North Carolina



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 10 CPS 0071

|A D Gustafson Inc. |) | |

|Andrew Gustafson |) | |

|Petitioner |)) | |

| |))))|DECISION |

|vs. | | |

| | | |

|NC State Highway Patrol | | |

|Respondent | | |

On June 2, 2010, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Raleigh, North Carolina. On July 8, 2010, Respondent filed a proposed Decision with the Office of Administrative Hearings.

APPEARANCES

For Petitioner: Andrew Gustafson, Pro Se

Owner of Petitioner

PO Box 783152

Winter Garden, FL 34787

For Respondent: Tamara Zmuda

Assistant Attorney General

NC Dept. of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUES

1. Whether Respondent exceeded its authority, acted erroneously, and/or failed to act as required by statute or law in issuing a permit and overweight citation and penalty.

2. Whether Respondent was arbitrary or capricious in issuing Petitioner a special permit and overweight citation and penalty.

WITNESSES

For Petitioner: Andrew Gustafson via telephone

For Respondent: Sergeant Ronald Locklear, NC State Highway Patrol

Trooper Phillip A. Collins, NC State Highway Patrol

EXHIBITS ADMITTED INTO EVIDENCE

Petitioner: None

Respondent: A. Citation No. 4008323-0

B. Citation No. 3164282-0

C. Special Permit No. 907301A0201

D. Affidavit of Tammy Denning

E. Petitioner’s Letter of Protest dated August 21, 2009

F. Respondent’s Decision of Protest dated November 9, 2009

FINDINGS OF FACT

Having considered all matters of record, the testimony and exhibits presented at the contested case hearing, and the relevant statutes, the undersigned Administrative Law Judge hereby finds as follows:

Background Facts

1. Andrew Gustafson is the owner of AD Gustafson Inc. (Hereinafter referred to as “Petitioner”)

2. The North Carolina Department of Crime Control and Public Safety, State Highway Patrol, is the agency charged with the regulation and enforcement of commercial motor vehicles, oversize and overweight vehicles, motor carrier safety, and mobile and manufactured housing. (Hereinafter referred to as “Respondent”)

3. On January 7, 2010, Petitioner filed a contested case petition appealing Respondent’s November 9, 2009 decision to uphold Petitioner’s permit and overweight citations and assess a $4885.00 civil penalty assessment against Petitioner for Citation Nos. 4008323-0 and 3164282-0. (Respondent’s Exhibit F)

Adjudicated Facts at Hearing

4. On July 30, 2009, Petitioner’s employee, Mark Pierce, was sitting in Petitioner’s seven axle tractor and semi-trailer, bearing license plate numbers Z1191F (FL) and 9276CC (FL) (hereinafter referred to as “Petitioner’s truck”) at an auction site off NC 211 in Robeson County with an excavator on the semi-trailer. Pierce drove Petitioner’s truck off the auction site, drove approximately 100 yards on NC 211, and turned left into a BP station. At the time Petitioner’s truck was traveling on NC 211, its second axle, which was retractable, was up.

5. At approximately 1:14 p.m., Sergeant Ronald Locklear (“Sergeant Locklear”) of the North Carolina State Highway Patrol observed Petitioner’s truck pull onto and travel on NC 211. Sergeant Locklear pulled Petitioner’s truck over to check the status of its special permit.

6. Mr. Pierce, driver of Petitioner’s truck did not produce a valid special permit to Locklear.

7. Sgt Locklear called the North Carolina Permit Office, and confirmed that no special permit had been issued for Petitioner’s truck.

8. Sgt Locklear called Trooper Phillip A. Collins (“Trooper Collins”) of the North Carolina State Highway Patrol to finish conducting the stop of Petitioner’s truck, because Sgt. Locklear was on his way to a funeral.

