State of North Carolina in the Office Of s7

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 08 CPS 1541

S. L. COUCH HEAVY TRANSPORT, LLC. ) Petitioner ) vs. ) ) N.C. DEPT. OF CRIME CONTROL AND ) DECISION GRANTING PUBLIC SAFETY, DIVISON OF STATE ) SUMMARY JUDGMENT HIGHWAY PATROL, MOTOR CARRIER ) ENFORECEMENT SECTION, ) Respondent

THIS MATTER comes before the Honorable Joe Webster, Administrative Law Judge, presiding upon cross Motions for Summary Judgment Filed by Petitioner, S. L. Couch Heavy Transport LLC. and the Respondent, North Carolina Department of Crime Control and Public Safety, Division of State Highway Patrol in the above captioned case.

After considering the parties motions, the documents filed therewith and contained in the record as a whole, the Court finds that there is no genuine issue of material fact and disposition of this matter pursuant to Rule 56 of the North Carolina Rules of Civil Procedure is appropriate.

NOW THEREFORE, the Court makes the following conclusions of law

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has subject matter and personal jurisdiction in this contested case. The parties received proper notice of the hearing in this matter.

2. Petitioner was not operating its vehicle in compliance with its special permit, Single Trip Permit # 803108I038, because petitioner was traveling after sunset as authorized by its special permit.

3. The North Carolina State Highway Patrol exceeded its authority and failed to act as required by law because there is no legal authority to impose an assessment for Petitioner’s vehicle as overweight by calculating penalties based on the statutory scheme set forth in N.C. Gen. Stat. § 20-118 when he has lawfully acquired a special permit and is in compliance with the weight requirements of that permit.

4. The North Carolina Court of Appeals recently held that “[i]f the legislature intended to impose an additional weight penalty against a special permit holder as if that permit holder had no permit at all, then the language of section 20-119 must be clarified to relate to that intent.” Daily Express, Inc. v. North Carolina Dep’t of Crime Control and Public Safety, Div. of State Highway Patrol, No. 09-562, slip op. at 5 (N.C. App. Feb. 3, 2009). 5. Respondent’s assessment of a civil penalty to Petitioner in the amount of $9,410.00 was not within its statutory authority.

IT IS THEREFORE ORDERED that Respondent’s Motion for Summary Judgment is DENIED pertaining to Respondent’s unlawful assessment of a civil penalty in the amount of $9,410.00. Petitioner’s Motion for Summary Judgment is GRANTED.

ORDER AND NOTICE

The North Carolina Department of Crime Control and Public Safety will make the final decision in this contested case. N.C. Gen. Stat. § 150B-53(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its final decision, and adopting and/or not adopting the findings of fact and decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a final decision in this case, it 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. N.C. Gen. Stat. § 150B-36(b)(3) requires the agency to serve a copy of its final decision to each party, and furnish a copy of its final decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699

This the _____ of February, 2009.

______Joe Webster Administrative Law Judge