State of North Carolina s80

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF SURRY 08 CPS 2582

) RICKY F. SMITH, ) Petitioner, ) ) v. ) DECISION ) CRIME CONTROL AND PUBLIC ) SAFETY, ) Respondent. ) )

THIS MATTER came on to be heard before the Honorable J. Randall May, Administrative Law Judge, upon Petitioner’s Petition for a Contested Case filed in the above- captioned action. The hearing on the merits was held on July 20, 2009 in High Point, North Carolina.

APPEARANCES

For Petitioner: Ricky F. Smith, Pro Se 178 Dusty Lane Ararat, VA 24053

For Respondent: Sebastian Kielmanovich Assistant Attorney General North Carolina Department of Justice Crime Control Section 9001 Mail Service Center Raleigh, NC 27699

WITNESSES

The following witness appeared and testified on behalf of Petitioner:

Ricky F. Smith

The following witnesses appeared and testified on behalf of Respondent:

Trooper Eric M. Todd, Department of Crime Control and Public Safety, Division of North Carolina State Highway Patrol EXHIBITS

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

1. Citation No. 3144042-3 2. Excerpt of the International Registration Plan 3. Photograph of side view of Petitioner’s power unit 4. Photograph of side view of Petitioner’s trailer 5. Photograph of door of Petitioner’s power unit 6. Photograph of Petitioner’s power unit “farm vehicle” license plate 7. Agency decision letter indicating Petitioner’s right to appeal

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.

2. Whether Respondent was arbitrary or capricious in issuing Petitioner a civil penalty for failure to apportionately register its vehicle.

FINDINGS OF FACT

1. On September 25, 2008, Petitioner’s five-axle vehicle, registered in Virginia, bearing license plate numbers F69943(VA) and 935870TR(VA), was transporting short oak logs in Surry County, North Carolina.

2. On September 25, 2008, Petitioner’s vehicle was stopped by Trooper Eric M. Todd to conduct a motor carrier inspection. Trooper Todd weighed Petitioner’s vehicle and discovered that Petitioner’s vehicle weighed 79,180 pounds. Additionally, Trooper Todd discovered that Petitioner was transporting the commodities for a third-party and the vehicle was registered as a “farm vehicle.”

3. On September 25, 2008, Trooper Todd issued Petitioner Citation No. 3144042-3, for traveling in North Carolina without being apportionately registered to operate in the State, pursuant to N.C. Gen. Stat. § 20-86.1, 19A N.C.A.C. 3E .0401, and the Internal Registration Plan.

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.

2. 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. N.C. Gen. Stat. § 20-86.1, titled “International Registration Plan”, provides 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).

4. 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.” International Registration Plan, with Official Commentary, available at http://www.irponline.org/Publications/ThePlan/ (last visited April 1, 2009).

5. “ 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 . . . 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 . . . is a power unit having two axles and a gross vehicle weight or registered gross vehicle weight in excess of 26,000 pounds.” 19A N.C.A.C. 3E.0401(a)(1).

6. The applicable penalty for failing to apportionately register a vehicle is delineated in N.C. Gen. Stat. § 20-118.3. This section provides that “[a]ny vehicle or combination of vehicles being operated upon the highway of this State either by a resident or nonresident without having been issued therefore a registration plate by the appropriate jurisdiction 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, provided a nonresident shall pay the North Carolina license fee or furnish satisfactory proof of payment of required registration fee to its base jurisdiction.” N.C. Gen. Stat. § 20-118.3.

7. In this case, on September 25, 2008, Petitioner’s five-axle vehicle, registered in Virginia, was transporting property in North Carolina and weighed in excess of 26,000 pounds without an apportioned registration.

8. Respondent’s imposition of a civil penalty against Petitioner, in the amount of $611.30, based on the operation of Petitioner’s vehicle in North Carolina without an apportioned registration, was appropriate.

9. 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 his burden under N.C. Gen. Stat. §150B-23(a).

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 her burden under N.C. Gen. Stat. §150B-23(a) and the preponderance of the evidence establishes that Petitioner operated his vehicle in North Carolina without an apportioned registration.

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.

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).

IT IS SO ORDERED.

This the 6th day of August, 2009.

J. Randall May Administrative Law Judge