Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carlson Auction Service, Inc. v. Kansas Corporation Commission

Court of Appeals of Kansas

February 16, 2018

Carlson Auction Service, Inc., Appellee,
v.
Kansas Corporation Commission, Appellant.

         SYLLABUS BY THE COURT

         1. The scope of judicial review of a state administrative agency action is defined by the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. The party asserting the invalidity of an agency's action bears the burden of proving invalidity.

         2. Interpretation of a statute or an administrative regulation is a question of law over which appellate courts have unlimited review.

         3. Under K.S.A. 2016 Supp. 66-1, 108b, the Kansas Corporation Commission has power, authority, and jurisdiction to supervise and control motor carriers, including a private motor carrier. A private motor carrier must obtain a license or permit from the Kansas Corporation Commission or be registered pursuant to federal statutes to operate as a carrier of property or passengers within Kansas.

         4. A private motor carrier is a person who provides transportation of property or passengers by commercial motor vehicle, and a commercial motor vehicle is any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle meets a certain weight requirement.

         5. A seller, such as Carlson Auction Service, Inc., is not acting as a private motor carrier by driving a vehicle for delivery to its purchaser and under those circumstances is not under the jurisdiction of the Kansas Corporation Commission.

         Appeal from Shawnee District Court; Evelyn Z. Wilson, judge.

          Brian G. Fedotin, deputy general counsel and chief appellate counsel, Kansas Corporation Commission, for appellant.

          L.N. Collier, of Topeka, for appellee.

          Before Leben, P.J., Hill, J., and Walker, S.J.

          Walker, J.

         The Kansas Corporation Commission (Commission) appeals from the district court's decision reversing the Commission's decision to impose a fine on Carlson Auction Service, Inc. (Carlson), for failing to register and pay Unified Carrier Registration Act (UCR) fees when it employed a driver to drive an empty tow truck from Carlson's auction house in Topeka to the purchaser in Missouri. On appeal, we hold that Carlson was not a private motor carrier operating as a carrier of property or passengers without a license or permit to do so and affirm the district court's reversal of the fine.

         Facts

         On December 1, 2015, Kansas Highway Patrol Motor Carrier Inspector Officer Mandee Gieber was inspecting and weighing a truck at the rest stop on I-70 in Kansas between Topeka and Lawrence when a citizen notified her that the citizen had seen a white Isuzu tow truck that had the driver's door partially open, held shut with a bungee strap. After finishing the inspection she was performing, Officer Gieber located the 1989 Isuzu truck, which she could tell was over 10, 000 gross vehicle weight rating (GVWR). She saw the bungee strap hanging out of the driver's door, which was open, as reported by the citizen.

         Officer Gieber spoke to the driver of the Isuzu, who said he was simply driving the truck for I-70 Auto Auction from Topeka to Kansas City, Missouri, to deliver it to Crosby Auction, which had purchased the truck. Officer Gieber informed the driver that she was going to do an inspection of the vehicle. She performed a level II inspection. When she ran the dealer's tag that was on the vehicle, it returned to Carlson Auction Service, Inc., of Topeka. She could not find any USDOT number in the database for Carlson. She called the phone number for Carlson Auction and spoke to someone who said that the company did not have a USDOT number nor did it need one because it did not have a load on the truck. During the inspection, Officer Gieber noted 11 violations of motor carrier safety rules and regulations, 1 of which was failure to pay UCR fees.

         Three days later the Commission sent Carlson a notice of violation of failure to register and pay UCR fees pursuant to 49 C.F.R. § 392.2 (2016). Carlson was assessed a $300 fine for failure to register and pay the UCR fees. Carlson sent an e-mail initiating a formal challenge of the notice of violation. In response, Captain Christopher J. Turner of the Kansas Highway Patrol wrote a letter to Carlson informing it ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.