STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF FRANKLIN 09 CPS 2361

Covenant Trucking compnay Inc.
Petitioner
vs.
NC Dept of Crime Control and Public Safety
Respondent / )
))
)))) / DECISION

THIS MATTER came on for hearing before the Honorable Eugene J. Cella, Temporary Administrative Law Judge, on July 27, 2009, in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Wendy C. Jones

Vice President

Covenant Trucking Company, Inc.

Post Office Box 1000

Youngsville, NC 27596

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:

Howard Morton

The following witness appeared and testified on behalf of Respondent:

Trooper Jeff B. Pleasants

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. 3148662-4

2.  Agency decision letter indicating Petitioner’s right to appeal

3.  Photographs of Cass Holt Road, Wake County, North Carolina

Exhibits 1, 2, 3, Pictures of Cass Holt Road were admitted into evidence on behalf of Petitioner.

ISSUES

1.  Whether Respondent exceeded its authority, acted erroneously and/or failed to act as required by statute or law in issuing an overweight penalty.

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

FINDINGS OF FACT

1.  Petitioner in this case is Covenant Trucking Company, Inc. Petitioner is a legal entity with its principal place of business in Wake County, 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.  Petitioner initiated this contested case following Respondent’s determination to uphold Petitioner’s overweight citation and penalty.

4.  Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received notice of the hearing and Petitioner received Respondent’s letter constituting agency action and stating Petitioner’s right to appeal.

5.  On December 16, 2008, the North Carolina Department of Transportation had established a portion of Cass Holt Road in Wake County, North Carolina, as a light traffic road, pursuant to N.C. Gen. Stat. § 20-118(b)(4).

6.  The Department of Transportation, by designating a portion of Cass Holt Road as a light traffic road, placed a weight limitation of 6 ½ tons or 13,000 pounds per axle.

7.  The Department of Transportation placed a sign on Cass Holt Road, that was white in color with black lettering, that stated “AXLE WEIGHT LIMIT 6 ½ TONS.”

8.  On December 16, 2008, Petitioner’s vehicle, bearing license plate number ZB22633(NC), was operating on Cass Holt Road in Wake County, North Carolina.

9.  Petitioner’s vehicle was stopped by North Carolina State Highway Patrol Trooper Jeff B. Pleasants on Cass Holt Road, past the 6 ½ ton weight limit sign.

10.  Petitioner’s vehicle was operating in the portion of Cass Holt Road designated as a light traffic road without the issuance of any special permit.

11.  Trooper Pleasants weighed Petitioner’s vehicle. Petitioner’s vehicle had three (3) engaged axles. Axle 1 of Petitioner’s vehicle weighed 23,800 pounds. Axle 2 and 3 of Petitioner’s vehicle weighed 24,600 pounds each. Axle group 1 through 3 of Petitioner’s vehicle weighed 73,000 pounds, and the distance from the extremes of axle 1 through 3 was 25 feet.

  1. Trooper Pleasants issued Petitioner Citation No. 3148662-4, pursuant to N.C. Gen. Stat. § 20-118(b)(3) and (4).

CONCLUSIONS OF LAW

  1. 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.
  1. 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 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.” Id. 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).

3.  Respondent has the authority and responsibility to regulate and enforce the laws pertaining to commercial and overweight motor vehicles.

4.  N.C .Gen. Stat. § 20-118 (b)(4) provides, in pertinent part, that

[t]he Department of Transportation may establish light-traffic roads and further restrict the axle weight limit on such light-traffic roads lower than the statutory limits. . . . All such roads so designated shall be conspicuously posted as light-traffic roads and the maximum axle weight authorized shall be displayed on proper signs erected thereon.

5.  The weight limitation on Cass Holt Road is 6 ½ tons or 13,000 pounds per axle.

6.  Petitioner’s vehicle exceeded the light traffic road weight limitation on Cass Holt Road by:

a.  10,800 pounds on axle 1

b.  11,600 pounds on axle 2

c.  11,600 pounds on axle 3

  1. N.C .Gen. Stat. § 20-118 (b)(3) provides, in pertinent part, that

The gross weight imposed upon the highway by any axle group of a vehicle or combination of vehicles shall not exceed the maximum weight given for the respective distance between the first and last axle of the group of axles measured longitudinally to the nearest foot as set forth in the following table:

Distance Between
Axles * / Maximum Weight in Pounds for any Group of Two or More Consecutive Axles
3 Axles
25 / 54,500

* Distance in Feet Between the Extremes of any Group of Two or More Consecutive Axles.

8.  Petitioner’s vehicle axle group 1 through 6 weighed 73,000 pounds; thereby exceeding the statutory weight limitation by 18,500 pounds.

9.  Respondent’s imposition of a civil penalty on Petitioner in the amount of $4,610.00, based on exceeding the light traffic road weight limitation and the axle group statutory weight limitation, was appropriate.

  1. Petitioner failed to show that Respondent: (1) substantially prejudiced her 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 her 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 impose a civil penalty on Petitioner is AFFIRMED on grounds that the Petitioner failed to carry its burden under N.C. Gen. Stat. §150B-23(a) and the preponderance of the evidence establishes that Petitioner exceeded the light traffic road weight limitation and axle group weight limitations.

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).

This the 11th day of August, 2009.

______

Eugene J. Cella

Temporary Administrative Law Judge


A copy of the foregoing was mailed to:

Wendy Jones

Covenant Trucking compnay Inc.

PO Box 1000

Youngsville, NC 27596

PETITIONER

Sebastian Kielmanovich

Assistant Attorney General

NC Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ATTORNEY FOR RESPONDENT

This the ______day of ______, 2009.

______

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

(919) 431 3000

Fax: (919) 431-3100

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