COUNTY OF CARTERET / IN THE OFFICE OF ADMINISTRATIVE HEARINGS
FILE NO. 08 CPS 2546
TONY RAY ROSS,
Petitioner,
v.
NORTH CAROLINA STATE HIGHWAY PATROL
Respondent. / )
)
)
)
)
)
)
)
)
)
) / DECISION
THIS MATTER came on for hearing before the Honorable Donald W. Overby, Administrative Law Judge, on August 17, 2009, in New Bern, North Carolina.
APPEARANCES
For Petitioner: R. Christopher Daniels
The Chris Daniels Law Firm, PLLC
1129 Western Boulevard
Jacksonville, NC 28546
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 witnesses appeared and testified on behalf of Petitioner:
1. Tony Ray Ross
2. Brian Johnson
The following witness appeared and testified on behalf of Respondent:
1. Trooper Jonathan Hammonds, North Carolina State Highway Patrol, Department of Crime Control and Public Safety
EXHIBITS
The following exhibits were admitted into evidence on behalf of Respondent:
1. Citation No. 4006146-7
2. Agency decision letter issued September 26, 2008
3. Letter of Protest and boat manufacturer’s specifications
ISSUES
1. Whether Respondent exceeded its authority, acted erroneously and/or failed to act as required by statute or law in issuing Petitioner a permit penalty.
2. Whether Respondent was arbitrary or capricious in issuing Petitioner a permit penalty.
FINDINGS OF FACT
1. Petitioner in this case is Tony Ray Ross. Petitioner is a resident of Beaufort, North Carolina.
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 October 31, 2008, Petitioner initiated this contested case following Respondent’s determination to uphold Petitioner’s permit penalty. (Respondent’s Exhibit 2)
4. On January 12, 2009, Respondent propounded discovery on Petitioner pursuant to N.C. R. Civ. P. 26 and 36, and 26 NCAC 03.0112. Petitioner was required to respond to Respondent’s discovery within fifteen (15) days.
5. On February 2, 2009, due to Petitioner’s failure to respond to discovery, Respondent submitted a courtesy letter to Petitioner indicating that responses to discovery were due on or before Friday, January 30, 2009, which included three (3) days for mailing and the weekend.
6. On February 11, 2009, Respondent filed a Motion for Summary Judgment, Motion to Compel and/or Dismiss, pursuant to N.C. Gen. Stat. §1A-1, Rule 36(a) and 26 NCAC 03.0112, due to Petitioner’s failure to respond to discovery.
7. On March 19, 2009, Petitioner filed a response to Respondent’s motion without providing responses to the discovery propounded on January 12, 2009.
8. On August 22, 2008, Trooper Jonathan Hammonds with the North Carolina State Highway Patrol observed Petitioner’s vehicle, bearing license plate number CA2138 (NC), traveling in Robeson County, North Carolina.
9. On August 22, 2008, at approximately 6:50 a.m., Trooper Hammonds stopped Petitioner’s vehicle to conduct an inspection. Petitioner’s vehicle was hauling a boat.
10. Petitioner contends that Trooper Hammonds did not actually measure the boat. The boat did not have an external ladder, but entry could have been gained by using the transom and the engines to step into the cockpit. The time lapse from beginning the stop until Petitioner was released was nine minutes, and, even though a brief period of time, would have been ample time for the trooper to have taken measurements.
11. Petitioner told Trooper Hammond that the boat was thirty (30) feet long. Trooper Hammonds measured Petitioner’s boat dimensions. His measurements did not exactly correspond to manufacturers specifications, but were within reason. The boat was more than 102 inches (eight (8) feet and six (6) inches) wide at the stern.
12. On August 22, 2008, at 6:50 a.m., Petitioner did not have an oversize permit for operating and hauling of its oversize load in North Carolina.
13. On August 22, 2008, at approximately 6:50 a.m., Trooper Hammonds issued Petitioner Citation No. 4006146-7, in the amount of $500.00, for operating without the issuance of a required permit. (Respondent’s Exhibit 2)
14. On August 30, 2008, Petitioner filed a letter of protest with Respondent challenging the issuance of Citation No. 4006146-7. In his protest, Petitioner stated that the beam of the boat was nine (9) feet and six (6) inches. Additionally, Petitioner included the manufacturer’s specifications confirming that the beam of the boat was nine (9) feet and six (6) inches. (Respondent’s Exhibit 3)
15. Petitioner contends that equity should be considered in that the applicable statute was repealed shortly after he was cited, and that North Carolina no longer requires permits for boats to be hauled on the streets and highways of the state.
CONCLUSIONS OF LAW
- 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.
- Pursuant to N.C. Gen. Stat. §1A-1, Rule 36(a) and 26 NCAC 03.0112, all matters for which an admission is requested is deemed admitted and conclusively established, unless a written answer or objection is made within fifteen (15) days after service of the request.
- 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 “agency decision”, which is the subject matter of this case, was based on two (2) pieces of evidence presented and available during the review period: (1) Trooper Hammonds finding that the load of Petitioner’s vehicle had a width in excess of 102 inches, and (2) Petitioner’s protest submitted on August 30, 2008 conceding that the boat’s width was over 102 inches. (Respondent’s Exhibits 2 and 3)
- The purpose of the instant 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.” Britthaven, Inc., 118 N.C. App. at 382-383, 455 S.E.2d at 459 (emphasis added). “The judge determines these issues based on a hearing limited to the evidence that is presented or available to the agency during the review period.” Id.
6. On August 22, 2008, Petitioner’s vehicle was operating a load with a total outside width in excess of eight (8) feet and six (6) inches, or one hundred and two (102) inches, in violation of N.C. Gen. Stat. § 20-116 (2007), and without the issuance of a special permit, as required by N.C. Gen. Stat. § 20-119. (Respondent’s Exhibit 1 and 3)
7. N.C. Gen. Stat. § 20-116(a) (2007) provides, in pertinent part, that “[t]he total outside width of any vehicle or the load thereon shall not exceed 102 inches.”
8. “[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.” N.C. Gen. Stat. § 20-119(d)
9. Unless a statute provides otherwise, the petitioner has the burden of proof in all contested cases. 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).
10. Petitioner failed to present any evidence at the instant contested case hearing concerning the width of the load in question other than that the boat was indeed more than 102 inches wide.
11. On August 22, 2008, Petitioner’s vehicle was being operated without the issuance of a permit in excess of the statutory width limitation established in N.C. Gen. Stat. § 20-116 (2007).
12. Although the assessment of a civil penalty by Respondent is discretionary, Respondent’s imposition of a civil penalty on Petitioner in this case in the amount of $500 based on Petitioner’s vehicle operation without the issuance of a permit was appropriate, and was not arbitrary or capricious.
13. Because the preponderance of the evidence establishes that Petitioner’s vehicle was being operated in excess of the statutory width limitation, Petitioner has failed to carry his burden under N.C. Gen. Stat. § 150B-23(a)
14. 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 its burden under N.C. Gen. Stat. §150B-23(a).
15. The Office of Administrative Hearings is not a court of equity, and is without jurisdiction to grant equitable relief.
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby makes the following:
DECISION
It is hereby Recommended that Respondent’s decision to uphold Petitioner’s citation for operation without the issuance of a required permit be AFFIRMED on grounds that the Petitioner failed to carry his burden under N.C. Gen. Stat. §150B-23(a) and the preponderance of the evidence establishes that the load of Petitioner’s vehicle was in excess of one hundred and two (102) inches.
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.
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 6th day of October, 2009.
______
Donald W. Overby Administrative Law Judge
Administrative Law Judge
5