William K. Bryant vs. Safety

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law September 2013 William K. Bryant vs. Safety Follow this and additional works at: This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: ) ) DEPARTMENT OF SAFETY ) ) v. ) DOCKET NO J ) DOS Case No. N2905 One 2005 Chevrolet Equinox ) VIN: 2CNDL63F ) Seized from: William Bryant ) Date of Seizure: 11/29/12 ) Claimant: William Bryant ) Claimant: Roxanne Miller ) Lienholder: None ) ORDER This matter was heard on May 8, 2013, before Marion P. Wall, Administrative Law Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety in Cookeville, Tennessee. Ms. Allyson Kennedy, Staff Attorney for the Department of Safety, represented the State. Claimant William Bryant was not present, nor did counsel appear on his behalf. Ms. Roxanne Miller, the second claimant, was present and represented herself. The State s attorney has represented that no other person or entity with an interest in this property has filed a claim in this matter after receiving proper notice of the seizure, other than the two Claimants above At the beginning of the hearing, counsel for the State made an oral motion, pursuant to T.C.A and Tennessee Department of Safety Rule , for an order finding the Claimant William Bryant to be in default. In support of its motion, the State introduced evidence that notice was mailed to the Claimant by certified mail to the address given by Claimant in the Petition for Hearing. A return receipt indicates that the Notice was received and

3 signed for at that address. Additionally, there was testimony that he was aware of the time and place of the hearing. Based on this evidence, the motion of the State was GRANTED, the Claimant was found in DEFAULT. NOTICE OF DEFAULT NOTICE IS HEREBY GIVEN THE CLAIMANT THAT HE HAS BEEN HELD IN DEFAULT FOR FAILURE TO APPEAR AT A HEARING ON THE MERITS AFTER RECEIVING ADEQUATE NOTICE. T.C.A CLAIMANT HAS 15 DAYS FROM THE EFFECTIVE DATE OF THIS ORDER TO REQUEST THAT THIS FINDING OF DEFAULT BE SET ASIDE. THIS REQUEST MUST BE RECEIVED IN THE OFFICE OF THE SECRETARY OF STATE, ADMINISTRATIVE PROCEDURES DIVISION, 312 8TH AVENUE NORTH, 8TH FLOOR, WILLIAM R. SNODGRASS TOWER, NASHVILLE, TENNESSEE THE REQUEST TO HAVE THE FINDING OF DEFAULT SET ASIDE SHOULD INCLUDE THE REASONS TO JUSTIFY THE CLAIMANT S FAILURE TO ATTEND. IF CLAIMANT DOES NOT REQUEST THE DEFAULT BE SET ASIDE OR OTHERWISE APPEAL THE ACCOMPANYING INITIAL ORDER, THEN THE INITIAL ORDER WILL BECOME A FINAL ORDER SUBJECT TO COURT REVIEW. ANY QUESTIONS REGARDING THIS NOTICE OF DEFAULT OR THE STEPS NECESSARY TO HAVE IT SET ASIDE SHOULD BE SUBMITTED TO THE ADMINISTRATIVE JUDGE SIGNING THIS ORDER BY LETTER OR BY TELEPHONING (615) The Motion for Default having been granted, the State chose not to conduct the proceeding without the participation of the Claimant, therefore, the proceeding was adjourned.

4 THEREFORE pursuant to Department of Safety Rule (2) (b), this claim is hereby STRICKEN. Further, Claimant William Bryant s interest in the property described above is HEREBY FORFEITED to the seizing agency. A hearing was held concerning the claim of Ms. Roxanne Miller. After consideration of the entire record, it is determined that Ms. Miller s interest should be forfeited to the seizing agency as well. It is therefore ORDERED that the subject vehicle be forfeited to the seizing agency. This determination is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. On November 29, 2012, Claimant William Bryant was stopped while driving the subject vehicle because the arresting officer was aware the Mr. Bryant s license had been revoked, because he had seized a motorcycle from him the previous July for the same thing. Mr. Bryant s license was revoked for DUI. 2. The vehicle at issue in this case is co-owned by the Claimants. At the time of the seizure of the motorcycle, the officer told Claimant Miller that the same would happen were Mr. Bryant found driving the vehicle now at issue, because his license had been revoked for DUI. 3. Ms. Miller needs the vehicle in her everyday life. She was aware that Mr. Bryant s license had been revoked for DUI. She shared ownership with him, and did not prevent him from using the vehicle, or take any steps to do so. In short, she was aware he used the vehicle, and that his license was revoked for DUI.

5 CONCLUSIONS OF LAW 1. The State bears the burden of proof in this matter by a preponderance of the evidence.. 2. T.C.A provides in pertinent part: (a) The following are subject to forfeiture: (4) (A) All conveyances, including aircraft, vehicles or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale or receipt of property described in subdivision (a)(1) or (2), but: (B) no conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without such owner's knowledge or consent (C) A conveyance is not subject to forfeiture for a violation of (a) or (b) or T.C.A (a)(2) provides that the interest of an owner of seized property shall not be forfeited unless the State proves by a preponderance of evidence that the owner knew the property was being used in a manner making it subject to forfeiture. 4. The proof shows that the subject vehicle was being operated by Mr. Bryant, with the knowledge of the Claimant Miller. That is all the law requires. It is therefore ORDERED that the subject vehicle be forfeited to the seizing agency. This Initial Order entered and effective this day of Marion P. Wall Administrative Law Judge

6 Filed in the Administrative Procedures Division, Office of the Secretary of State, this day of J. Richard Collier, Director Administrative Procedures Division