9. At approximately 1:27 pm, Trooper Collins arrived at the vehicle stop. Trooper Collins called the North Carolina Permit Office, and confirmed that a special permit was requested for Petitioner’s truck at 1:36 p.m. (Respondent’s Exhibits C and D) Trooper Collins weighed Petitioner’s truck, and determined that Petitioner’s truck exceeded statutory weight limitations. (See Respondent’s Exhibit B)

11. As a result of the violations, Trooper Collins issued Petitioner two citations: Citation No. 4008323-0 for operating without a required permit, for five hundred dollars ($500.00). and Citation No. 3164282-0 for exceeding the standard statutory weight limitations, in the amount of four thousand three hundred and eighty-five dollars and 00/100 ($4,385.00). (Respondent’s Exhibits A and B)

12. On August 21, 2009, Petitioner submitted a letter of protest to Respondent’s Motor Carrier Enforcement Section disputing the citations. (Respondent’s Exhibit E) In that letter, Petitioner explained as follows:

Our driver, Mark Pierce, loaded a piece of equipment at Lloyds, Meekins & Sons Auction site in Lumberton, NC and after loading went directly across the street to a Sundo Kwik Shop. He was told by auction personnel that he could go across the street to a mini truck shop. So he went across the street to get out of the way of other drivers loading at the auction site, and to also receive his North Carolina permit that was being faxed to him. Unfortunately, there were no scales over there, just diesel pumps. The officer pulled our driver over while crossing the street and gave him two (2) tickets; one was for ‘operating without a permit’ and the second ticket was an overweight citation on 6 axles. Granted we were on the highway to ‘cross the street,’ . . . we were on 7 axles, a four axle tractor and a three axle trailer.

We are a real small family owned business and tickets like this can put a small company such as ours out of business!! . . .

Just so you know, we order special oversized, overweight permits on a daily basis for our fleet and abide by the rules and regulations. We were not trying to do anything illegal by any means and wish you would reconsider the charges you accessed [sic] against our company.

(Respondent’s Exhibit E)

13. Tammy Denning, NC Department of Transportation Director of Permits, explained in her affidavit, (Respondent’s Exhibit D) that Respondent issued a single trip permit to Petitioner for the above-referenced truck at 1:36 pm on July 30, 2009. That single trip permit was ordered by telephone at 1:36 pm on July 30, 2009. No single trip permit request was made before 1:36 pm on July 30, 2010 requesting authorization for Petitioner to operate a truck-tractor, bearing license plate number Z1191F (FL) between Lumberton, North Carolina and the South Carolina state line on July 30, 2009. (Respondent’s Exhibit D)

14. At the contested case hearing, Trooper Collins indicated that he talked with the owner of the truck on Pierce’s phone during the vehicle stop on July 30, 2010. On Citation # 4008323-0, Trooper Collins wrote, “The owner stated he ordered the permit after the driver called and left him a message saying the equipment was loaded and he was ready to go.” The owner agreed, “The driver should not have left the auction yard prior to getting the permit.” (Respondent’s Exhibit A, p 2) Collins noted that the owner said his driver was going to the store to pick up his permit, and that Pierce was supposed to get the fax number of the store so the owner could send the permit number to Pierce. Collins called Respondent’s permit office and spoke with Donna Kelly. Ms. Kelly advised Collins that the owner requested a permit @ 1:36 pm. Kelly could not locate any request by email, phone, or fax before the 1:36 pm request. (Respondent’s Exhibit A, p 2) Based on this information, the permit was issued after the initial stop at 1:14 pm.

15. Collins weighed Petitioner’s vehicle and issued the two citations. Collins further explained that he had stopped trucks between Hwy 211 and I-95 for the same violation during the last 18 months, and that the auction yard was aware of the permit requirements. Collins noted that it is approximately 19-20 miles from the auction yard to the state line. There are lots of instances when trucks have been loaded up with items bought at the auction, but did not have the permit as required.

16. Mr. Andrew Gustafson admitted that Petitioner’s truck did not have a special permit to operate on the highways of North Carolina at the time it traveled on NC 211 in Robeson County. Gustafson knows the rules and requirements for ordering permits as he does that on a routinely and daily basis. His driver had just loaded his truck, and pulled across the street to get a faxed permit, and get a drink. When he ordered the permit from Respondent, Gustafson did not know the driver had pulled over. Gustafson explained that his driver told him he had 4 axles on the ground, and the Trooper watched him load his truck.

