Friday, February 18, 2011

Virginia Hauling Permits: Permit Terms Violations

Jeffrey E. Cox, Esq.

    As I have noted in a previous post, “Virginia Hauling Permits: The Fine Print Could Cost You” (December 10, 2010), the fine print on Virginia hauling permits contains important terms motor carriers need to read carefully. This post addresses the penalties for a violation of the terms of a hauling permit.

    Virginia’s law enforcement will sometimes improperly invalidate a motor carrier’s hauling permit if they find the motor carrier has violated a term in the permit. However, under the Virginia Code and the Virginia Hauling Permit Manual published by the Department of Motor Vehicles permit invalidation is frequently not the appropriate sanction.

    To illustrate, consider the following case our firm defended. A motor carrier was hired to transport a large refrigeration unit from a Norfolk naval base to its manufacturer in Pennsylvania. The carrier obtained a permit that would allow it to transport 100,000 pounds. The carrier had transported similar units along the same route in the past and its drivers knew to ensure all the water had been drained out of the unit before it was loaded on the truck. On this occasion the driver forgot to check to see if the water was drained. The shipment had a total weight of 101,540 pounds, 1,540 pounds over the weight it was permitted to transport. When the carrier was stopped at a weigh station and the oversight discovered, the State Trooper invalidated the hauling permit. In computing the citation he charged the carrier for every pound over the 80,000 pound max weight trucks can carry in Virginia without a permit resulting in a $21,500 fine.     

    In this case, the Trooper’s actions were improper. Virginia law does not allow him to invalidate the underlying hauling permit when computing the sanction. See Virginia Code § 46.2-1139(D). If a police officer discovers a carrier has violated a term in its hauling permit, the officer may invalidate the weight allowed under the permit only if the carrier is: (1) operating off the permitted route (2) the vehicle has fewer axles than required by the permit (3) the vehicle has less axle spacing than what is required by the permit and (4) the vehicle is transporting multiple items not allowed by the permit.
Carrying more weight than is allowed under the permit is a breach of the terms of the permit, but not one that allows an officer to invalidate the underlying hauling permit. In the case of the overweight refrigeration unit above, the appropriate sanction would have been to fine the motor carrier for the difference between its vehicle’s actual weight and the weight allowed under its permit or the officer could have detained the vehicle until it met its permitted weight.  

Another example is a carrier who contacted us after receiving a $30,000 citation. This carrier was transporting an overweight shipment through Virginia and had purchased a hauling permit to allow it to transport 136,000 pounds. The permit terms mandated that the carrier have escorts for part of its journey. The carrier stayed on the route mandated by the permit, but failed to hire escorts and was stopped by a State Trooper who noticed the deficiency. The large amount of the citation was due to the officer invalidating the weight the carrier was allowed to transport under the permit for its failure to comply with the permit terms. Under Virginia Code §46.2-1139(D) the citation penalty was improper, because the carrier’s violation was not one of the four specified exceptions.  

The Virginia Administrative Code also addresses this issue, specifically 24 VAC 20-81-230(D). This section restates the rules specified in § 46.2-1139(D), but states what an officer may do if he finds a violation of a permit term that is not one of the four exceptions:

“Law-enforcement officials or weight-enforcement officials may direct the vehicle to a safe location, at the permittee’s expense, and detain the vehicle configuration until it meets all the requirements of the hauling permit or until a new hauling permit is issued if the vehicle is not [1] traveling with escorts as required by the permit; [2] if the vehicle is traveling outside the hours specified within the permit; [3] if the vehicle is traveling outside the hours specified within the permit; [4] if the driver does not have the entire permit in the vehicle; [5] if the hauling permit has been invalidated or confiscated due to one of the conditions listed in subsection C of this section; [6] if the vehicle is over the permitted weight; [7] or if law enforcement deems the vehicle to be violating any safety requirement.” 24 VAC 20-81-230 (D).

Virginia police officers may not be able to invalidate a hauling permit for the violation of its terms, but they can inflict serious expense on a motor carrier by holding it in place until its vehicle and shipment is in compliance.

    Motor carriers need to ensure that they closely read all the terms and conditions listed on any Virginia hauling permit issued to them. As the two cases discussed illustrate,the potential penalties for not doing so are serious. If your company has received a citation, contact us. Our firm has the knowledge and experience to defend you.