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
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ustices
