Order Granting of Name Missouri

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					                               Before the
                   Administrative Hearing Commission
                            State of Missouri


MISSOURI HIGHWAYS AND                                  )
TRANSPORTATION COMMISSION,                             )
                                                       )
                        Petitioner,                    )
                                                       )
       vs.                                             )             No. 06-0665 MC
                                                       )
GREG PHILLIPS, d/b/a PHILLIPS FARMS,                   )
                                                       )
                        Respondent.                    )


                                 ORDER GRANTING SUMMARY
                                  DETERMINATION IN PART

       We grant the Missouri Highways and Transportation Commission (―MHTC‖)’s motion

for summary determination (―the motion‖) in part as to Counts I, II, and III, and to all of Counts

VIII, IX, and X, because Greg Phillips, d/b/a Phillips Farms (―Phillips‖) violated § 307.400,1

§§ 390.071 and 390.270,2 and 49 CFR §§ 382.115(a), 382.301(a), 387.7(a), 395.8(a),

395.8(k)(1), and 396.17(a).

       We deny the motion in part as to Counts I, II, and III as to the alleged violations of

§§ 390.201 and 622.550.3

       We grant the motion in part as to Count V regarding the violation of 49 CFR § 395.8(k)(1)

and § 307.400 relating to Bryon Brooks’ September 29, 2005, trip. But we deny the motion as to




       1
         Statutory references are to RSMo Supp. 2007, unless otherwise noted.
       2
         RSMo 2000.
       3
         RSMo 2000.
the violations alleged in Count V, ¶ 19(b) and (c).4 We also deny the motion as to alleged

violations of §§ 390.201 and 622.550 in ¶ 19(a), (b), and (c).5 We deny the motion as to Counts

IV, VI and VII.

                                                   Procedure

       The MHTC filed an amended complaint on October 6, 2006. Phillips has not answered

the amended complaint. The MHTC filed the motion for summary determination on

December 3, 2007. We gave Phillips until December 14, 2007, to respond, but he did not

respond.

       Regulation 1 CSR 15-3.440(3)(B)3 provides that we may decide this case without a

hearing if any party establishes facts that entitle any party to a favorable decision and no party

raises a genuine issue as to such facts. The MHTC established the following facts.

                                               Findings of Fact

       1.       Greg Phillips is engaged in business as a sole proprietorship, under the registered

fictitious name ―Phillips Farms.‖ The principal place of business is at 408 West J.F. Norton

Parkway in Winona, Missouri.

       2.       Phillips Farms is registered with the Federal Motor Carrier Safety Administration

under United States Department of Transportation (―USDOT‖) number 487272. Phillips

previously operated under this identical USDOT using the name of Greg Phillips Propane Gas

(―GPPG‖).

       3.       For the trips set forth below, Phillips was the employer of each driver, who were

driving trucks that Phillips owned, leased, or exercised control of.




       4
           All references to MHTC’s pleadings are to the amended complaint, unless otherwise noted.
       5
           RSMo 2000.

                                                         2
       4.    On September 29, 2005, Phillips allowed his driver Bryon Brooks to operate

Phillips’ 1995 Peterbilt, Unit #101, with a licensed weight of 80,000 pounds and a GVWR

weight range of 47,001 to 57,000 pounds to transport property (specifically, soy hull pellets)

upon public highways from Cairo, Illinois, to Poplar Bluff, Missouri. Brooks made this trip

before Phillips had implemented an alcohol or controlled substances testing program. Phillips

allowed Brooks to make the move without maintaining records of his duty status and all

supporting documents for a period of six months from the date of receipt. Phillips allowed

Brooks to make this trip without having the truck periodically inspected.

       5.    On January 19, 2006, Phillips allowed Brooks to operate Phillips’ 2000 Peterbilt

truck, Unit #109, with a GVWR of 48,000, to transport property (specifically, a mill scale) upon

public highways from Winona, Missouri, to Chanute, Kansas.

       6.    On January 24, 2006, ChoicePoint Medical Review Services (―the laboratory‖)

collected a specimen from Brooks for a controlled substances test to meet USDOT safety pre-

employment testing requirements for motor carriers. The laboratory tested the specimen and

reported the test results on January 25, 2006. There was no pre-employment test of Brooks

before January 24, 2006.

