-3-

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 09 CPS 2458

Walter D Cochran
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: Walter D. Cochran, Pro se

641 Kirkland Still Road

Hazlehurst, GA 31539

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:

Walter D. Cochran

The following witness appeared and testified on behalf of Respondent:

Brian T. Pate,

Weigh Station Operator

North Carolina State Highway Patrol

Department of Crime Control and Public Safety

EXHIBITS

The following exhibits were admitted into evidence on behalf of Petitioner:

1.  CAT Scale ticket issued on February 3, 2009

The following exhibits were admitted into evidence on behalf of Respondent:

2.  Citation No. 3151276-7 issued on January 29, 2009

3.  Agency decision letter dated March 18, 2009

4.  Scale calibration certification by the North Carolina Department of Agriculture, issued on December 1, 2009, and by Central Carolina Scale, Inc., issued on February 8, 2009

ISSUES

1.  Whether Respondent exceeded its authority, acted erroneously and/or failed to act as required by statute or law in issuing Petitioner a civil penalty for failure to apportionately register its vehicle and for failure to display or carry a fuel tax decal.

2.  Whether Respondent was arbitrary or capricious in issuing Petitioner a civil penalty for failure to apportionately register its vehicle and for failure to display or carry a fuel tax decal.

FINDINGS OF FACT

1.  Petitioner in this case is Walter D. Cochran. Petitioner is a resident of Hazlehurst, Georgia.

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 penalty for failure to apportionately register its vehicle and for failure to display or carry a fuel tax decal.

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 a letter from Respondent constituting agency action and stating Petitioner’s right to appeal.

5.  On January 29, 2009 at approximately 6:25 p.m., Petitioner’s five-axle vehicle, bearing license plate numbers JN7B90 (GA) and TL31Y52 (GA), registered in the State of Georgia, pulled into the Halifax Weigh Station on I-95 South in Halifax County, North Carolina.

6.  In conducting an inspection, Weigh Station Operator Pate discovered that Petitioner’s vehicle was operating “for hire”, weighed 28,420 pounds, and did not display or carry a fuel tax decal.

7.  Petitioner was issued Citation No. 3151276-7, in the amount of $534.20, for failing to apportionately register its vehicle to operate in North Carolina, as required by N.C. Gen. Stat. § 20-86.1, 19A N.C.A.C. 3E.0401 and the Internal Registration Plan, and for failing to display or carry a fuel tax decal, as required by N.C. Gen. Stat. § 105-449.52.

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).
  1. 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).
  1. “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 http://www.irponline.org (last visited June 15, 2009).
  1. “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. “‘Apportionable vehicle’ as used in this Section means any vehicle, except recreational vehicles, vehicles displaying restricted plates, city pick up and delivery vehicles, buses used in transportation of chartered parties, and government-owned vehicles, used, or intended for use, in two or more member jurisdictions that allocate or proportionally register vehicles and is used for the transportation of persons for hire or designed, used or maintained primarily for the transportation of property and: (1) is a power unit having two axles and a gross vehicle weight or registered gross vehicle weight in excess of 26,000 pounds.” Id. (emphasis added).
  1. 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.
  1. Article 36B of Chapter 105 of the General Statutes titled “Tax on Carriers Using Fuel Purchased Outside State” provides in Section 449.38 that “[a] road tax for the privilege of using the streets and highways of this State is imposed upon every motor carrier on the amount of motor fuel or alternative fuel used by the carrier in its operations within this State.” N.C. Gen. Stat. § 105-449.52 establishes “[c]ivil penalties applicable to motor carriers” for failure to display the fuel tax decal. In particular, subsection (a) provides that “[a] motor carrier who does any of the following is subject to a civil penalty: (1) Operates in this State or causes to be operated in this State a motor vehicle that either fails to carry the registration card required by this Article or fails to display an identification marker in accordance with this Article. The amount of the penalty is one hundred dollars ($ 100.00).” N.C. Gen. Stat. § 105-449.52(a)(1) (emphasis added).
  1. In this case, on January 29, 2009, Petitioner’s five-axle vehicle, registered in Georgia, was operating in North Carolina weighing in excess of 26,000 pounds and without being apportionately registered to operate in the state, as required by Chapter 20 of the North Carolina General Statutes, Title 19A of the North Carolina Administrative Code, and the International Registration Plan. Additionally, Petitioner’s vehicle was being operated without carrying or displaying a fuel tax decal, as required by Chapter 105 of the North Carolina General Statutes.

9.  Respondent’s imposition of a civil penalty on Petitioner in the amount of $534.20 based on Petitioner’s vehicle operation in violation of the apportion registration and fuel tax decal requirements was appropriate.

  1. 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).

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby makes the following:

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, 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’s vehicle failed to comply with the apportion registration and fuel tax requirements.

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 14th day of August, 2009.

______

Eugene J. Cella

Temporary Administrative Law Judge