carolina.”

2. Henry Matthews (“Matthews”) was employed by Pilot on June 25, 2009. Matthews was the driver of Pilot’s commercial motor vehicle (CMV) on June 25, 2009 when the subject citation was issued to Pilot by the North Carolina Highway Patrol.

3. Pilot hired Matthews in March of 2009. When Pilot hired Matthews it was required by the Federal Motor Carrier Safety Regulations (“FMCSR”) to obtain a copy of his driver’s license history from Virginia, the issuing state of Matthews’s commercial driver’s license. Matthew’s was not separately licensed in North Carolina at the time the citation was issued on June 25, 2009.

4. In compliance with the FMCSR, Pilot obtained and reviewed a copy of the Virginia DMV transcript for Matthews’s driver history, dated as of February 27, 2009. (Exh.1). The Virginia DMV report showed that Matthews had a valid Virginia commercial driver’s license. There were no active suspensions or disqualifications listed on the Virginia DMV transcript at the time Matthews was hired by Pilot.

5. Matthews was stopped while driving Petitioner’s vehicle by the Virginia State Police and inspected on May 22, 2009. At that time there was no notice showing Matthew’s license had been revoked by the State of North Carolina or that there were any suspensions or disqualifications to Matthews’s driver’s license from any source.

6. Matthews did not inform anyone at Pilot about any disqualifications or suspensions with his driver’s license.

7. Pilot complied with its obligations and duties under the FMCSR with respect to conducting the requisite driving background check on Matthews at the time of hire. After Pilot was put on notice of the June 25, 2009 citation, Pilot obtained a copy of Matthew’s license history from US MVR Express, a company widely recognized and accepted by states for providing accurate and correct drivers’ histories, oftentimes more accurate than the states own DMV records. The driver’s history for Matthews dated June 25, 2009 shows no disqualifications or suspensions and that he had an active Class A commercial driver’s license in the State of Virginia.

8. Pilot obtained yet another copy of Matthew’s license history from US MVR Express on January 29, 2010. That driver’s history for Matthews likewise shows no disqualifications or suspensions and that he had an active Class A commercial driver’s license in the State of Virginia as of that date.

9. Yet another copy of Matthew’s license history from US MVR Express was obtained by Pilot on May 4, 2010. That driver’s history for Matthews shows a suspension related to the citation issued on June 25, 2009, and that the date of the suspension is March 19, 2010. There is nothing in this driver’s record, nor in evidence before this Tribunal, which reflects what offense or event put Matthews’ license into a state of revocation initially.

10. No suspensions or disqualifications appeared on any of the records that Pilot properly checked prior to May 4, 2010. There is no evidence that the State of North Carolina ever gave the State of Virginia notice of any kind of any interaction with Matthews or that the State of North Carolina had revoked or suspended Matthew’s driving privilege in this State prior to the notation on the May 2, 2010 record check.

11. At all times during this administrative proceeding, Petitioner has been courteous and deferential to Respondent.

12. At no time leading up to the date of this citation did Pilot have any actual or constructive knowledge of any suspensions and/or disqualification with Matthews’s driver’s license that would cause him to be a “disqualified driver” as defined by 49 CFR § 391.15.

BASED UPON the foregoing Findings of Facts, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. All parties were properly before the Administrative Law Judge and jurisdiction and venue are proper. To the extent that the Findings of Fact contain Conclusions of Law or that the Conclusions of Law are Findings of Fact, they should be considered without regard to the given labels.