       7.    On October 14, 2005, Phillips allowed Mackey Redman to operate Phillips’ 1995

Peterbilt, Unit #97, with a GVWR rating of 50,000 pounds and a licensed weight of 80,000

pounds while transporting property (specifically, livestock feed) upon public highways from

Cairo, Illinois, to Winona, Missouri. Phillips allowed Redman to engage in this conduct before

Phillips had in effect the required minimum levels of financial responsibility coverage. Phillips

allowed Redman to make this trip without having the truck periodically inspected.

       8.    Phillips allowed the following trips to be made without having obtained the proper

interstate operations permit issued by the MHTC:




                                                3
a. On September 8, 2005, Phillips allowed one of his employees to operate one

   of Phillips’ trucks with a GVWR greater than 26,001 pounds while

   transporting hardwood chips from Birch Tree, Missouri, to Wickliffe,

   Kentucky.

b. On September 9, 2005, Phillips allowed one of his employees to operate one

   of Phillips’ trucks with a GVWR greater than 26,001 pounds while

   transporting property (specifically, hardwood chips) upon public highways

   from Birch Tree, Missouri, to Wickliffe, Kentucky.

c. On October 31, 2005, Phillips allowed John Underwood to operate Phillips’

   truck, Unit #1, with a GVWR greater than 26,001 pounds while transporting

   property (specifically, soybean bull pellets) upon public highways from Cairo,

   Illinois, to Thayer, Missouri.

d. On November 1, 2005, Phillips allowed Redman to operate Phillips’ truck

   Unit #97, with a GVWR rating of 50,000 pounds and a licensed weight of

   80,000 pounds while transporting property (specifically, soybean hull pellets)

   upon the public highways from Cairo, Illinois, to Clarence, New York.

e. On January 13, 2006, Phillips allowed Redman to operate Phillips’ truck, Unit

   #97, with a GVWR rating of 50,000 pounds and a licensed weight of 80,000

   pounds while transporting property (specifically, feed) upon the public

   highways from Winfield, Kansas, to West Plains, Missouri.

f. On November 4, 2005, Phillips allowed Brooks to operate Phillips’ truck, Unit

   #101, with a licensed weight of 80,000 pounds and a GVWR weight range of

   47,001 to 57,000 pounds in interstate commerce while transporting property




                                    4
                  (specifically, soybean hull pellets) upon the public highways from Cairo,

                  Illinois, to Bakersfield, Missouri.

              g. On January 3 and 4, 2006, Phillips allowed his employee, Lee Smith, to

                  operate Phillips’ truck, Unit #103, with a GVWR of 50,000 pounds and a

                  licensed weight of 80,000 pounds while transporting property (specifically,

                  dust) upon the public highways from Winona, Missouri, to Wickliffe,

                  Kentucky.

              h. On January 10, 2006, Phillips allowed Smith to operate Phillips’ truck, Unit

                  #103, with a GVWR of 50,000 pounds and a licensed weight of 80,000

                  pounds while transporting property (specifically, dust) upon the public

                  highways from Success, Missouri, to Wickliffe, Kentucky.

              i. On January 11, 2006, Phillips allowed Smith to operate Phillips’ truck, Unit

                  #103, with a GVWR of 50,000 pounds and a licensed weight of 80,000

                  pounds while transporting property (specifically, dust) upon the public

                  highways from Cabool, Missouri, to Wickliffe, Kentucky.

       9.   Phillips allowed the following trips to be made by Bobby Edwards without having

obtained the proper intrastate operations permit issued by the MHTC:

              a. On January 3, 2006, Phillips allowed Edwards to operate Phillips’ truck, Unit

                  #101, with a licensed weight of 80,000 pounds and a GVWR weight range of

                  47,001 to 57,000 pounds while transporting property (specifically, dust and

                  chips) upon the public highways from Mountain View, Missouri, to Belle,

                  Missouri, and Bunker, Missouri, to Scott City, Missouri.

              b. On January 5, 2006, Phillips allowed Edwards to operate Phillips’ truck, Unit

                  #101, with a licensed weight of 80,000 pounds and a GVWR weight range of




                                                5
                   47,001 to 57,000 pounds while transporting property (specifically, dust) upon

                   the public highways from Birch Tree, Missouri, to Belle, Missouri.

               c. On January 6, 2006, Phillips allowed Edwards to operate Phillips’ truck, Unit

                   #101, with a licensed weight of 80,000 pounds and a GVWR weight range of

                   47,001 to 57,000 pounds while transporting property (specifically, chips) upon

                   the public highways from Bunker, Missouri, to Scott City, Missouri.

