STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
02 EHR 0191
COUNTY OF DURHAM
HELEN R. BASS
Petitioner,
v.
COUNTY OF DURHAM
Respondent.
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DECISION
COMING BEFORE the undersigned Judge for the Office of Administrative Hearings was a
Motion by the Respondent, County of Durham to dismiss the Petition for a Contested Case Hearing
filed by Petitioner, Helen R. Bass, and a Motion by Petitioner, Helen R. Bass, to dismiss the
County’s Civil Penalty Assessment against the Petitioner, Helen R. Bass, with both Petitioner and
Respondent filing Briefs, response Briefs, and Affidavits in support of their motions. Respondent’s
Motion to Reconsider, filed on May 28, 2002, specifically was considered.
Based on all matters of records, the undersigned Administrative Judge makes the following
findings of fact and conclusions of law:
FINDINGS OF FACT
The undersigned finds the following facts to be true by the greater weight of the evidence:
1.
The Petitioner, Helen R. Bass, filed a Petition for a Contested Case Hearing, with a
Certificate of Service dated February 1, 2002, and that said Petition was filed within thirty days of
January 23, 2002.
2.
That the Petition contested service of a Notice of Violation and Notice of Civil Penalty
Assessment and alleged that Petitioner, Helen R. Bass, first became aware of the right to file a
Petition for a Contested Case Hearing, hence, a right to an Administrative Hearing, on January 23,
2002.
3.
That there was a Notice of Civil Penalty Assessment dated February 9, 2001, issued by the
County of Durham pursuant to § 14-69(b) of the Durham County/City Sedimentation and Erosion
Control Ordinance, said Notice of Civil Penalty Assessment being addressed to Helen R. Bass at her
dwelling house, and advised her that she was assessed a civil penalty of $705.70 per day for violation
of the Durham County/City Sedimentation and Erosion Control Ordinance for property at 4310
Bennett Memorial Road. The Notice of Civil Penalty Assessment advised Helen R. Bass of her right
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to file a Petition for a Contested Case Hearing with the Office of Administrative Hearings within
thirty days of receipt of the Notice, and that failing to file a petition within thirty days would waive
the right to a review.
4.
That the Durham County/City Sedimentation and Erosion Control Ordinance § 14-69(b)
requires that a person against whom a Civil Penalty Assessment is imposed shall be notified of the
amount of the penalty and the reason for the penalty and that this Notice of Civil Penalty shall be
served by any means authorized under G. S. § 1A-1, Rule 4.
5.
That the Notice of Civil Penalty Assessment issued by Durham County was dated February 9,
2001 and service pursuant to Rule 4 was attempted by Certified Mail, Return Receipt requested,
Non-Restricted Delivery with said Certified Mail addressed to Petitioner by her name and addressed
to her at her dwelling house 4457 Murphy School Road, Durham, N.C. 27705 and deposited on
February 9, 2001.
6.
That said Certified Mail of the Notice of Civil Penalty Assessment addressed to Helen R.
Bass for a violation of the Durham County/City Sedimentation and Erosion Control Ordinance at
4310 Bennett Memorial Road was delivered to Steven D. Bass and the return receipt was signed by
Steven D. Bass on February 12, 2001 and that Steven D. Bass is the husband of the Petitioner, Helen
R. Bass.
7.
That the Petitioner, Helen R. Bass, has not appointed her husband, Steven D. Bass, as an
agent to receive service of process for her, that she does not customarily receive Certified or
Registered Mail and there is no customary practice or procedure where Steven D. Bass, signs for
Certified Mail addressed to Helen R. Bass.
8.
That the Petitioner, Helen R. Bass, did not sign the Certified Mail receipt for the Notice of
Civil Penalty Assessment issued on February 9, 2001 by the County of Durham and the Notice of
Civil Penalty Assessment was not delivered to her by her husband, Steven D. Bass.
9.
That the Petitioner, Helen R. Bass, first learned of the Notice of Civil Penalty Assessment
and of the right to file a Petition for a Contested Case in a meeting with her attorneys, Michael E.
Mauney and William J. Cotter on January 23, 2002.
10.
That the Respondent, County of Durham, made a timely Motion to Dismiss pursuant to Rules
12(b)(1) and 12(2) of the North Carolina Rules of Civil Procedure on the basis that the Petitioner,
Helen R. Bass, had failed to file a Petition for a Contested Case Hearing within thirty days of the
delivery of the Notice of Civil Penalty Assessment on Steven D. Bass on February 12, 2001, said
Notice of Civil Penalty Assessment sent by Certified Mail addressed to Petitioner at her dwelling
house at 4457 Murphy School Road, Durham, N.C. 27705 with the certified mail return receipt
signed by Steven D. Bass on February 12, 2001 and the Petitioner’s Petition for a contested case
hearing was not filed within thirty days of February 12, 2001.
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11.
