December 17, 1996
Deputy Secretary Frederick Aikens North Carolina Department of Transportation 1 South Wilmington Street Raleigh, N.C. 27611-5201
Re: Advisory Opinion: Authority of DMV Enforcement Director to Change Emissions Program Violation Designation; The Proper Procedure for Determining Appropriate Emission Violation Categories; and Authority of Commissioner of Motor Vehicles to Modify a Penalty Imposed for Emissions Program Violation; G.S. Chapter 20, Article 3A, Part 2.
Dear Secretary Aikens:
This letter is in response to your request for an advisory opinion regarding the following three questions: (1) the authority of the Director of the DMV Enforcement Section to redesignate or modify the designation of an emissions inspection violation; (2) the procedure for determining appropriate emissions violation categories; and (3) the authority of the Commissioner of Motor Vehicles to modify any penalty imposed for a similar violation. Each question is addressed seriatim.
1. Authority of the Director of DMV Enforcement to Change Emissions Program Violation Designations The general powers and authorities of the Commissioner of Motor Vehicles (hereinafter ACommissioner) are found in G.S. §§ 20-2 and 20-3. G.S. § 20-2 provides that the Division of Motor Vehicles shall be administered by the Commissioner. G.S. § 20-3 states that the Commissioner, subject to the approval of the Secretary of the Department of Transportation, is charged with the organization and administration of the manner in which the work of the Division is conducted as he may deem necessary. A fair reading of these statutes allows the Commissioner to delegate his responsibilities to other employees of the Division.
The statutes governing the Safety and Emissions Inspection Program are in Article 3A, Part 2, Chapter 20 of the North Carolina General Statutes. In G.S. § 20-183.6A(a), the Legislature assigned to the Division of Motor Vehicles the responsibility for administering the safety and emissions inspection programs. In reviewing compliance by emissions program licensees, G.S. § 20-183.8B grants to the Division the authority to take remedial and punitive actions for violations. G.S. §20-183.8E provides that an administrative appeal from any action taken by the Division under Article 3A, Part 2 of Chapter 20 is to the Commissioner. The Commissioner is directly assigned the responsibilities of program administration, compliance enforcement, penalty assessment and administrative review. It is, therefore, the responsibility of the Commissioner to make a case-by-case factual determination regarding the applicable violation designation to be assigned in emissions inspection cases and, after administrative review which includes fact finding, to take appropriate action.
The Commissioner may delegate and in the past has delegated his responsibilities in this regard to other employees of the Division. For instance, our understanding of the current operation is that inspectors from the Enforcement Section make the initial violation charge. Staff members within the Section at headquarters then determine the violation category to be assigned and the penalty to be imposed. A hearing officer, who has historically been part of the Enforcement Section staff, holds hearings, if requested, for the purpose of conducting administrative review in accordance with G.S. § 20-183.8E.
By memoranda dated March 22, 1993, E. C. Bristle, Robert A. Pruett and Danny G. Moody were designated by Commissioner Alexander Killens to conduct hearings on his behalf under Chapter 20, Article 3A and Article 12. (See copies attached). To our knowledge, these designations have not been rescinded. Supervision of these employees would be governed by the appropriate agency organizational chart, taking into account any relevant administrative policies or special instructions which may be in effect. We conclude that the question of whether any Enforcement Section employee’s decision is subject to review or modification depends on the administrative organizational chain of command in place within the Division and the level of authority delegated within the supervisory chain.
Our research discloses no statute that specifically authorizes or prohibits the Director of the Enforcement Section of the Division from taking any regulatory or administrative action as it relates to the emissions program. Clearly, any authority that the Director may have is derived from a delegation by the Commissioner, either specifically or impliedly through administrative organization. Moreover, such authority would be limited by any specific policy or instructions from the Commissioner. Therefore, the question of the Director’s authority to make an administrative decision affecting the emissions program would be controlled by the internal administrative policies in effect at the time of the decision.