               d. On January 9, 2006, Phillips allowed Edwards to operate Phillips’ truck, Unit

                   #101, with a licensed weight of 80,000 pounds and a GVWR weight range of

                   47,001 to 57,000 pounds while transporting property (specifically, chips) upon

                   the public highways from Bunker, Missouri, to Scott City, Missouri.

               e. On January 10, 2006, Phillips allowed Edwards to operate Phillips’ truck, Unit

                   #101, with a licensed weight of 80,000 pounds and a GVWR weight range of

                   47,001 to 57,000 pounds while transporting property (specifically, chips) upon

                   the public highways from Bunker, Missouri, to Scott City, Missouri.

                                          Conclusions of Law

       We have jurisdiction to hear the MHTC’s amended complaint.6 The MHTC has the

authority to enforce Parts 100 through 199 and Parts 350 through 399 of Title 49 of the Code of

Federal Regulations in regard to all motor carriers in Missouri.7 The MHTC must show by clear

and satisfactory evidence that Phillips has violated the law.8

                                          Definitions of Terms

       49 CFR § 390.5 defines the following terms for Title 49, Subtitle B, Chapter III,

Subchapter B, which comprises Parts 350 to 399:




       6
         Sections 621.040 and 226.008.4 and § 622.320, RSMo 2000.
       7
         Section 226.008.2(1) and §§ 390.041, 390.201, 622.090, and 622.550, RSMo 2000.
       8
         Section 622.350.

                                                     6
              Commercial motor vehicle means any self-propelled or towed
              motor vehicle used on a highway in interstate commerce to
              transport passengers or property when the vehicle--

              (1) Has a gross vehicle weight rating or gross combination weight
              rating, or gross vehicle weight or gross combination weight, of
              4,536 kg (10,001 pounds) or more, whichever is greater;

                                             * * *

              Driver means any person who operates any commercial motor
              vehicle.

                                             * * *

              Employee means any individual, other than an employer, who is
              employed by an employer and who in the course of his or her
              employment directly affects commercial motor vehicle safety.
              Such term includes a driver of a commercial motor vehicle
              (including an independent contractor while in the course of
              operating a commercial motor vehicle) . . . ;

              Employer means any person engaged in a business affecting
              interstate commerce who owns or leases a commercial motor
              vehicle in connection with that business, or assigns employees to
              operate it[.]

              Interstate commerce means trade, traffic, or transportation in the
              United States--

              (1) Between a place in a State and a place outside of such State
              (including a place outside of the United States); . . .

              Intrastate commerce means any trade, traffic, or transportation in
              any State which is not described in the term "interstate commerce."

The following definitions in 49 CFR § 382.107 apply to 49 CFR Part 382:

              Words or phrases used in this part are defined in §§ 386.2 and
              390.5 of this subchapter, and § 40.3 of this title, except as provided
              in this section—

                                             * * *

              Commercial motor vehicle means a motor vehicle or combination
              of motor vehicles used in commerce to transport passengers or
              property if the vehicle--



                                                7
(1) Has a gross combination weight rating of 11,794 or more
kilograms (26,001 or more pounds) inclusive of a towed unit with
a gross vehicle weight rating of more than 4,536 kilograms (10,000
pounds); or

(2) Has a gross vehicle weight rating of 11,794 or more kilograms
(26,001 or more pounds);

                               * * *

Driver means any person who operates a commercial motor
vehicle. This includes, but is not limited to: Full time, regularly
employed drivers; casual, intermittent or occasional drivers; leased
drivers and independent owner-operator contractors.

Employer means a person or entity employing one or more
employees (including an individual who is self-employed) that is
subject to DOT agency regulations requiring compliance with this
part. The term, as used in this part, means the entity responsible for
overall implementation of DOT drug and alcohol program
requirements, including individuals employed by the entity who
take personnel actions resulting from violations of this part and any
applicable DOT agency regulations. Service agents are not
employers for the purposes of this part.

