STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF HALIFAX 09 CPS 6158

______________________________________________________________________

LYNCH’S AUTO SALES )

SALVAGE & WRECKER )

SERVICE, INC )

Petitioner, )

) DECISION GRANTING

vs ) SUMMARY JUDGEMENT

) FOR RESPONDENT

)

N. C. Department of Crime Control and Public )

Safety, Division of State Highway Patrol, )

Respondent. )

______________________________________________________________________

Upon consideration of Respondent’s Motion for Summary Judgment, Petitioner’s response thereto, and for good cause shown, the Court GRANTS Summary Judgment for Respondent as follows:

APPEARANCES

For Petitioner: Michael C Byrne

Law Offices of Michael C Byrne PC

150 Fayetteville St. Suite 1130

Raleigh NC 27601

For Respondent: Tamara S Zmuda

Assistant Attorney General

NC Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether Respondent is entitled to summary judgment on its decision to remove Petitioner Wrecker Company from the Highway Patrol’s Wrecker Rotation?

FINDINGS OF FACT

1. At all relevant times for this case, Randy Lynch owned and operated Petitioner Wrecker Company.

2. Under N.C. Gen. Stat. § 20-184 and 20-188, Respondent is authorized, and thereby, maintains a Wrecker Rotation that is used when citizens request a member of the NC Highway Patrol call a wrecker service to tow a vehicle, or when a citizen delegates to law enforcement the authority to tow a vehicle, which is on or near a street or highway. (2001) (Resp Exh 1) Respondent administers the Wrecker Rotation pursuant to 14A NCAC 9H .0308 through .0324.

3. By February 8, 2007, Petitioner applied for inclusion on the Respondent’s Highway Patrol Wrecker Rotation in Warren and Halifax counties. On its applications, Randy Lynch, owner of Petitioner, certified that Petitioner fully complied with the wrecker rotation regulations, and agreed to comply, at all times, with such regulations while on Respondent’s Wrecker Rotation in Warren and Halifax counties.

4. After passing inspection, Petitioner was listed, and served on Respondent’s Wrecker Rotation for Warren and Halifax counties without incident.

5. On January 30, 2008, Randy Lynch was charged with Felony Assault Inflicting Serious Bodily Injury, in violation of N.C. Gen. Stat. § 14-32.4, which was classified as an “F” Felony.

6. On November 10, 2008, Randy Lynch pled guilty to Felony Assault Inflicting Serious Bodily Injury in Warren County.

7. Neither Randy Lynch nor any other employee of Petitioner Wrecker Company notified Respondent of Randy Lynch’s charge or conviction before Respondent learned on July 1, 2009, on its own, about Randy Lynch’s conviction.

8. On July 1, 2009, Respondent’s employee, Sergeant Eddie Lemons discovered Randy Lynch’s conviction while conducting a criminal record check during a routine inspection of Petitioner Wrecker Company. Sgt. Lemons obtained a computerized criminal history on Randy Lynch.

9. On July 2, 2009, Respondent’s First Sergeant James Henderson called Randy Lynch on the telephone, and informed Mr. Lynch that due to Lynch’s Felony Assault conviction, a Class F felony, and Lynch’s failure to notify Respondent of such conviction, Respondent was removing Petitioner from the Wrecker Rotation in Warren and Halifax counties.

10. First Sgt. Henderson followed up his telephone conversation with Mr. Lynch, by letter dated July 2, 2009. In that letter, Henderson confirmed that Respondent was removing Petitioner from the Warren County Wreck Rotation. By separate letter sent to Petitioner on July 2, 2009, First Sgt. Henderson also confirmed that Respondent was removing Petitioner from the Halifax County Wrecker Rotation.

11. On August 11, 2009, Mia Lynch, Randy Lynch’s wife, filed an internal appeal regarding its removal from the Warren and Halifax counties Wrecker Rotation lists. Mrs. Lynch advised that she was the owner of Petitioner’s corporation, and their wrecker service had been towing vehicles for the Highway Patrol since approximately 1981. She further explained that Petitioner had two current employees eligible to operate and answer wrecker calls for Petitioner.

12. On September 1, 2009, Lt. Bobby Culler met with Randy and Mia Lynch to discuss Petitioner’s appeal.

13. By letter dated September 8, 2009, Lt. Culler advised Petitioner that he was upholding Respondent’s removal of Petitioner from the Warren County and Halifax County Wrecker Rotation. Culler upheld that removal, because Petitioner violated 14A NCAC 09H .0321(21), (22), and (23) when Randy Lynch was convicted of the felony Assault of November 10, 2008, and when Petitioner failed to notify Respondent of this conviction. Further, per the Administrative Code and Highway Patrol policy, “a wrecker service that is removed from the rotation wrecker list remains ineligible for reinstatement even if ownership has been transferred to a family member.” As Culler’s letter constituted Respondent’s Final Agency Decision on this matter, he notified Petitioner of his appeal rights to the Office of Administrative Hearings.

