Mata v. Dep't of Transp.
| Decision Date | 10 June 2020 |
| Docket Number | A165061 |
| Citation | 467 P.3d 809,304 Or.App. 635 |
| Parties | Jai MATA and Jai Mata Joe's Trucking, Inc., Petitioners, v. DEPARTMENT OF TRANSPORTATION, Respondent. |
| Court | Oregon Court of Appeals |
Gordon T. Carey, Jr., Portland, argued the cause and filed the briefs for petitioners.
Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.
Petitioners, Jai Mata and Jai Mata Joe's Trucking, Inc., are interstate motor carriers subject to Oregon's weight mile tax program when operating motor vehicles on Oregon highways. They seek judicial review of a final order of the Oregon Department of Transportation (ODOT), Motor Carrier Transportation Division (MCTD), assessing highway use taxes against them. Petitioners do not challenge the assessed taxes. Instead, they challenge the first finding of fact in the background section of the final order, specifically assigning error to the MCTD administrator's (1) characterization of Joseph Chand as the "sole proprietor" rather than the "principal" of Jai Mata, (2) the deletion of the administrative law judge's (ALJ) proposed statement that petitioners are "operations of the same business entity" for ODOT accounting purposes, and (3) the addition of language that petitioners are "two separate entities" for ODOT accounting purposes. ODOT responds that the only issues before the ALJ and the MCTD administrator (administrator) were whether, and how much, petitioners owed in highway use taxes, neither of which petitioners contest on judicial review. ODOT argues that the finding of fact concerning the business structure of Jai Mata and its relationship to Chand and to Jai Mata Joe's Trucking, Inc., was not in dispute at the hearing, not relevant to any material issue at the hearing, and, thus, petitioners’ assignments of error do not provide a basis for us to reverse or remand the final order. We agree with ODOT and affirm.
ORS 825.474(1) establishes a highway use tax that is imposed upon and collected from "carriers *** for the maintenance, operation, construction and reconstruction of public highways." A "carrier" is defined as a "for-hire carrier." ORS 825.005(1). A "for-hire carrier," in turn, is defined as "[a]ny person who transports persons or property for hire *** by motor vehicle." ORS 825.005(7)(a). Notably, the highway use tax statutes do not distinguish motor carriers by business structure. The tax is imposed on any for-hire carrier that transports persons or property on Oregon roads by motor vehicle.
In this contested case, ODOT—through the administrator—was authorized to "modify a finding of historical fact" made by the ALJ if the administrator determined there was "clear and convincing evidence in the record that the finding was wrong." ORS 183.650(3). If she modified such a finding in a "substantial manner," the agency had a duty to identify and explain the modification. ORS 183.650(2). We review modified findings de novo , applying a preponderance of the evidence standard. See Bice v. Board of Psychologist Examiners , 281 Or. App. 623, 629, 383 P.3d 913 (2016). If we find that the agency erred in modifying the fact, we are obligated to remand to the agency for entry of an order consistent with our judgment. ORS 183.650(4). We review additional findings made by the agency for substantial evidence under ORS 183.482(8)(c).
The administrator made extensive findings of fact in her final order based, for the most part, on the ALJ's proposed final order. All but the first of those findings are unchallenged and, therefore, are binding on judicial review. Lee v. Appraiser Certification and Licensure Board , 160 Or. App. 622, 624, 981 P.2d 825 (1999). As pertinent to our review, the undisputed facts are that Jai Mata applied for and was granted a motor carrier account in August 2011. It was assigned an MCTD account number of 148988. Jai Mata Joe's Trucking, Inc., applied for and was granted a motor carrier account in December 2012. It was assigned an MCTD account number of 163222.1
Petitioners filed a notice in this court, post-oral argument, seeking to submit the applications for the MCTD accounts for Jai Mata and Jai Mata Joe's Trucking, Inc. We treated the notice as a motion to supplement the record, ODOT filed its objections to inclusion of the applications in the record, and we reserved our ruling for an opinion on the merits. For the following reasons, we now conclude that petitioner's motion to supplement the record is allowed. The record reflects that the applications were submitted to the ALJ on March 27, 2017, by counsel for ODOT in an email referencing petitioners’ objection to the proposed order. The ALJ issued her response to the objections later that same day. It is clear that the applications were considered in the hearing process leading up to the final order. While the record "closed" as of September 16, 2016, the ALJ received and considered additional submissions as s...
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