                               * * *

Safety-sensitive function means all time from the time a driver
begins to work or is required to be in readiness to work until the
time he/she is relieved from work and all responsibility for
performing work. Safety-sensitive functions shall include:

                               * * *

(1) All time at an employer or shipper plant, terminal, facility, or
other property, or on any public property, waiting to be dispatched,
unless the driver has been relieved from duty by the employer;

(2) All time inspecting equipment as required by §§ 392.7 and
392.8 of this subchapter or otherwise inspecting, servicing, or
conditioning any commercial motor vehicle at any time;

(3) All time spent at the driving controls of a commercial motor
vehicle in operation;




                                  8
                 (4) All time, other than driving time, in or upon any commercial
                 motor vehicle except time spent resting in a sleeper berth (a berth
                 conforming to the requirements of § 393.76 of this subchapter);

                 (5) All time loading or unloading a vehicle, supervising, or
                 assisting in the loading or unloading, attending a vehicle being
                 loaded or unloaded, remaining in readiness to operate the vehicle,
                 or in giving or receiving receipts for shipments loaded or
                 unloaded[.]

       The following definitions in § 390.020 apply to the allegations relating to §§ 390.071 and

390.2709 (Counts IX and X, respectively):10

                 (13) "Interstate commerce", commerce between a point in this
                 state and a point outside this state, or between points outside this
                 state when such commerce moves through this state whether such
                 commerce moves wholly by motor vehicle or partly by motor
                 vehicle and partly by any other regulated means of transportation
                 where the commodity does not come to rest or change its identity
                 during the movement;

                 (14) "Intrastate commerce", commerce moving wholly between
                 points within this state, whether such commerce moves wholly by
                 motor vehicle or partly by motor vehicle and partly by any other
                 means of transportation;

                 (18) "Motor carrier", any person engaged in the transportation of
                 property or passengers, or both, for compensation or hire, over the
                 public roads of this state by motor vehicle. The term includes both
                 common and contract carriers;

                 (19) "Motor vehicle", any vehicle, truck, truck-tractor, trailer, or
                 semitrailer, motor bus or any self-propelled vehicle used upon the
                 highways of the state in the transportation of property or passengers[.]

                                           As to All Counts

       For all of the counts, the trucks being driven fell within the definitions of commercial

motor vehicles in 49 CFR §§ 382.107 and 390.5. The duties that the drivers were performing fell

within the definition of ―safety-sensitive functions‖ in 49 CFR § 387.107.




       9
           RSMo 2000.

                                                   9
                                                     Count I

        The MHTC contends in Count I:

                         11. On or about September 29, 2005, Respondent violated
                 49 CFR § 382.115(a) in that it authorized Bryon Brooks,
                 Respondent's employee, to operate a commercial motor vehicle
                 with a gross vehicle weight rating (GVWR) of 50,000 pounds in
                 interstate commerce before Respondent had implemented an
                 alcohol and/or controlled substances testing program as required
                 by 49 CFR Parts 40 and 382.

49 CFR Part 382 establishes ―programs designed to help prevent accidents and injuries resulting

from the misuse of alcohol or use of controlled substances by drivers of commercial motor

vehicles.‖11 49 CFR § 382.115 provides:

                 (a) All domestic-domiciled employers must implement the
                 requirements of this part on the date the employer begins
                 commercial motor vehicle operations.

        Phillips admitted to the conduct alleged in Count I in his signed statement given to the

MHTC investigator. Phillips presents nothing to genuinely dispute the allegations in Count I.

Therefore, Phillips violated 49 CFR § 382.115(a).

        In the motion, but not in the amended complaint, the MHTC contends that the same

conduct that violated 49 CFR § 382.115(a) ―concurrently violated §390.201 and §622.550,

RSMo.‖12 The two statutes are identical and provide:

                 Subject to any exceptions which are applicable under section
                 307.400, RSMo, or subsection 6 of section 390.063, the officers
                 and commercial motor vehicle inspectors of the state highway
                 patrol, the enforcement personnel of the division of motor carrier
                 and railroad safety, and other authorized peace officers of this state
                 and any civil subdivision of this state, may enforce any of the
                 provisions of Parts 350 through 399 of Title 49, Code of Federal
                 Regulations, as those regulations have been and may periodically
                 be amended, as they apply to motor vehicles and drivers operating
                 in interstate or intrastate commerce within this state; except that



        10
            The opening sentence of § 390.020 and the provisions of § 390.250, RSMo 2000, control the applicability
of the definitions in § 390.020 to § 390.270, RSMo 2000.
         11
            49 CFR § 382.101.
         12
            Motion ¶ 9.