2. The subject matter of a contested case hearing in the Office of Administrative Hearings is the agency decision. See Britthaven, Inc. v. N.C. Dep’t of Human Res., 118 N.C. App. 379, 382-383, 455 S.E.2d 455, 459, disc. rev. denied, 341 N.C. 418, 461 S.E.2d 754 (1995). The purpose of the hearing is to “determine whether the petitioner has met its burden in showing that the agency substantially prejudiced petitioner’s rights, and that the agency also acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule.” Id. Unless a statute provides otherwise, the petitioner has the burden of proof in all contested cases. See Richardson v. N.C. Dep’t of Pub. Instruction Licensure Section, __ N.C. App. __, __, 681 S.E.2d 479, 485 (“It is well-settled that a petitioner has the burden of proof at an administrative hearing to prove that he is entitled to relief from the action of the administrative agency. This burden is on the petitioner even if he must prove a negative.” (citing Overcash v. N.C. Dep’t of Env’t & Natural Res., 179 N.C. App. 697, 635 S.E.2d 442 (2006), disc. rev. denied, 361 N.C. 220, 642 S.E.2d 445 (2007))), disc. rev. denied, 363 N.C. 745, 688 S.E.2d 694 (2009).

3. Respondent has the authority and responsibility to regulate and enforce the laws pertaining to commercial and overweight motor vehicles.

4. 49 CFR § 384.209 places an affirmative duty on the State of North Carolina to notify within ten days any other State wherein a driver who holds a commercial driver’s license is convicted of a traffic offense in this State. Likewise, 49 CFR § 384.208 places an affirmative duty on the State of North Carolina to notify with in ten days any other State wherein a driver who holds a commercial driver’s license has his or her license revoked or suspended or otherwise disqualified in this State.

5. North Carolina did not properly notify the State of Virginia concerning the status of Matthews’ driver’s license as required by the Federal Motor Carrier Safety Act.

6. The parties stipulate and agree that the Petitioner did not have actual notice of the status of Matthews’ driver’s license.

7. The State of Virginia is required only to check its State records before issuing a CDL. Likewise the motor carrier is only required to check the records of its home state. It would be untenable and perhaps impossible for a motor carrier to have to check the records of every state. The reporting requirements for the states wherein the infraction occurred avoid shifting the onerous burden onto the backs of the carriers.

8. The FMCSA places an affirmative burden on the driver to report any disqualification of his or her license to the employing motor carrier. That knowledge is not automatically imputed to the employer. No reasonable inference of knowledge can be inferred because of the driver’s knowledge. To hold the employer to such a standard is untenable and unreasonable. It would in essence place an unwritten requirement on each motor carrier to be in a constant search of all fifty states motor vehicle records to make sure the driver does not have an infraction that is unreported to the employer. The reporting requirements of the states within the FMCSA are in essence an acknowledgement that the knowledge of the driver is not imputed to the employer.

9. Respondent acted erroneously when it issued the subject citations because Petitioner, acting in good faith and in compliance with its duties and obligations under the FMCSA had no actual or constructive knowledge or notice that Matthews was “disqualified” on June 25, 2009. The Petitioner did every thing legally required to comply with the law whereas the State of North Carolina did not comply with the reporting requirements of the FMCSA

10. Petitioner has met its burden of proof under N.C. Gen. Stat. §150B-23(a).

DECISION

Petitioner has met his burden of proving by a preponderance of the evidence that Respondent’s decision to impose a civil penalty on Petitioner was erroneous and should be REVERSED and the subject citation should be DISMISSED.

NOTICE

The North Carolina Department of Crime Control and Public Safety will make the Final Decision in this contested case. Pursuant to N.C. Gen. Stat. § 150B-36(a), the agency making the Final Decision is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the Final Decision. In making its Final Decision, the agency must comply with the provisions of N.C. Gen. Stat. §§ 150B-36(b), -36(b1), -36(b2) and -36(b3). The agency may consider only the official record prepared pursuant to N.C. Gen. Stat. § 150B-37.

ORDER

It is hereby ordered that the North Carolina Department of Crime Control and Public Safety shall serve a copy of its Final Decision upon each party and the Office of Administrative Hearings, in accordance with N.C. Gen. Stat. § 150B-36(b3).

IT IS SO ORDERED.

This the 2nd day of February, 2011.

_____________________________________

Donald W. Overby

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download