State of North Carolina

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF SURRY 08 CPS 3399

Spencer’s Incorporated of Mount Airy, NC, ) d/b/a Ararat Rock Products Company ) and Jim Crossingham, III, ) Petitioners, ) ) v. ) DECISION ) North Carolina Highway Patrol, ) Respondent. ) )

THIS MATTER coming on to be heard and being heard before the Honorable J. Randall May, Administrative Law Judge Presiding, during the June 30, 2009, session of Administrative Hearings Court and being heard in High Point, North Carolina at the High Point courthouse; and it appearing to the Court that Petitioners were represented by their attorney, Scott F. Lowry of Mount Airy, North Carolina, and that Respondent was represented by Sebastian Kielmanovich, Assistant Attorney General for the State of North Carolina.

To clarify the proper name of the Petitioner, it should be noted that the citations were issued in the name of Spencer’s Inc. of Mount Airy, NC and a petition was filed in the name of Ararat Rock Products by Jim Crossingham, III. Subsequently, a motion was made by the Respondent for clarification of the Petitioner’s name and legal status. On June 22, 2009, NOTICE OF REPRESENTATION was entered by Attorney Scott F. Lowry stating the name of the Petitioner as Spencer’s Incorporated of Mount Airy, NC, d/b/a Ararat Rock Products Company and Jim Crossingham III. This “de facto” motion to amend the case name was received without objection from the Respondent and without the requested written motion from the Petitioner. It will now be recognized ex mero motu.

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.

Based upon careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence, and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember

1 the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony and the admitted evidence, or the lack thereof, the undersigned makes the following:

FINDINGS OF FACT

1. That on August 15, 2008, at approximately 9:40 a.m., a vehicle, bearing license plate number LK3753 (NC), owned by and registered to Spencer’s Incorporated of Mount Airy, North Carolina, was stopped by North Carolina Highway Patrol Trooper Eric M. Todd (hereinafter referred to as “Trooper Todd”) on North Carolina Highway 89 in Surry County, North Carolina.

2. That the subject vehicle that was stopped by Trooper Todd on the aforementioned date had four axles, and was marked with the lettering of Ararat Rock Products Company.

3. That Trooper Todd proceeded to measure the distance between axle #2 and axle #4 of the subject vehicle to determine the subject vehicle’s compliance with weight allowances as provided by North Carolina law.

4. Trooper Todd indicated that he placed one end of the measuring tape in the tire tread above the middle of axle #2 and stretched the tape to the middle of axle #4. From this vantage point, Trooper Todd discerned his total measurement by a gross visual inspection. According to Trooper Todd, he measured the total distance between axle #2 and axle #4 of the subject vehicle at eight (8) feet exactly.

5. Trooper Todd indicated that since his measurements were performed on the subject vehicle on August 15, 2008, hooks have now been provided to him by Respondent to hook onto the middle of the axle instead of hooking onto the tire tread.

6. As a result of Trooper Todd’s measurement, a citation was issued against Petitioners for an overweight violation. Since the subject vehicle was carrying a scale weight of 44,600 pounds and Trooper Todd’s measurement between axle #2 and axle #4 was exactly eight (8) feet, the permissible weight allowed by North Carolina law was 38,000 pounds.

7. That Petitioners, by and through Jim Crossingham, III., indicated that the measurement between axle #2 and axle #4 of the subject vehicle was eight (8) feet three (3) inches. Mr. Crossingham has his vehicles custom-built to comply with the weight restrictions as provided by North Carolina law and on August 15, 2008, Mr. Crossingham instructed his driver to return the subject vehicle back to his office shortly after it was stopped by Trooper Todd. At that point, Mr. Crossingham measured the subject vehicle and verified his measurement between axle #2 and axle #4 to be in excess of eight (8) feet.

8. As a result of this measurement, Mr. Crossingham’s subject vehicle would have been entitled to carry up to 46,200 pounds since the measurement between axle #2 and axle #4 was in excess of eight (8) feet. At the time of Trooper Todd’s stop, the subject vehicle’s scale

2 weight was only 44,600 pounds.

9. That Mr. Timothy Keith Bowman testified on behalf of Petitioners and indicated that his measurement between axle #2 and axle #4 was eight (8) feet, three (3) inches. Mr. Bowman is the owner/operator of Blue Ridge Truck and Trailer and services the vehicles owned by Petitioners. CONCLUSIONS OF LAW

The North Carolina Office of Administrative Hearings has jurisdiction over the parties and subject matter of this contested case pursuant to N.C. Gen. Stat.§ 150B-23 et seq. All necessary parties have been joined and have received proper notice of the hearing in this matter. 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 so considered without regard to the given labels. Based on the foregoing the undersigned concludes as follows:

1. That Respondent has the authority and responsibility to regulate and enforce the laws pertaining to commercial and overweight motor vehicles.

2. That N.C. Gen. Stat. § 20-118 provides, in pertinent part, that:

The gross weight imposed upon the highway by any axle group of a vehicle . . . shall not exceed the maximum weight given for the respective distances for their axle grouping as measured longitudinally to the nearest foot as prescribed by law.

3. That the undersigned was unable to ascertain from the trooper’s testimony concerning his measurement (of exactly eight (8) feet) whether or not the statutory requirement as prescribed by N.C. Gen. Stat. § 20-118 had been violated. To accept the trooper’s inexact measurement would then cause the undersigned to reason that the Respondent had not acted arbitrarily, capriciously or erroneously, and that conclusion would be contrary to the weight of the credible evidence.

4. That Petitioners have shown by a preponderance of the evidence that Respondent acted erroneously, arbitrarily and capriciously.

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

DECISION

It is the decision of the Court that the North Carolina Secretary for Crime Control and Public Safety, on behalf of Respondent, REVERSE the agency decision heretofore issued by the North Carolina Highway Patrol against Petitioners.

NOTICE

The North Carolina Department of Crime Control and Public Safety will make the Final

3 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 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).

ORDERED this the 25th day of August, 2009.

______J. Randall May Administrative Law Judge