STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF COLUMBUS 09 CPS 2426

|Robert C. Bacon, |) | |

|Petitioner, |)) | |

| |))))| |

|vs. | |DECISION |

| | | |

|North Carolina State Highway Patrol, | | |

|Respondent. | | |

THIS MATTER came on for hearing before Beecher Gray, Administrative Law Judge, on December 9, 2009, in Bolivia, North Carolina.

APPEARANCES

For Petitioner: Robert C. Bacon, pro se

1586 Jenkins Road

Whiteville, NC 28472

For Respondent: Sebastian Kielmanovich

Assistant Attorney General

North Carolina Department of Justice

Crime Control Section

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

WITNESSES

The following witness appeared and testified on behalf of Petitioner:

Robert C. Bacon

The following witness appeared and testified on behalf of Respondent:

Charles Dabbs

Weigh Station Operator

North Carolina State Highway Patrol

Department of Crime Control and Public Safety

EXHIBITS

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

1. Schedule 1 (Form 2290) of Heavy Highway Vehicles for the period July 1, 2007, through June 30, 2008, receipted by the IRS on August 18, 2008

2. Heavy Highway Vehicle Use Tax Return, Form 2290, receipted by the IRS on August 27, 2008

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

3. Citation No. 3144306-2

4. Citation No. 4006410-7

5. North Carolina Division of Motor Vehicles Registration Certification in reference to license plate number LX1624

ISSUES

1. Whether Respondent exceeded its authority, acted erroneously, or failed to act as required by statute or law in issuing a penalty for expired registration for Petitioner’s power unit.

2. Whether Respondent was arbitrary or capricious in issuing Petitioner an expired registration penalty.

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper. Petitioner in this case is Robert C. Bacon. Petitioner is a resident of Columbus County, North Carolina. Since his retirement from active military duty, Petitioner has operated as a motor carrier doing business as Bacon and Bacon Transport.

2. Respondent is an agency charged with the regulation and enforcement of commercial motor vehicles, oversize and overweight vehicles, motor carrier safety, and mobile and manufactured housing.

3. On September 30, 2008, at approximately 3:04 p.m., Petitioner’s tractor and semi-trailer pulled into the Hillsborough Weigh Station on I-85 North in Orange County, North Carolina.

4. Weigh Station Operator Charles Dabbs (“WSO Dabbs”) inspected Petitioner’s vehicle and found that the registration of Petitioner’s power unit had been canceled for failure to submit proof of the Federal Heavy Highway Tax to the North Carolina Division of Motor Vehicles (“NCDMV”), under the requirements of N.C. Gen. Stat. § 20-88(j).

5. WSO Dabbs issued Petitioner Citation No. 3144306-2, under the provisions of N.C. Gen. Stat. § 20-118.3, in the amount of $163.20 for an axle group overweight violation and $1235.00 for expired vehicle license registration which had resulted in cancellation of Petitioner’s power unit license. All violations issued as a result of the September 30, 2009 inspection at the Hillsborough Weigh Station have been paid and satisfied by the carrier, Eagle Systems, Inc., for whom Petitioner was hauling on that day except for the expired registration, cancelled plate violation. The sole remaining issue in this contested case appeal is the penalty for Petitioner’s having an expired registration and cancelled license plate on his power unit on September 30, 2009.

6. In this case, on September 30, 2008, Petitioner’s vehicle was operating in the State of North Carolina with a cancelled license plate. The license plate was cancelled on August 13, 2008 because of Petitioner’s failure to submit proof of payment of the Heavy Highway Vehicle Use Tax to the North Carolina Division of Motor Vehicles (NCDMV). (Respondent’s Exhibit 3)

7. On March 12 and June 12, 2008, NCDMV requested in writing that Petitioner submit Form 2290 indicating that the Heavy Highway Vehicle Use Tax had been paid. (Respondent’s Exhibit 3) However, upon Petitioner’s failure to submit proof of payment of said tax, Petitioner’s vehicle license plate was cancelled on August 13, 2008. (Respondent’s Exhibit 3)

8. On August 15, 2008, the North Carolina Division of Motor Vehicles issued a letter advising Petitioner that license plate number LX1624 was cancelled on August 13, 2008.