That the Petitioner, Helen R. Bass, filed a timely Motion to Dismiss the Notice of Civil
Penalty Assessment, hence, the action of the County of Durham for a penalty assessed against her for
violation of the Durham County/City Sedimentation and Erosion Control Ordinance pursuant to Rule
12(b)(5) of the North Carolina Rules of Civil Procedure for failure to serve the Notice of Civil
Penalty Assessment on her pursuant to Rule 4 of the North Carolina Rules of Civil Procedure as is
required by § 14-69(b) of the Durham County/City Sedimentation and Erosion Control Ordinance.
12.
That the County of Durham filed Affidavits that established that Jocelyn Dennis, an
employee of the County of Durham sent, by Certified Mail, Return Receipt Requested, NonRestricted Delivery, the Notice of Civil Penalty Assessment concerning the property at 4310 Bennett
Memorial Road to Helen R. Bass at 4457 Murphy School Road, Durham, North Carolina 27705, and
that the Notice of Civil Penalty Assessment was signed for by Steven D. Bass with the return receipt
signed by Steven D. Bass on February 12, 2001.
13.
That the Petitioner, Helen R. Bass, filed Affidavits that establish that the Notice of Civil
Penalty Assessment was signed for by her husband, Steven D. Bass, and the return receipt was
signed by Steven D. Bass, that the Petitioner, Helen R. Bass does not customarily receive Certified
Mail and that there is no customary practice or procedure where Steven D. Bass signs for Certified
Mail addressed to Helen R. Bass. The Affidavits further establish that Steven D. Bass did not deliver
the Notice of Civil Penalty Assessment to Helen R. Bass and that Helen R. Bass did not learn of the
Notice of Civil Penalty Assessment against her until January 23, 2002 in her attorney’s office.
14.
The Petition for a Contested Case Hearing was filed within thirty days of January 23, 2002,
hence was timely filed pursuant to Durham County/City Sedimentation and Erosion Control
Ordinance § 14-69(b).
15.
N.C. General Statutes § 1-75.10(4) provides, in pertinent part:
(4)
Service by Registered or Certified Mail. – In the case of service by registered
or certified mail, by affidavit of the serving party averring:
(a) That a copy of the summons and complaint was deposited in the post
office for mailing by registered or certified mail, return receipt
requested;
(b) That it was in fact received as evidenced by the attached registry receipt
or other evidence satisfactory to the court of delivery to the addressee;
and
(c) That the genuine receipt or other evidence of delivery is attached.
CONCLUSIONS OF LAW
The undersigned makes the following conclusions of law:
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1.
That the Petitioner, Helen R. Bass, timely filed a Petition for a Contested Case Hearing and
timely filed Motions contesting service pursuant to Rule 4 of the Notice of Civil Penalty Assessment
upon her.
2.
That the County’s Affidavits establish that the Certified Mail was served on and signed for
by Petitioner’s husband, Steven D. Bass, but do not establish that the Notice of Civil Penalty
Assessment was, in fact, received by Helen R. Bass or was, in fact, delivered to Helen R. Bass, and
that the Affidavits filed by the County of Durham failed to establish proof of service of process
pursuant to North Carolina General Statute 1-75.10.
3.
That the Notice of Civil Penalty Assessment against the Petitioner, Helen R. Bass, should be
dismissed without prejudice pursuant to Rule 12(b)(5) of the North Carolina Rules of Civil
Procedure for failure to serve the Notice of Civil Penalty Assessment upon her pursuant to Rule 4 of
the North Carolina Rules of Civil Procedure and pursuant to County Ordinance § 14-69(b).
DECISION
1.
Respondent’s Motion to Reconsider is DENIED on the grounds that Respondent is unable to
show in fact service of the civil penalty assessment upon Helen R. Bass personally as required by
G.S. 1-75.10(4) when Defendant (Petitioner) appears in the action and contests service of process.
2.
That the County’s Motion to Dismiss the Petition for a Contested Case Hearing for failure of
the Petitioner, Helen R. Bass, to timely file a Petition for a Contested Case Hearing should be, and
hereby is, denied.
3.
That the Petitioner’s Motion to Dismiss the Notice of Civil Penalty Assessment against her
for failure to serve the Civil Penalty Assessment pursuant to Rule 4 of the North Carolina Rules of
Civil Procedure and pursuant to Durham County Sedimentation and Erosion Control Ordinance 1469(b) should be, and hereby is, allowed, and that said Notice of Civil Penalty Assessment is
dismissed without prejudice.
ORDER
It is hereby ordered that the agency serve a copy of the FINAL DECISION on the Office of
Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with
N.C. Gen. Stat. § 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by the
agency making the final decision according to the standards found in G.S. 150B-36(b)(b1) and (b2).
The agency making the final decision is required to give each party an opportunity to file exceptions
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to the decision of the Administrative Law Judge and to present written argument to those in the
agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the County of Durham.
This the 26th day of June, 2002.
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Beecher R. Gray
Administrative Law Judge
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