State of North Carolina s98

STATE OF NORTH CAROLINA IN THE OFFICE OF COUNTY OF BEAUFORT ADMINISTRATIVE HEARINGS 09 CPS 2509 Gregory Vett Arnold ) Petitioner ) ) vs. ) DECISION ) NC State Highway Patrol ) Respondent )

THIS MATTER came on for hearing before Beecher R. Gray, Administrative Law Judge, on

August 19, 2009, in New Bern, North Carolina.

APPEARANCES

For Petitioner: Gregory V. Arnold, Pro Se 533 Spring Road Washington, NC 27889

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

Petitioner did not call any witnesses to testify.

The following witness appeared and testified on behalf of Respondent:

Trooper Jonathan Hammonds, North Carolina State Highway Patrol, Department of Crime Control and Public Safety

EXHIBIT

The following exhibit was admitted into evidence on behalf of Respondent: Citation No. 4007306-6

1 ISSUES

Whether Respondent’s decision to levy a civil penalty of $500 against Petitioner for an overwidth violation on I-95 in Robeson County is supported by the evidence.

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. Petitioner in this case is Gregory V. Arnold, a resident of Washington, North Carolina.

3. 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.

4. On February 16, 2009, Petitioner’s Ford F-250 pickup, bearing license plate number BL3408 (NC), was pulling a trailer-type, three section disc harrow with the outer sections in the folded, transport position on northbound I-95, in Robeson County, North Carolina.

5. On February 16, 2009 at approximately 10:15 a.m., North Carolina State Highway Patrol Trooper Jonathan Hammonds stopped Petitioner’s vehicle on I-95 North near I-74, in Robeson County, North Carolina.

6. Trooper Hammonds measured Petitioner’s load dimensions. Petitioner’s disc harrow measured 13 feet and 6 inches (162 inches) in width.

7. On February 16, 2009, at 10:15 a.m., Petitioner did not have an oversize permit for pulling an overwidth load on I-95 in North Carolina.

8. On February 16, 2009, at approximately 10:15 a.m., Trooper Hammonds issued to Petitioner a North Carolina State Highway Patrol Permit Violation Civil Fine Assessment for $500.00, Citation No. 4007306-6, for pulling an overwidth disc harrow without first obtaining an overwidth permit. Petitioner stated to Trooper Hammonds that he was under the long held belief and practice that his operation that morning was covered under a farm implement exemption in the oversize permit requirements. (Respondent’s Exhibit 1)

9. On April 7, 2009, Petitioner initiated this contested case following Respondent’s determination to uphold the civil fine assessed against Petitioner.

10. N.C. Gen. Stat. § 20-116(a) provides, in pertinent part, that “[t]he total outside width of any vehicle or the load thereon shall not exceed 102 inches.”

11. North Carolina General Statute 20-119(d) provides, in pertinent part:

2 [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.

12. N.C. Gen. Stat. § 20-116(j) provides that:

[n]othing in this section shall be construed to prevent the operation of self-propelled grain combines or other farm equipment self-propelled, pulled, or otherwise, not exceeding 25 feet in width on any highway, except a highway or section of highway that is a fully controlled access highway or is a part of the National System of Interstate and Defense Highways.

13. I-95 in Robeson County, North Carolina is a part of the National System of Interstate and Defense Highways and is a fully controlled access highway.

CONCLUSIONS OF LAW

1. All parties properly are before the Office of Administrative Hearings. 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.

2. The farm implement exemption under G.S. 20-116(j) is not available to Petitioner under the facts of this case because the exemption does not apply to I-95, a component of the Interstate Highway system.

3. Respondent’s imposition of a civil fine against Petitioner in the amount of $500 based on Petitioner’s vehicle operation without first obtaining an overwidth permit is authorized by Chapter 20 of the General Statutes of North Carolina.

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

DECISION

Respondent’s decision to issue a $500.00 Civil Fine against Petitioner for operation of his pickup truck on I-95 in Robeson County, North Carolina while pulling a farm implement disc harrow which was 162 inches wide without first obtaining a permit authorizing him to exceed the statutory 102 inch width limit is supported by the evidence and is AFFIRMED.

3 NOTICE

The North Carolina Department of Crime Control and Public Safety will make a Final Decision in this contested case. Under 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 under N.C. Gen. Stat. § 150B-37.

It hereby is 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).

IT IS SO ORDERED.

This the 25th day of August, 2009.

______Beecher R. Gray Administrative Law Judge Administrative Law Judge