State of North Carolina s90

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF GUILFORD 08 CPS 2155

) Tracie Hildebrand, Ferraro Foods ) ) Petitioner, ) ) v. ) DECISION ) N. C. HIGHWAY PATROL (Formerly ) denominated N. C. Department of ) Transportation) ) ) Respondent. ) )

THIS MATTER came on for hearing before the Honorable J. Randall May, Administrative Law Judge, on January 28, 2009, in High Point, North Carolina.

APPEARANCES

For Petitioner: Tracie Hildebrand 1813 Baker Road High Point, NC 27263

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

PETITIONER’S WITNESS

The following witness appeared and testified on behalf of Petitioner:

1. Gregory Boyd Greene

RESPONDENT’S WITNESSES

The following witnesses appeared and testified on behalf of Respondent:

1. Trooper Richard C. Blackwell, North Carolina State Highway Patrol, Department of Crime Control and Public Safety 2. Tracie Hildebrand, DOT Coordinator, Ferraro Foods, Inc.

EXHIBIT

The following exhibit was admitted into evidence on behalf of Respondent:

1. Citation No. 3141690-2

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.

Upon consideration of Respondent’s Motion to Dismiss and/or in the Alternative Motion for Summary Judgment, which the undersigned took under advisement until the close of all the evidence, the undersigned hereby makes the following:

FINDINGS OF FACT

1. Petitioner in this case is Ferraro Foods, Inc. Petitioner is a corporation with its principal place of business in High Point, 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 overweight Citation No. 3141690-2 and penalty issued to Ryder Truck Rental, Inc.

4. On August 20, 2008, at approximately 7:23 a.m., tractor and semi-trailer, bearing license plate numbers LX3340 (NC) and T88A6K (NJ), entered into the Hillsborough Weigh Station on I-85 North, in Orange County, North Carolina.

5. On August 20, 2008, tractor and semi-trailer, bearing license plate numbers LX3340 (NC) and T88A6K (NJ), was owned by –and registered to– Ryder Truck Rental, Inc.

6. Tractor and semi-trailer, bearing license plate numbers LX3340 (NC) and T88A6K (NJ), had five (5) axles.

7. At the Hillsborough Weigh Station, North Carolina State Highway Patrol Trooper Richard C. Blackwell weighed all five axles of tractor and semi-trailer, bearing license plate numbers LX3340 (NC) and T88A6K (NJ). 8. Trooper Blackwell discovered that, pursuant to N.C. Gen. Stat. § 20-118(b)(1) and (3), tractor and semi-trailer, bearing license plate numbers LX3340 (NC) and T88A6K (NJ), exceeded the statutory weight limitations on axles 4 and 5, and on axle group 2 through 5, as follows:

a. Axle 4 weighed 20,410 pounds; b. Axle 5 weighed 20,410 pounds; c. Axle group 2 through 5 weighed 67,480, and the distance between the extremes of axle 2 and axle 5 was 34 feet.

9. Trooper Blackwell issued Ryder Truck Rental, Inc. overweight Citation No. 3141690-2, in accordance with N.C. Gen. Stat. § 20-118(e)(1) and (3).

10. Ryder Truck Rental, Inc. has paid Citation No. 3141690-2.

CONCLUSIONS OF LAW

1. Petitioner and Respondent 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. “When considering a motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff's recovery.” Locus v. Fayetteville State Univ., 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991); N.C. Gen. Stat. § 1A-1, Rule 12. “When considering a summary judgment motion, the trial court must look at more than the pleadings; it must also consider additional matters such as affidavits, depositions and other specified matter outside the pleadings.” Locus v. Fayetteville State Univ., 102 N.C. App. at 527, 402 S.E.2d at 866. “Summary judgment is proper only when there are no genuine issues of material fact and one party is entitled to judgment as a matter of law.” Id.

3. According to N.C. Gen. Stat. § 20-118 (e)(1) and (3), “the Department of Crime Control and Public Safety shall assess a civil penalty against the owner or registrant of the vehicle” that exceeds the tandem-axle and axle-group statutory weight limitations. (emphasis added)

4. On August 20, 2008, Ryder Truck Rental, Inc. was the “owner or registrant” of the vehicle that exceeded the statutory weight limitations.

5. Ryder Truck Rental, Inc. was exclusively responsible for the fine assessed by Respondent, and has already paid the fine in question.

6. Standing is “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Black’s Law Dictionary (8th ed. 2004). A proper party is “[a] party entitled to a remedy.” Id. Petitioner is not the registered owner of the vehicle and is not required to pay the overweight fine in question. Therefore, Petitioner does not have standing and is not a proper party to this action.

7. Based on the foregoing, Petitioner fails to state a claim upon which relief can be granted.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby GRANTS Respondent’s Motion to Dismiss.

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 11th day of March 2009.

______J. Randall May Administrative Law Judge