17. Mark Pierce, the driver of Petitioner’s truck on July 30, 2010, did not appear at the contested case hearing or testify by telephone. Therefore, the only evidence presented at hearing, regarding the number of truck axles that were down on the highway before the subject vehicle stop, was Sgt. Locklear’s testimony and Petitioner’s recitation of what Pierce told him.

18. Gustafson thought a small fine for not having a permit in hand is a more just penalty, and contended that the amount of fine imposed by Respondent is not fair or justified given the circumstances of this case.

CONCLUSIONS OF LAW

Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received notice of the hearing, and Petitioner received Respondent’s letter constituting the agency action and stating Petitioner’s right to appeal.

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.

The subject matter of a contested case hearing in the Office of Administrative Hearings is the agency decision. Britthaven, Inc. v. N.C. Dep’t of Human Res., 118 N.C. App. 379, 382-83, 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).

Respondent has the authority and responsibility to regulate and enforce the laws pertaining to the operation of commercial motor vehicles.

N.C. Gen Stat. §§ 20-118 and 119 require that any vehicles exceeding 80,000 lbs. must be issued a special permit to legally operate on the highways of North Carolina.

7. N.C. Gen. Stat. § 20-118 provides:

(b) The following weight limitations shall apply to vehicles operating on the highways of the State:

(1) The single-axle weight of a vehicle or combination of vehicles shall not exceed 20,000 pounds.

(2) The tandem-axle weight of a vehicle or combination of vehicles shall not exceed 38,000 pounds.

8. N.C. Gen. Stat. § 20-119(d) provided:

[W]here a permit is required but not obtained under this section the Department of Crime Control and Public Safety may assess a civil penalty for each violation against the registered owner of the vehicle as follows: (1) A fine of five hundred dollars ($ 500.00) for . . . operating without the issuance of a permit.

9. N.C. Gen. Stat. § 20-118(e) states:

(1)        Except as provided in subdivision (2) of this subsection, for each violation of the single-axle or tandem-axle weight limits set in subdivision (b)(1), (b)(2), or (b)(4) of this section or axle weights authorized by special permit according to G.S. 20-119(a), the Department of Crime Control and Public Safety shall assess a civil penalty against the owner or registrant of the vehicle in accordance with the following schedule: for the first 1,000 pounds or any part thereof, four cents (4¢) per pound; for the next 1,000 pounds or any part thereof, six cents (6¢) per pound; and for each additional pound, ten cents (10¢) per pound. These penalties apply separately to each weight limit violated. In all cases of violation of the weight limitation, the penalty shall be computed and assessed on each pound of weight in excess of the maximum permitted.

10. On July 30, 2009, Petitioner’s truck weighed 118,400 lbs, and was operated on NC 211 in Robeson County without the issuance of a special permit in violation of N.C. Gen Stat. §§ 20-118 and 119.

11. A preponderance of the evidence at hearing supports Respondent’s issuance of Citation No. 4008323-0, with a $500.00 civil penalty, for operating without the issuance of a special permit.

12. The preponderance of the evidence showed that the scale weight of Petitioner’s truck less permissible weight, and Trooper Collins’ overweight calculations, as listed in Respondent’s Exhibit B, are correct and accurate.

13. On July 30, 2009, Petitioner’s truck weight, as shown in Respondent’s Exhibit B, exceeded the statutory weight limitations set out in N.C. Gen Stat. §§ 20-118.

14. A preponderance of the evidence at hearing supports Respondent’s issuance of Citation No. 3164282-0 to Petitioner for overweight violations.

15. Petitioner has failed to show that Respondent substantially prejudiced its rights; and either acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule. Accordingly, Petitioner has failed to carry its burden under N.C. Gen. Stat. § 150B-23(a).

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that Respondent’s decision to impose civil penalties on Petitioner should be AFFIRMED.

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), (b1), (b2) and (b3). The agency may consider only the official record prepared pursuant to N.C. Gen. Stat. § 150B-37.

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).

This the 30th day of July, 2010.

_________________________________

Melissa Owens Lassiter

Administrative Law Judge

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