2. Procedure for Determining Appropriate Emission Violation Categories Your second question concerns the procedure for determining the appropriate emission violation category. The advice provided herein is premised on our understanding of the procedures currently followed by the Division as set out above and application of the relevant law thereto.
The first step necessary to reaching a decision is to make a factual determination as to whether a violation occurred. The Commissioner or his designee must review the allegations presented together with any agreed upon facts and any evidence presented in support of and in opposition to the allegations. As a finder of fact, the Commissioner is free to determine the weight and sufficiency of the evidence and the credibility of the witnesses and to draw inferences from the facts and to appraise conflicting and circumstantial evidence. State ex rel. Commissioner of Insurance v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E. 2d 547, cert. denied, 301 N.C. 107, 273 S.E.2d 300 (1980). It should be emphasized that the Division has the burden of establishing through the presentation of credible evidence the existence of all facts including, for reasons set out below, whether the alleged action or omission was intentionally or negligently done.
After hearing and weighing evidence presented in the case, the Commissioner must make factual findings. The findings of fact must be supported by competent evidence. Dailey v. North Carolina State Board of Dental Examiners, 60 N.C. App. 441, 299 S.E. 2d 473 (1983), rev’d on other grounds, 309 N. C. 710, 309 S.E.2d 219 (1983). To be competent, evidence must be both relevant and admissible. It must also have some tendency to establish the existence of or disprove a fact in issue. State ex rel. Freeman v. Ponder, 234 N. C. 294, 67 S.E. 2d 292 (1951); Wilson v. Ervin, 227 N.C. 396, 42 S.E. 2d 468 (1947). Therefore, the Commissioner has the discretion to determine the facts of a case so long as the facts are based on competent evidence.
In analyzing and applying the law, the Commissioner must apply the law as written and in accordance with the legislative intent. If, however, in examining the law, there is ambiguity, the Commissioner must interpret the intent of the statute and then apply it appropriately. This is done by determining A. . . the evils it was designed to remedy, the effect of the proposed interpretation of the statute, and the traditionally accepted rules of statutory construction. State v. Tew, 326 N. C. 732, 738, 392 S.E.2d 603, 607 (1990). It is a fundamental rule of statutory construction to consider any internal guide to construction which the legislature has provided within the statute when the other provisions are not clear and explicit. Williams v. Williams, 299
N. C. 174, 261 S.E.2d 849 (1980). The court has further stated, [t]he different parts of a statute reflect light upon each other, and statutory provisions are regarded as in pari materia where they are parts of the same act. Hence, a statute should be construed in its entirety, and as a whole. All parts of the act should be considered, and construed together. It is not permissible to rest a construction upon any one part alone, or upon isolated words, phrases, clauses, or sentences, or to give undue effect thereto. The legislative intention, as collected from an examination of the whole as well as the separate parts of a statute, is not to be defeated by the use of particular terms. State ex. Rel. Utilities Commission v. Duke Power Co., 305 N.C. 1, 13, 287 S.E.2d 786, 793 (1982).
Once a fact or set of facts has been determined, the Commissioner must then apply the law to his findings of fact and decide whether a penalty should be imposed, and if so, what penalty is appropriate. Regarding penalties for emissions inspection violations, Article 3A of G.S. Chapter 20 contains the applicable substantive law.
The statutes regulating vehicle emissions inspection violations are broad and numerous. Some are general in nature. Others are very specific. When individual sections of the statute are read alone, it is possible to draw one conclusion; however, when sections are read together, a different result may be reached. By way of example, a typical fact situation arises when an undercover officer presents a tampered vehicle to an emissions inspection station and requests that the vehicle be inspected. A common tamper is to present a vehicle of a make and model required to be equipped with a catalytic converter as part of the exhaust/emissions equipment on which the catalytic converter has been removed. Often the inspection process is done out of the officer’s presence. The vehicle is submitted to an electronic exhaust analysis which reveals exhaust emission levels within acceptable parameters. The vehicle will be passed by the station or mechanic and a sticker affixed without detection of the missing, but required catalytic converter.