14. On November 10, 2009, Petitioner appealed Respondent’s September 8, 2009 decision by filing a contested case petition to the Office of Administrative Hearings. In this appeal, Petitioner wrote:

Respondent removed Petitioner from the North Carolina Highway Patrol Wrecker Rotation system/listing. By taking this action, Respondent deprived Petitioner of property and substantially prejudiced Petitioner’s rights and additionally, (1) Exceeded its authority or jurisdiction, (2) Acted erroneously, (3) Failed to use proper procedure, (4) Acted in violation of Constitutional provisions, (5) Failed to act as required by law or rule, and/or (6) Was arbitrary, and capricious, and/or abused its discretion. Petitioner has exhausted all requisite administrative remedies prior to filing this Petition.

15. Petitioner does not dispute that Petitioner’s owner, Randy Lynch, pled guilty to the felony in question. Petitioner does not dispute that Respondent’s regulation requires that upon being convicted of a Class F felony involving assault, the driver of that wrecker service must be removed from the Wrecker Rotation.

16. In responding to Respondent’s Motion for Summary Judgment, Petitioner argued that Respondent’s decision to remove Petitioner from the Warren and Halifax county Wrecker Rotation was unconstitutional as applied, was arbitrary, capricious, and an abuse of discretion, and deprived Petitioner of his livelihood.

CONCLUSIONS OF LAW

1. This contested case is subject to dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rules 56 of the Rules of Civil Procedure, N.C. Gen. Stat. §§ 150B-33(b)(3a) and -36(d); and 26 NCAC 3 .0105 and .0114. 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 so without regard to the given labels.

2. Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c). A movant may meet this burden “by proving that an essential element of the opposing party's claim is nonexistent, or by showing . . . that the opposing party cannot produce evidence to support an essential element of her claim or cannot surmount an affirmative defense which would bar the claim.” Collingwood v. G. E. Real Estate Equities, 324 N.C. 63, 66 (1989).

3. Pursuant to N.C. Gen. Stat. §§ 20-184, and 20-188, Respondent Highway Patrol is authorized to maintain and regulate a Wrecker Rotation list. N.C. Gen. Stat. § 20-188 also delegates to Respondent Highway Patrol the duty “to enforce all laws and regulations respecting travel and the use of vehicles upon the highways of the State.”

4. Respondent administers the Wrecker Rotation pursuant to 14A NCAC 9H .0308 through .0324. Because an injunction was placed on 14A NCAC 09H .0308 through .0324 (2008) in 2008, the 2001 administrative rules apply in this case.

5. 14A NCAC 09H .0321(a)(20)(2001) provides that wrecker service owners are responsible for ensuring that the owner and each driver participating on the Wrecker Rotation have not been convicted of, pled guilty to, received a pray for judgment continued (PJC) for any class F, G, H, or I felony involving an assault within the last ten years. (Resp Exh 1)

6. Additionally, 14A NCAC 09H .0321(a)(21)(2001) imposes a “continuing obligation” on the wrecker service listed on a Wrecker Rotation list to notify the Highway Patrol immediately if the owner or driver of a wrecker service is charged with any of the crimes listed in the 14A NCAC 09 H. 0321(a)(20).

 7. 14A NCAC 09 H .0323(b) further provides that if a wrecker service owner is convicted of any of the offenses specified in 14A NCAC 09 H. 0321(a)(20), then the wrecker service shall be removed from the wrecker rotation list. (Emphasis added, Resp Exh 1)    

8. In this case, there are no genuine issues of material fact that on November 10, 2008, Petitioner’s owner, Randy Lynch, pled guilty, and was convicted of Felony Assault Inflicting Serious Bodily Injury in Warren County. There are no genuine issues of material fact that neither Randy Lynch nor any other employees of Petitioner Wrecker Company informed Respondent Highway Patrol of Randy Lynch’s November 10, 2008 conviction before Respondent discovered such conviction during an inspection on July 1, 2009. (Resp Exhs 3, 4, 5, 6)

9. Petitioner’s failure to immediately notify Respondent Highway Patrol of Randy Lynch’s conviction constitutes a violation of 14A NCAC 09H .0321(a)(21)(2001).

10. 14A NCAC 09H .0321(b) and 14A NCAC 09H .0323(c) mandate removal of Petitioner from Respondent’s the Wrecker Rotation lists in Warren and Halifax counties due to Petitioner’s violation of 14A NCAC 09H .0321(a)(21)(2001).

11. 14A NCAC 09H .0323(i)(2001) provides that:

A wrecker service that is removed from the rotation wrecker list does not become eligible for reinstatement merely because ownership has been transferred to a family member.

12. Due to the rule in 14A NCAC 09H .0323(i), transferring ownership of Petitioner’s corporation from Randy Lynch to his wife Mia Lynch, does not make Petitioner’s Wrecker Company eligible for reinstatement to the Warren and Halifax counties Wrecker Rotation lists.

13. Based on the foregoing, there is no genuine issue of material fact that Petitioner violated 14A NCAC 09H .0321(a)(21), and that Respondent properly removed Petitioner from the Wrecker Rotation in Warren and Halifax counties. Based on the foregoing, Respondent is entitled to summary judgment as a matter of law.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned GRANTS Respondent’s Motion for Summary Judgment.

NOTICE AND ORDER

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.

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).

This the 10th day of September, 2010.

_________________________________

Melissa Owens Lassiter

Administrative Law Judge

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