                                                        10
                the enforcement personnel of the division of motor carrier and
                railroad safety shall be authorized to enforce those regulations
                wholly within the terminals of motor carriers and private carriers
                by motor vehicle.

        Due process and our regulations require that the MHTC cite to any law in its amended

complaint if it wants to use Phillips’ violation of that law as a basis on which to discipline him.13

We cannot find a violation that was not charged.14 The MHTC did not cite §§ 390.201 and

622.55015 in its amended complaint and therefore did not charge Phillips with violating them.

Accordingly, we cannot find that Phillips violated those statutes.

        Even if MHTC had charged it, we would not find a violation of §§ 390.2 01 and

§622.550.16 The statutes do not require or proscribe any conduct by the employer or driver;

rather, the statutes authorize various officers and agencies to enforce federal regulations.

        We grant the motion as to the violation of 49 CFR § 382.115(a), but deny it as to the

alleged violations of §§ 390.201 and 622.550.17

                                                  Count II

        The MHTC alleges in Count II:

                       13. On or about January 19, 2006, Respondent violated 49
                CFR § 382.301(a) in that it authorized Bryon Brooks, Respondent's
                employee, to operate a commercial motor vehicle with a GVWR of
                48,000 pounds in interstate commerce before Respondent had
                received a preemployment controlled substances test as required
                under 49 CFR Part 382.

49 CFR § 382.301 provides:

                (a) Prior to the first time a driver performs safety-sensitive
                functions for an employer, the driver shall undergo testing for
                controlled substances as a condition prior to being used, unless the



        13
            Sander v. Missouri Real Estate Comm'n, 710 S.W.2d 896, 901 (Mo. App., E.D. 1986); and 1 CSR 15-
3.350(2)(A)4.
         14
            Missouri Dental Bd. v. Cohen, 867 S.W.2d 295, 297 (Mo. App., W.D. 1993).
         15
            RSMo 2000.
         16
            RSMo 2000.
         17
            RSMo 2000.

                                                     11
               employer uses the exception in paragraph (b) of this section. No
               employer shall allow a driver, who the employer intends to hire or
               use, to perform safety-sensitive functions unless the employer has
               received a controlled substances test result from the MRO or
               C/TPA indicating a verified negative test result for that driver.

The MHTC’s exhibits establish that Brooks made the interstate trip in a commercial motor

vehicle before Brooks was subjected to his pre-employment controlled substances test. Phillips

presents nothing to genuinely dispute the allegations in Count II. Therefore, Phillips violated 49

CFR § 382.301(a).

       As with Count I, the MHTC contends in its motion that the conduct that violated the

federal regulation concurrently violated §§ 390.201 and 622.550. The MHTC did not allege in

its amended complaint that this conduct also violated these statutes.

       We grant the motion as to 49 CFR § 382.301(a). For reasons set forth as to Count I, we

deny the motion as to the alleged violations of §§ 390.201 and 622.550 for Count II.

                                             Count III

       The MHTC contends in Count III:

                       15. On or about October 14, 2005, Respondent violated 49
               CFR § 387.7(a) in that it authorized Mackey Redman,
               Respondent’s employee, to drive a commercial motor vehicle with
               a GVWR of 50,000 pounds in interstate commerce without having
               in effect the required minimum levels of financial responsibility
               coverage.

49 CFR § 387.7(a) provides:

               (a) No motor carrier shall operate a motor vehicle until the motor
               carrier has obtained and has in effect the minimum levels of
               financial responsibility as set forth in § 387.9 of this subpart.

Phillips admitted to the conduct alleged in Count III in his signed statement given to the MHTC

investigator. Phillips presents nothing to genuinely dispute the allegations in Count III.

Therefore, Phillips violated 49 CFR § 387.7(a).



                                                  12
       As with Count I, the MHTC contends in its motion that the conduct that violated the

federal regulation concurrently violated §§ 390.201 and 622.550. The MHTC did not allege in

its amended complaint that this conduct also violated these statutes.

       We grant the motion as to 49 CFR § 387.7(a). For reasons set forth as to Count I, we

deny the motion as to the alleged violations of §§ 390.201 and 622.55018 for Count III.