- G.S.
- § 20-183.3(b) states in part, [t]o pass an emissions inspection a vehicle must pass both the visual inspection and the exhaust emissions analysis. While the failure to perform either the visual inspection or the exhaust emissions analysis would constitute a Type I violation, there must be evidence to support a finding that the required inspections were not done. Failure to detect a tamper alone is not sufficient to support such a finding.
- G.S.
- § 20-183.8B(a) describes a schedule of penalties divided into three levels: Type I or serious; Type II or minor; and Type III or technical. This section defines these terms, stating that a serious violation is one that Adirectly affects the emission reduction benefits of the emissions inspection program while a minor violation is one that Areflects negligence or carelessness in
conducting an emissions inspection or complying with the emissions inspections requirements, but does not directly affect the emissions reduction benefits of the emissions inspection program.@ A technical violation is anything not falling under the designation of serious or minor as defined in the statute. This language is consistent with federal requirements. See 40 CFR 51.364(a)(2) (copy attached).
The definitions in G.S. § 20-183.8B(a) must be read together with G. S. § 20-183.8C, which lists specific acts that constitute Type I, Type II or Type III violations. The specific acts listed as Type I violations under G. S. § 20-183.8C(a) appear to be directed at intentional acts by the inspection station or mechanic. For example, G. S. § 20-183.8C(a)(1) states that it is a Type I violation for a station or mechanic to, [p]ut an emissions inspection sticker on a vehicle without performing an emissions inspection of the vehicle or after performing an emissions inspection in which the vehicle did not pass the inspection.
In the scenario set out above, the Commissioner is faced with determining what type violation occurred. Absent evidence of an intentional act on the part of the mechanic or station, the only conclusion is that the inspection process failed to detect a required but missing part. At the same time, the vehicle’s actual exhaust emissions levels fell within acceptable levels. The failure to detect a missing catalytic converter may have been due to negligence or carelessness in conducting the emissions inspection which would appear to warrant a Type II violation. However, if the mechanic or station actually discovers that the required catalytic converter is missing, but nonetheless passes the vehicle during the inspection, it would be entirely appropriate to classify the violation as Type I.
Because Article 3A is not exhaustive in listing each conceivable fact situation which may arise, the Commissioner should read the statutes together to resolve any ambiguities. In the event that the Commissioner determines it necessary, he may designate additional acts that are Type I, Type II, or Type III pursuant to the authority granted by G.S. § 20-183.8C(d). This should be accomplished, however, through the rule making process.
3. Authority of the Commissioner of Motor Vehicles to Modify a Penalty Imposed for Emissions Program Violation Your third question asks whether the Commissioner of Motor Vehicles has discretionary authority to modify a penalty designation.
Based on the procedural understanding set out above, there are at least three stages at which the Commissioner or his designee may exercise discretion. The first is when the original violation and penalty determination are made as a result of the field inspection. The second occurs when, for any reason, an error is discovered and corrected administratively, and the third is during the formal hearing process recognized in G.S. § 20-183.8E.
Once the Commissioner has made a final determination of the appropriate type of penalty to be imposed using the process outlined above, the Commissioner must uphold the penalty mandated by G.S. § 20-183.8B if it is supported by law and fact. G.S. §20-183.8E. Necessarily, each determination must be made on a case-by-case basis, and the law applied consistently to similar factual situations. If at any time it is found that an improper determination has been made, it would be incumbent on the Commissioner or his designee to take appropriate remedial action.
Absent evidence that the conclusion was made in error or bad faith, there is no authority to change or modify the type violation assigned. One noteworthy caveat to this final determination is the authority of the Commissioner to authorize a compromise settlement to resolve a conflict if an action of the agency is appealed to the courts.
Reginald L. Watkins Senior Deputy Attorney General
Hal F. Askins
Special Deputy Attorney General