STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ORANGE 09 CPS 3996

TMC Transportation Inc.
Petitioner
vs.
North Carolina State Highway Patrol
Motor Carrier Enforcement Section
Respondent / )
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)))) / ORDER GRANTING SUMMARY JUDGMENT FOR RESPONDENT

Upon consideration of Respondent’s Motion for Summary Judgment, Petitioner’s response thereto, and for good cause shown, the undersigned hereby GRANTS Respondent’s Motion as follows:

APPEARANCES

For Petitioner: Alonzo Coleman, Jr.

Coleman, Gledhill, Hargrave & Peek, PC

PO Drawer 1529

Hillsborough, NC 27278

For Respondent: Sebastian Kielmanovich

Assistant Attorney General

NC Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Whether there are genuine issues of material fact in this contested case, and if so, whether Respondent is entitled to summary judgment as a matter of law?

FINDINGS OF FACT

1. On February 13, 2009, Petitioner’s truck-tractor and semi-trailer, bearing license plate numbers SD0985 (IA) and RK-6421 (IA), (“Petitioner’s vehicle”), entered the Hillsborough Weigh Station on I-85 North in Orange County, North Carolina.

2. Pursuant to N.C. Gen. Stat. § 20-118(b), Petitioner’s vehicle was authorized to weigh up to 20,000 pounds per axle.

3. Weigh Station operator Richard Schofield weighed Petitioner’s vehicle and discovered that the fourth axle weighed 34,200 pounds, exceeding the statutory weight limitation by 14,200 pounds.

4. Petitioner admits that its driver stated to Operator Schofield that, “the airbags were flat,” “it looks like that one of the air bags have popped,” and that he heard a loud noise.

5. Due to the overweight violation, Schofield issued Petitioner Citation No. 3152281-6 for exceeding the statutorily authorized axle weight, and assessed Petitioner a $1320.00 penalty for such violation.

CONCLUSIONS OF LAW

1. This contested case is subject to dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rules 56 of the Rules of Civil Procedure, N.C. Gen. Stat. §§ 150B-33(b)(3a) and -36(d); and 26 NCAC 3 .0105 and .0114. 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 so without regard to the given labels.

2. Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). A movant may meet this burden “by proving that an essential element of the opposing party's claim is nonexistent, or by showing . . . that the opposing party cannot produce evidence to support an essential element of her claim or cannot surmount an affirmative defense which would bar the claim.” Collingwood v. G. E. Real Estate Equities, 324 N.C. 63, 66 (1989).

3. Article 3 of Chapter 20 of the North Carolina General Statutes regulates “The Size, Weight, Construction, and Equipment of Vehicles.” In particular, in Part 9, N.C. Gen. Stat. § 20-118(b) establishes axle weight limitations. N.C. Gen. Stat. § 20-118(e) prescribes civil penalties for operating a vehicle in violation of the axle weight limits, with such penalties being calculated on a graduated scale based on the pounds in excess of the limit. Specifically, N.C. Gen. Stat. § 20-118 provides that:

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

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

. . .

(e) Penalties. –

(1) Except as provided in subdivision (2) of this subsection, for each violation of the singleaxle or tandemaxle 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. 20119(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.

4. In the instant matter, on February 13, 2009, Petitioner’s truck-tractor and semi-trailer, bearing license plate numbers SD0985 (IA) and RK-6421 (IA), (“Petitioner’s vehicle”), entered the Hillsborough Weigh Station on I-85 North in Orange County, North Carolina. Pursuant to N.C. Gen. Stat. § 20-118(b), Petitioner’s vehicle was authorized to weigh up to 20,000 pounds per axle. However, axle 4 of Petitioner’s vehicle weighed 34,200 pounds, thereby exceeding the statutory weight limitation by 14,200 pounds.

5. There are no genuine issues of material fact in this case that axle 4 of Petitioner’s vehicle exceeded the statutorily authorized weight limitation, and thus, violated N.C. Gen. Stat. § 20-118(b).

6. Respondent correctly assessed a $1320.00 civil penalty against Petitioner for such violation. As there are no genuine issues of material facts remaining in this case, Respondent is entitled to summary judgment as a matter of law.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby GRANTS Respondent’s Motion for Summary Judgment.

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. 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 17th day of September, 2009.

______

Melissa Owens Lassiter

Administrative Law Judge

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