BY THE COURT
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
Interpretation of a statute or an administrative regulation
is a question of law over which appellate courts have
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.
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
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.
from Shawnee District Court; Evelyn Z. Wilson, judge.
G. Fedotin, deputy general counsel and chief appellate
counsel, Kansas Corporation Commission, for appellant.
Collier, of Topeka, for appellee.
Leben, P.J., Hill, J., and Walker, S.J.
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
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.
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.
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