                                               Count IV

       The MHTC contends in Count IV:

                         17. On or about the dates below, Respondent violated 49
                 CFR § 395.8(a) and § 307.400, RSMo, in that it authorized the
                 following employees to drive a commercial motor vehicle with a
                 GVWR of 50,000 pounds without requiring a record of their duty
                 status:

                      (a) Mackey Redman transported property in intrastate
                 commerce on October 14, 2005 and January 16, 2006;
                      (b) Bobby Edwards transported property in intrastate
                 commerce on January 3, 2006; and
                      (c) Mackey Redman transported property in interstate
                 commerce on January 11, 2006.

49 CFR § 395.8 provides:

                 (a) Except for a private motor carrier of passengers (nonbusiness),
                 every motor carrier shall require every driver used by the motor
                 carrier to record his/her duty status for each 24 hour period using
                 the methods prescribed in either paragraphs (a)(1) or (2) of this
                 section.

Section 307.400 provides:

                         1. It is unlawful for any person to operate any commercial
                 motor vehicle as defined in Title 49, Code of Federal Regulations,
                 Part 390.5, either singly or in combination with a trailer, as both
                 vehicles are defined in Title 49, Code of Federal Regulations, Part
                 390.5, unless such vehicles are equipped and operated as required
                 by Parts 390 through 397, Title 49, Code of Federal Regulations,
                 as such regulations have been and may periodically be amended,
                 whether intrastate transportation or interstate transportation. . . .

       18
            RSMo 2000.

                                                  13
The MHTC’s exhibits fail to support the allegations in Count IV. While the complaint alleges

that the October 14, 2005, trip that Redman made was intrastate, the record shows only an

interstate trip. Phillips stated in Petitioner’s Exhibit 12 that Redman’s October 14, 2005, trip

was from Cairo, Illinois, to Winona, Missouri, which makes it an interstate trip. The State

Highway Patrol’s ―Driver Vehicle Examination Report‖ of Redman’s truck on October 14, 2005,

describes the interstate origin and destination the same as in Phillips’ statement. There is nothing

in the MHTC’s submissions indicating that Redman’s October 14, 2005, trip was anything other

than interstate. Because the record does not support the allegation in the complaint, we deny the

motion.

       The MHTC’s exhibits fail to support the remaining allegations in Count IV. While the

exhibits show that Phillips' drivers made the alleged trips, the record is silent on whether Phillips

required a record of the drivers’ duty status. The only mention of a failure to meet this

requirement is in reference to trips taken in 2005, as set forth in Phillips’ statement in

Petitioner’s Exhibit 12. Since that statement is dated December 6, 2005, it necessarily fails to

reference any trips made in 2006. Since the record is silent on whether Phillips violated the

federal regulation during the 2006 trips, we deny the motion.

                                              Count V

       The MHTC contends in Count V:

                       19. On or about the dates below, Respondent violated 49
               CFR §395.8(k)(1) and §307.400, RSMo, in that it authorized the
               following employees to drive a commercial motor vehicle with a
               GVWR of 50,000 pounds while failing to maintain records of duty
               status and all supporting documents for its drivers for a period of
               six months from the date of receipt:

                    (a) Bryon Brooks transported property in interstate
               commerce on September 29, 2005;
                    (b) Bobby Edwards transported property in intrastate
               commerce on January 3, 2006; and

                                                  14
                      (c) Mackey Redman transported property in interstate
                 commerce on January 11, 2006.

49 CFR § 395.8 provides:

                 (k) Retention of driver’s record of duty status.

                 (1) Each motor carrier shall maintain records of duty status and all
                 supporting documents for each driver it employs for a period of six
                 months from the date of receipt.

                 (2) The driver shall retain a copy of each record of duty status for
                 the previous 7 consecutive days which shall be in his/her
                 possession and available for inspection while on duty.

                                           Count V ¶ 19(a)

       The MHTC’s exhibits establish only the allegations in regard to Brooks’ September 29,

2005 trip. Phillips presents nothing to genuinely dispute the allegations in the amended

complaint’s Count V, ¶ 19(a). Therefore, Phillips violated 49 CFR § 395.8(k)(1).

       The MHTC also contends that this same conduct violated § 307.400. Because Phillips

violated 49 CFR § 395.8(k)(1) in regard to Brooks’ September 29, 2005, trip, Phillips also

violated § 307.400.

       As with Count I, the MHTC contends in its motion that the conduct that violated the

federal regulation concurrently violated §§ 390.201 and 622.550. The MHTC did not allege in

its amended complaint that this conduct also violated these statutes.

       We grant the motion as to 49 CFR § 395.8(k)(1) and § 49 CFR § 395.8(k)(1) in ¶ 19(a).

