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Sample v. North Dakota Dep't of Transportation

December 2, 2009

LARRY SAMPLE, D/B/A SAMPLE AUTO SALES, PETITIONER AND APPELLANT
v.
NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, RESPONDENT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

[¶1] Larry Sample, doing business as Sample Auto Sales, appeals a district court's judgment affirming the Department of Transportation's order suspending his motor vehicle dealer's license for three days. We affirm the district court's judgment.

I.

[¶2] On September 15, 2007, Sample sold a 1999 Dodge pickup to a customer. Sample issued a "Notary Public or Dealer Certificate of License Application" to the customer. According to Sample, the customer promised to return the following day to pay for the vehicle, but she did not return until the following spring.

[¶3] On March 12, 2008, a North Dakota Highway Patrol Officer stopped the customer's husband in the pickup for speeding. When the officer approached the vehicle, he noticed the pickup had a notary sticker that was more than thirty days old and no license plates. The officer ran a registration search and discovered the title was in a third party's name. The officer did not issue any citations, but reported this discrepancy to the North Dakota Department of Transportation. After the stop, the customer returned to Sample's dealership and made arrangements with Sample to finance and license the vehicle. On March 25, 2008, the Department received the application and remittance fee for the pickup, and it was transferred into the customer's name.

[¶4] On May 27, 2008, the Department sent Sample a notice of opportunity to respond for violating N.D.C.C. § 39-04-17. Sample sent a letter to the Department explaining he had been looking for the vehicle since it was sold, the customer brought the vehicle back, a finance contract was signed, and the vehicle was licensed with a delivery date of September 2007. On June 16, 2008, the Department notified Sample it intended to suspend his dealer's license under the applicable provisions of N.D.C.C. ch. 39-22 for violating N.D.C.C. § 39-04-17. Sample requested a hearing that was held on September 4, 2008. The administrative law judge ("ALJ") issued recommended findings of fact, conclusions of law, and order suspending Sample's dealer's license for three days. The Department adopted the ALJ's decision and issued an order suspending Sample's dealer's license for three days. Sample appealed the order to the district court. On March 10, 2009, the district court entered a judgment affirming the Department's order. Sample appeals from the district court's judgment.

II.

[¶5] On appeal, "we review the agency's decision and record compiled before the agency while giving respect to sound reasoning of the district court." People to Save the Sheyenne River v. N.D. Dep't of Health, 2005 ND 104, ¶ 15, 697 N.W.2d 319. Section 28-32-49, N.D.C.C., provides this Court with authority to review the order of the agency in the same manner provided by N.D.C.C. § 28-32-46. This Court must affirm the Department's order unless one of the eight statutory factors is present under N.D.C.C. § 28-32-46:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a ...


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