9. Although Petitioner paid the tax in question at the IRS Office in Wilmington on August 18, 2008 prior to the issuance of Citation No. 3144306-2 (Petitioner’s Exhibit 2), Petitioner failed personally to ensure that proof of that payment was submitted to NCDMV, as required by N.C. Gen. Stat. § 20-88(j). The evidence in this case showed that Petitioner, upon paying the Heavy Vehicle Use Tax at the IRS Office in Wilmington, N. C., was assured by the IRS Office personnel that they would take care of the matter in Raleigh, which Petitioner believed in good faith was notification to NCDMV of the required proof of payment of the Heavy Vehicle Use Tax.

10. Petitioner initiated this contested case following Respondent’s determination to uphold Petitioner’s license penalty assessed in Citation No. 3144306-2

11. N.C. Gen. Stat. § 20-88(j) provides that:

[n]o heavy vehicle subject to the use tax imposed by Section 4481 of the Internal Revenue Code of 1954 (26 U.S.C. 4481) may be registered or licensed pursuant to G.S. 20-88 without proof of payment of the use tax imposed by that law. The proof of payment shall be on a form prescribed by the United States Secretary of Treasury pursuant to the provisions of 23 U.S.C. 141(d). (emphasis added)

12. Additionally, N.C. Gen. Stat. § 20-118.3, titled “[v]ehicle or combination of vehicles operated without registration plate subject to civil penalty” provides, in pertinent part, that

[a]ny vehicle or combination of vehicles being operated upon the highway of this State either by a resident or nonresident without having been issued therefor a registration plate by the appropriate jurisdiction shall be subject to a civil penalty equal to the North Carolina annual fee for the gross weight of the vehicle and in addition thereto the license fee applicable for the remainder of the current registration year, provided a nonresident shall pay the North Carolina license fee or furnish satisfactory proof of payment of required registration fee to its base jurisdiction. (emphasis added)

CONCLUSIONS OF LAW

1. All parties properly are before the Office of Administrative Hearings.

2. The subject matter of a contested case hearing in the Office of Administrative Hearings is the agency decision. Britthaven, Inc. v. North Carolina Dep’t of Human Resources, 118 N.C. App. 379, 382-383, 455 S.E.2d 455, 459, disc. review denied, 341 N.C. 418, 461 S.E.2d 754 (1995). The purpose of the hearing is to “determine whether 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. Since no statute provides otherwise, Petitioner has the burden of proof in this contested case. Holly Ridge Assocs., LLC v. N.C. Dep’t of Env’t & Natural Res., 176 N.C. App. 594, 609, 627 S.E.2d 326, 336-337 (2006). See also, Peace v. Employment Sec. Comm’n, 349 N.C. 315, 328, 507 S.E.2d 272, 281 (1998).

3. Respondent’s imposition of a civil penalty against Petitioner in the amount of $1,235.00, under N.C. Gen. Stat. § 20-118.3, based on the operation of his vehicle with a cancelled license plate, is supported by the evidence.

4. Petitioner failed to show that Respondent: (1) substantially prejudiced his rights; and (2) 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 his burden under N.C. Gen. Stat. §150B-23(a).

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby makes the following:

DECISION

Respondent’s decision to issue a civil penalty against Petitioner is supported by the evidence and is AFFIRMED. It is the recommendation of the undersigned that the Secretary of Crime Control and Public Safety exercise any discretion the Secretary inherently may have in reducing the amount of the penalty levied in this matter on the grounds that Petitioner was acting under a good faith belief that one unit of government, the IRS Office in Wilmington, had assured him that it was going to take care of the matter with Raleigh, believed by Petitioner to be the NCDMV, another unit of government.

NOTICE

The North Carolina Department of Crime Control and Public Safety will make the Final Decision in this contested case. Under 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 under N.C. Gen. Stat. § 150B-37.

ORDER

It hereby is 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 18th day of December, 2009.

______________________________

Beecher Gray

Administrative Law Judge

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