STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF WAKE |IN THE OFFICE OF ADMINISTRATIVE HEARINGS

FILE NO. 09 CPS 2385 | |

| |) | |

|JAMES CHRISTIAN LAUBACH AND THE AUTO BARN, INC., |) | |

| |) | |

|Petitioner, |) | |

|v. |) |DECISION GRANTING SUMMMARY JUDGMENT FOR RESPONDENT |

| |) | |

|NORTH CAROLINA STATE HIGHWAY PATROL, |) | |

| |) | |

|Respondent. |) | |

| |) | |

| |) | |

Respondent’s Motion for Summary Judgment came on to be heard before the undersigned Chief Administrative Law Judge in the above-captioned action. Oral argument on Respondent’s Motion for Summary Judgment was heard in the Office of Administrative Hearings on July 23, 2009. Participating at the hearing were Steve Cline, agent for and on behalf of Petitioner; and Sebastian Kielmanovich, Assistant Attorney General, counsel for Respondent.

After considering Respondent’s Motion, the documents filed therewith and contained in the record, and the oral arguments of the parties, the undersigned hereby GRANTS Respondent’s Motion as follows:

UNCONTROVERTED FACTS

1. On February 18, 2009, at 10:06 a.m., Petitioner’s vehicle, bearing license plate numbers 443F90 (MD) and 84812156 (MD), pulled into the Halifax Weigh Station on I-95 South for a weight inspection.

2. Upon weighing Petitioner’s vehicle and reviewing its registration, it was discovered that the fourth and fifth tandem-axles of Petitioner’s vehicle weighed 39,680 pounds, and it was not apportionately registered to operate in North Carolina.

3. As a result, Petitioner was issued Citation No. 3152509-0, for operating in excess of the statutory weight limitations and without being apportionately registered to operate in North Carolina, in the amount of one thousand three hundred and two dollars and 20/100 ($1,302.20).

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has the requisite subject matter and personal jurisdiction of this contested case and the Motion filed by Respondent.

2. Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file . . . 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). The moving party may meet the burden of proving the lack of any triable issue “by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Collingwood v. G. E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).

3. N.C. Gen. Stat. § 20-118(b)(2) states that “[t]he tandem-axle weight of a vehicle or combination of vehicles shall not exceed 38,000 pounds.”

4. N.C. Gen. Stat. § 20-118(e)(1) establishes the penalties for axle violations: “[F]or each violation of the . . . tandem-axle weight limits set in subdivision . . . (b)(2) . . . of this section . . . the Department of Crime Control and Public Safety shall assess a civil penalty against the owner or registrant of the vehicle.” N.C. Gen. Stat. § 20-118(e)(1).

5. N.C. Gen. Stat. § 20-86.1, titled “International Registration Plan” establishes that “[t]he registration fees required under this Article may be proportioned for vehicles which qualify and are licensed under the provisions of the International Registration Plan.” N.C. Gen. Stat. § 20-86.1(a).

6. “The [International Registration] Plan provides for payment of Apportionable Fees on the basis of the proportion of Total Distance operated in all Jurisdictions by the Fleet of which a Vehicle is part.” See International Registration Plan with Official Commentary, available at (last visited June 15, 2009).

7. “Apportionable vehicles used or intended for use in two or more jurisdictions that allocate or proportionally register vehicles for the transportation of persons or property, unless excepted by this Section, are required to be registered in accordance with the provisions of the International Registration Plan.” 19A N.C.A.C. 3E.0401.

8. The penalty applicable for failing to apportionately register a vehicle in North Carolina is delineated in N.C. Gen. Stat. § 20-118.3. This statute prescribes that said vehicle “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.” N.C. Gen. Stat. § 20-118.3.

9. In the instant matter, on February 18, 2009, Petitioner’s vehicle was being operated in North Carolina in excess of the statutory weight limitations on its fourth and fifth tandem-axles by 1,680 pounds, and without being apportionately registered.

10. Respondent’s imposition of a civil penalty on Petitioner in the amount of one thousand three hundred and two dollars and 20/100 ($1,302.20), based on the operation of Petitioner’s commercial motor vehicle in excess of the statutory weight limitations and without being apportionately registered, was established according to the foregoing statutory and regulatory authority.

11. Petitioner conceded both in pleadings and argument that there was no defense to the imposition of this civil penalty but argued that there were extenuating circumstances that warranted consideration of a reduction in the full penalty. The undersigned is not cognizant of any legal authority that provides the undersigned with discretion to reduce or modify the imposition of the mandatory penalty, notwithstanding the merits of the grounds for the imposition of a lesser penalty.

DECISION

IT IS THEREFORE ORDERED, that Respondent’s Motion for Summary Judgment is GRANTED and the imposition of the $1,302.20 civil penalty for Citation No. 3152509-0 is AFFIRMED.

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 28th day of July, 2009.

________________________

Julian Mann, III

Chief Administrative Law Judge

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

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

Google Online Preview   Download