STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF JOHNSTON 03 CPS 2247
COX REPAIR SERVICE,ALVIN E. COX and LLOYD J. COX,
Petitioners,
v.
N. C. STATE HIGHWAY PATROL, TROOPER C.,
Respondent. / )
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DECISION
This matter came on for hearing before the undersigned administrative law judge on March 8, 2004 in Lillington, North Carolina. Petitioner filed a Post-Hearing Submission on March 30, 2004. Respondent filed a Proposed Recommended Decision on March 30, 2004.
APPEARANCES
For Petitioner: Alvin E. Cox, pro se
Lloyd J. Cox, pro se
568 West Market Street
Smithfield, North Carolina 27577
For Respondent: Joseph P. Dugdale
Assistant Attorney General
N. C. Department of Crime Control and Public Safety
4701 Mail Service Center
Raleigh, NC 27699-4701
ISSUE
Whether Respondent exceeded its authority or jurisdiction by removing Petitioner from the Highway Patrol wrecker rotation list for a period of ninety (90) days.
EXHIBITS
The following exhibits were admitted into evidence: Respondent’s Exhibits 1, 2, (3), 4, 5, 6, 8, 9, 1 0, 11, 12, 13, 15, 17, 18, 19, 20, and 23.
Based upon the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following:
FINDINGS OF FACT
1. The Highway Patrol maintains a wrecker rotation list within each district of each Troop. Wrecker services included on the list are called by the Highway Patrol when a wrecker service is needed and the owner/operator of the disabled or wrecked vehicle is either unavailable or has no preference as to which wrecker service is called.
2. The Highway Patrol does not charge any fee for maintaining this list, as it is maintained as a public service and primarily intended to enable the road to be cleared in a safe, timely and efficient manner. The system is designed to assist the Patrol in performing its traffic safety functions.
3. The rules related to the maintenance of the wrecker rotation system are published in the North Carolina Administrative Code at 14A NCAC 09H.0301 et seq.
4. A person seeking inclusion on the wrecker service list must complete a wrecker application form, pass inspection, and abide by wrecker rotation rules specifically enumerated in 14A NCAC 09H.0321.
5. A specific requirement on the list is: “Upon request or demand, the rotation wrecker shall return personal property stored in or with a vehicle, whether or not the towing, repair, and/or storage fee on the vehicle has been or will be paid.” 14A NCAC 09H.0321(22).
6. Failure to adhere to the requirements in 14A NCAC 09H.0301 may result in sanctions listed under 14A NCAC 09H.0323 and hearing procedures listed under 14A NCAC 09H.0324.
7. Petitioner, Cox Repair Service, has been on the wrecker rotation list in Johnston County for more than thirty (30) years and, by his own admission, were at all relevant times aware of the Highway Patrol Rules as published in the Administrative Code.
8. On October 19, 2003, Petitioner received a Highway Patrol rotation wrecker call to clear a tractor trailer from the roadway on I-95 in Johnston County. The tractor trailer was hauling a perishable load of frozen meat, valued at approximately $125,000.00. Petitioner was able to upright and seal the trailer to salvage the perishable cargo, which was subsequently removed to Petitioner’s place of business. The tractor trailer was owned by Barros Express, Inc. and the cargo was owned by Dutchland Meats.
9. On October 21, 2003, the Highway Patrol received a call from Mr. Tom Segall of Dutchland Meats, complaining that Cox Repair Service refused to release the cargo without first being paid $10,490.00 for its services in towing, recovering and storing the vehicle and cargo.
10. F/Sgt M. J. Rivenbark, who is responsible for overseeing the wrecker rotation system for Johnston County, contacted Alvin Cox by telephone and told him that he could not, pursuant to Highway Patrol Policy, condition release of the cargo on being paid his towing and storage fee because the cargo was “personal property” and must be released upon demand. Alvin Cox still refused to release the cargo without first being paid for his services.
11. F/Sgt Rivenbark instructed Trooper J. J. Creech to meet him at Cox Repair Service with a copy of the Highway Patrol regulations. F/Sgt Rivenbark, in the presence of Trooper Creech, attempted to explain the Highway Patrol policy to both Alvin Cox and his brother Lloyd Cox. Alvin Cox stated the cargo was not “personal property” and that he would not release it before he was paid. F/Sgt Rivenbark informed Alvin and Lloyd Cox that unless they agreed to comply with Highway Patrol policy, he would have no choice but to remove them from the wrecker rotation list.
12. Later that evening, Petitioner released the cargo to its owner, Dutchland Meats, but only after receiving payment from Dutchland Meats in the amount of $8,000.00.
13. F/Sgt Rivenbark sent written notification to Petitioner, informing him that he was being removed from the Highway Patrol wrecker rotation list for a period of ninety (90) days based on his refusal to return personal property upon demand. R.Ex. #3. Petitioner requested and was granted a hearing. R.Ex. #4, 5. He later appealed to Captain M. R. Johnson, the Troop C Troop Commander, at which time his ninety (90) day suspension was upheld. R.Ex. #6.
14. Petitioner was removed from the Highway Patrol wrecker rotation list for a period of ninety (90) days, beginning on January 1, 2004. He has been eligible for reinstatement since March 1, 2004, but will not be put back on the list unless he applies for reinstatement and agrees to comply with all of the Highway Patrol regulations pertaining to the wrecker rotation system.
15. Petitioner does not contest the authority of the Highway Patrol to regulate its rotation wrecker list, to impose sanctions for violations or the procedure used in this case. Instead, Petitioners’ sole argument is that the perishable cargo is not “personal property” and that, therefore, he had a lawful right to hold the cargo until he received payment for his services.
16. Captain E. E. VunCannon, Director of Inspections, oversees administration of rotation wrecker policy statewide. “Cargo” is considered “personal property” statewide.
17. The cargo consisting of approximately $125,000.00 in frozen meat, held by Petitioner on October 21, 2003 was “personal property” other than a motor vehicle and subject to release upon request or demand pursuant to 14A NCAC 09H.0321(22).
CONCLUSIONS OF LAW
The parties are before the Office of Administrative Hearings. Petitioner, Cox Repair Service, willfully refused to return personal property upon request or demand in violation of 14A NCAC 09H.0321(22). Respondent did not exceed its authority or jurisdiction by removing Petitioner from the Highway Patrol wrecker rotation list for a period of ninety (90) days.
DECISION
Respondent’s decision to remove Petitioner from the Highway Patrol wrecker rotation list for a period of ninety (90) days is supported by the evidence and is affirmed.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B036(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the North Carolina State Highway Patrol.
This the 29th day of April, 2004.
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Beryl E. Wade