STATE v BERNHARD
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NO. 83-203 I N THE SUPREfilE COURT O F THE STATE OF PlOPJTANA 1983 STATE O F MONTANA, ex r e l . , DEPARTMENT OF HEALTIS AND ENVIRO?JEIENTAL SCIENCES, P l a i n t i f f and R e s p o n d e n t , -vsCECIL L. BERPJEIARD, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of L i n c o l n , The H o n o r a b l e R o b e r t M. H o l t e r , Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: J e f f r e y Shron, M i s s o u l a , Montana F o r Respondent: W i l l i a m A. Montana Douglas, County Attorney, Libby, . S u b m i t t e d on B r i e f s : Decided: Filed: JU!V ; .: 1;jgq ! A August 4, 1983 January 2 6 , 1984 Mr. Justice Daniel J. Court. Cecil IJ. Bernhard Shea delivered the Opinion of the appeals an order of Lincoln County District Court enjoining him from operating a motor vehicl-e wrecking faci-lity without a license and ordering him shield the junk vehicles from public view. to The court, under section 75-10-542(2), MCA, imposed a fine of $50 per day for each day from t.he date of the order if Bernhard did not comply. The court also ordered the Department of Health and Environmental Sciences to remove the vehicles if Rernhard failed to follow the order. In his appeal, Bernhard argues that he rebutted the statutory presumption of section 75-10-502, MCA, that possession of four or more junk vehicles is operation of a . motor vehicl-e wrecking facility. He cl-aims testimony of his rehutted that presumption. two witnesses Bernhard also argues that the state, not he, is responsible for shielding the junk vehicles. Bernhard was We affirm the trial court's decision. civilly charged July 2, 1979, with operating a motor vehicle wrecking facility without a license in vj.olation of section 75-10-511, MCA. for both criminal and The statute provides civil penalties in the form of a thirty-day jail term, fines of up to $250 and injunctions. Section 75-10-542, MCA. penalties. Bernhard However, the State sought only civil The State requested an injunctj.on to prevent from operating until he injunction requiring him to received a license, an either shield the junks or dispose of them, and a fine of $50 per day from January 1, 1979, for failing to have a license. Bernhard owns fifty to seventy-five old a.nd battered cars or their hulks. Under section 75-1-0-502, MCA, possession of four or more junk vehicles triggers presumption of operating a motor wrecking facility. the A motor wrecking facility is essentially a facility buying, selling, or dealing in junk vehicles with the purpose to wreck, dismantle or disa-ssemblethe cars, section 75-10-501(5), MCA. Junk vehicles are defined in section 75-10-501(3), MCA, as "a discarded, ruined, wrecked or dismantled vehicle which is not. . . licensed and is incapable of beina driven." A nonjury trial was held November 3.2, 1982, at which both the State and Bernhard presented witnesses ' testimony. The State presented the county sanitarian, who testified that Rernhard possessed four or more junk vehicles. Anderson testified that the vehicles are visible from two highways and that Bernhard refuses to shield the vehicles, which he must do as a condition to obtaining a license. Bernhard attempted to rebut the statutory presumption with the testimony of two neighbors. They testified that they did not know if Bernhard was selling any cars or car hulks, but knew that Bernhard did not advertise as a wrecking facility. However, this testimony, on its face, does not overcome the statutory presumption of operating a wrecking facility. Rernhard's own testimony was that he used car parts from the junks to reassemble and repair cars and trucks he owned. The trial. judge also found! that Rernhard did not rebut the presumption and ruled that Rernhard was operatinu a wrecking facility without a license. The trial court gave Bernhard the option to shield. the vehicles or allow the Department of Health and Environmental Sciences to remove all but three of the junked cars. The trial judge also imposed the statutory civil penalty of $50 per day from May 1, 1983, if Bernhard failed to shield the vehicles or dispose of them, section 75-10-542 (2), MCA. Execution was stayed pending appeal to this Court. The trial court's findings are supported by substantial evidence, and the presumption of operating facility is permissible in this civil context. a wrecking Bernhard was previously criminally convicted for noncompliance with the statutory requirements to obtain a license. Bernhard (1977), 173 Mont. 464, 568 P.2d 136. State v. However, this most recent action was not based on that conviction but pursued. under the civil en.£ orcement provision of section 75-10-541, MCA, which provides for injunction and fines for noncompliance with the statute. Bernhard refused Enforcement was available to to properly the State. comply pursued We with by the the affirm the statutes. civil trial remedies court's injunction and imposition of civil penalties. Assuming his possession of junk cars is tanta-mount to operating a wrecking facility, Bernhard then claims that the State is responsible for shielding the junk cars. this would be true only if he had However, operated a properly licensed wrecking facility before 1967. Bernhard did not have a license to operate a wrecking facility in 1967, and the current statute requires him to shield the vehicles to obtain a license, section 75-10-504, MCA. administrative regulation applies here. In addition, an If Rernhard chooses to remove all but three junk vehicles, S 16.14.206, A.R.M., requires him to shield one to three junk vehicles. The trial court's decision is affirmed. W concur: e \;-.]$$- c? &~k ustices
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