For reasons set forth as to Count I, we deny the motion as to the alleged violations of §§ 390.201

and 622.55019 in ¶ 19(a).




       19
            RSMo 2000.

                                                  15
                                       Count V ¶ 19(b) and (c)

       The MHTC’s exhibits fail to support critical allegations in ¶ 19(b) and (c). The exhibits

support the allegations that Brooks made an intrastate trip with one of Phillips’ trucks on

January 3, 2006, from Mountain View, Missouri, to Belle, Missouri, and Bunker, Missouri, to

Scott City, Missouri and that Redman made an interstate trip from Winona, Missouri, to

Wickliffe, Kentucky, on January 11, 2006. However, there is no support for the allegation that

Phillips failed to maintain records of duty status and all supporting documents for his drivers for

six months from the date of receipt. Since the record is silent on the subject, we deny the motion

as to the allegations in Count V, ¶ 19(b) and (c). For reasons set forth as to Count I, we deny the

motion as to the alleged violations of §§ 390.201 and 622.55020 in ¶ 19(b) and (c).

                                              Count VI

       The MHTC contends in Count VI:

                        21. On or about September 29, 2005, Respondent violated
                 49 CFR §396.3(b) and §307.400, RSMo, in that it authorized
                 Bryon Brooks, Respondent’s employee, to drive a commercial
                 motor vehicle with GVWR of 50,000 pounds in interstate
                 commerce without maintaining the minimum records of inspection
                 and vehicle maintenance.

49 CFR § 396.3(b) provides:

                 (b) Required records—For vehicles controlled for 30 consecutive
                 days or more, except for a private motor carrier of passengers
                 (nonbusiness), the motor carriers shall maintain, or cause to be
                 maintained, the following record for each vehicle:

                     (1) An identification of the vehicle including company number,
                     if so marked, make, serial number, year, and tire size. In
                     addition, if the motor vehicle is not owned by the motor carrier,
                     the record shall identify the name of the person furnishing the
                     vehicle;




       20
            RSMo 2000.

                                                  16
                   (2) A means to indicate the nature and due date of the various
                   inspection and maintenance operations to be performed;

                   (3) A record of inspection, repairs, and maintenance indicating
                   their date and nature; and

                   (4) A record of tests conducted on pushout windows,
                   emergency doors, and emergency door marking lights on
                   buses.

The MHTC cites numerous exhibits in support of Count VI. While Phillips’ statement

establishes that Brooks made the September 29, 2005, trip, there is nothing to support the

allegation that Brooks made the trip ―without maintaining the minimum records of inspection

and vehicle maintenance.‖ The only reference in Phillips' statement to a trip made without the

documentation that 49 CFR § 396.3(b) requires is to Redman’s October 14, 2005 trip from Cairo,

Illinois to Winona, Missouri. But that trip is not the subject of the charge in Count VI.

Therefore, we deny the motion as to Count VI.

                                            Count VII

       The MHTC contends in Count VII:

                       23. On or about the dates below, Respondent violated 49
               CFR §396.11(a) and §307.400, RSMo, in that it authorized the
               following employees to drive the following commercial motor
               vehicles without requiring each driver to prepare a driver vehicle
               inspection report:

                               (a) Mackey Redman operated a commercial motor
               vehicle with a GVWR of 50,000 pounds while transporting
               property in intrastate commerce on January 16, 2006; and
                               (b) Bryon Brooks operated a commercial motor
               vehicle with a GVWR of 48,000 Pounds while transporting
               property in interstate commerce on January 17 and 19, 2006.

49 CFR §396.11(a) provides:

               (a) Report required . Every motor carrier shall require its drivers to
               report, and every driver shall prepare a report in writing at the



                                                 17
               completion of each day’s work on each vehicle operated and the
               report shall cover at least the following parts and accessories:

               --Service brakes including trailer brake connections
               --Parking (hand) brake
               --Steering mechanism
               --Lighting devices and reflectors
               --Tires
               --Horn
               --Windshield wipers
               --Rear vision mirrors
               --Coupling devices
               --Wheels and rims
               --Emergency equipment

While the MHTC’s exhibits establish that the alleged trips were made, they provide nothing to

show that the drivers failed to prepare driver vehicle inspection reports. As a result, we deny the

motion as to Count VII.

                                            Count VIII

       The MHTC contends in Count VIII:

                      25. On or about the dates below, Respondent violated 49
               CFR §396.17(a) and §307.400, RSMo, in that it authorized the
               following employees on the following dates to drive a commercial
               motor vehicle with a GVWR of 50,000 pounds in interstate
               commerce without having the commercial motor vehicle
               periodically inspected:

                       (a) Bryon Brooks – September 29, 2005 and
                       (b) Mackey Redman – October 14, 2005.

49 CFR § 396.17(a) provided:

               (c) A motor carrier shall not use a commercial motor vehicle
               unless each component identified in appendix G has passed an
               inspection in accordance with the terms of this section at least once
               during the preceding 12 months and documentation of such
               inspection is on the vehicle. . . .

Phillips admitted these violations in his statement, and the other exhibits cited support the

admission. Therefore, Phillips violated 49 CFR § 396.17(a) and § 307.400. We grant the motion

as to Count VIII.

                                                 18
                                               Count IX

       The MHTC contends in Count IX:

                        27. On or about the dates below, Respondent violated
                 §390.071, RSMo, in that it authorized its employees to operate the
                 following commercial motor vehicles on the following dates to
                 transport property in interstate commerce for hire without the
                 proper permit issued by MoDOT’s Motor Carrier Services
                 Division:

                         (a) Respondent authorized its employee to operate a
                 commercial motor vehicle with a licensed weight of 80,000 pounds
                 to transport property on September 8 and 9, 2005;
                         (b) John Underwood operated a commercial motor vehicle
                 with a licensed weight of 80,000 pounds while transporting
                 property on October 31, 2005;
                         (c) Mackey Redman operated a commercial motor vehicle
                 with a GVWR of 50,000 pounds on November 1, 2005 and
                 January 13, 2006;
                         (d)Bryon Brooks operated a commercial motor vehicle with
                 a GVWR of 50,000 pounds on November 4, 2005; and
                         (e) Lee Smith operated a commercial motor vehicle with a
                 GVWR of 50,000 pounds on January 3, 4, 10, and 11, 2006.

Section 390.071 provides:

                          1. No person shall engage in the business of a motor
                 carrier in interstate commerce on any public highway in this state
                 unless there is in force with respect to such carrier a permit issued
                 by the division of motor carrier and railroad safety authorizing
                 such operations.

The exhibits support the allegations in Count IX, especially Phillips' December 26, 2005,

statement and his February 6, 2006 statement, as to having authorized Smith’s January 2006

interstate trips without a Missouri permit. Phillips presents nothing to genuinely dispute the

allegations in Count IX. Therefore, Phillips violated § 390.071.21 We grant the motion as to

Count IX.




       21
            RSMo 2000.

                                                   19
                                             Count X

       The MHTC contends in Count X:

                      29. On or about the dates below, Respondent violated
               §390.270, RSMo, in that it authorized Bobby Edwards,
               Respondent’s employee, to transport property in intrastate
               commerce for hire without the proper permit issued by MoDOT’s
               Motor Carrier Services Division:

                       (a) January 3, 5, 6, 9, and 10, 2006.

Section 390.27022 provides:

               Except as otherwise provided in section 390.030, no person shall
               engage in the business of transporting property, except household
               goods, by motor vehicle for hire or compensation in intrastate
               commerce on any public highway in this state, unless there is in
               force with respect to that person a property carrier registration
               issued by the division pursuant to the provisions of sections
               390.260 to 390.350, which authorizes such transportation.

The exhibits, especially Phillips’ admissions on page 2 of Petitioner’s Exhibit 13, establish the

allegations under Count X. Phillips presents nothing to genuinely dispute the allegations in

Count X. Therefore, Phillips violated § 390.270.23 We grant the motion as to Count X.

                                            Summary

       We grant the motion in part as to Counts I, II, and III and to all of Counts VIII, IX, and X.

We deny the motion in part as to Counts I, II, and III as to the alleged violations of §§ 390.201 and

622.550.24 We grant the motion in part as to Count V. We deny the motion as to Counts IV, VI

and VII.




       22
          RSMo 2000.
       23
          RSMo 2000.
       24
          RSMo 2000.

                                                20
       The MHTC shall inform us by January 11, 2008 whether it will proceed to hearing on the

rest of the amended complaint.

       SO ORDERED on January 8, 2008.



                                              ________________________________
                                              JUNE STRIEGEL DOUGHTY
                                              Commissioner




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