NO. 83-203 INTHE SUPREfilE COURT OF THE STATE OF PlOPJTANA 1983

STATE OF MONTANA, ex rel., DEPARTMENT OF HEALTIS AND ENVIRO?JEIENTAL SCIENCES, Plaintiffand Respondent,

-vsCECIL L. BERPJEIARD, Defendantand Appellant.

APPEAL FROM: DistrictCourtof theNineteenthJudicial District, Inand for the County of Lincoln, The Honorable RobertM. Holter, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Jeffrey Shron, Missoula, Montana

ForRespondent: WilliamA. Douglas, CountyAttorney, Libby, Montana

. ----A Submittedon Briefs: August 4, 1983 Decided: January 26, 1984 

### JU!V;!

### .: 

### 1;jgq Filed:Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
Cecil IJ. Bernhard appeals an order of Lincoln County District Court enjoining him from operating a motor vehicl-e wrecking faci-litywithout a license and ordering him to shield the junk vehicles frompublic view. The court,under section 75-10-542(2), MCA, imposed a fine of $50 per day for each day from t.he date of the order if Bernhard did not comply. The court also ordered the Departmentof Health and Environmental Sciences to remove the vehicles if Rernhard failed to follow the order. In his appeal, Bernhard argues that he rebutted the statutory presumption of section 75-10-502, MCA, that possession of four or more junk vehicles is operation of a. motor vehicl-ewrecking facility. He cl-aimstestimony of his two witnesses rehutted that presumption. Bernhard also argues that the state, not he, is responsible for shielding the junk vehicles. We affirm the trial court's decision. Bernhard was civilly charged July 2, 1979, with operating amotor vehicle wrecking facilitywithout a license invj.olationof section 75-10-511,MCA. The statute provides for both criminal and civil penalties in the form of a thirty-day jail term, fines of up to $250 and injunctions. Section 75-10-542,MCA. However,the State sought only civil penalties. The State requested an injunctj.on to prevent Bernhard from operating until he received a license, an injunction requiring him to either shield the junks or dispose of them, and a fine of $50 per day from January 1, 1979,for failing to have a license. Bernhard owns fifty to seventy-five old a.ndbattered

cars or their hulks. Under section 75-1-0-502, MCA,possession of four or more junk vehicles triggers the presumption of operating a motor wrecking facility. A motor wrecking facility is essentially a facility buying, selling, or dealing in junk vehicles with the purpose to wreck, dismantle or disa-ssemblethe cars, section 75-10-501(5),MCA. Junk vehicles are defined in section 75-10-501(3),MCA, as "a discarded, ruined, wrecked or dismantled vehicle which is not.

# .. licensed and is incapable ofbeina driven." A nonjury trial was held November 3.2, 1982, at which both the State and Bernhard presented witnesses

### ' testimony. The Statepresented the county sanitarian,who testified that Rernhard possessed four or more junk vehicles. Anderson testified that thevehicles are visible from twohighways and that Bernhard refuses to shield the vehicles,which he must do as a condition to obtaining a license. Bernhard attempted to rebut the statutory presumption with the testimony of two neighbors. They testified that they did not know if Bernhard was selling any cars or car hulks,but knewthatBernhard did not advertise as a wrecking facility. However, this testimony, on its face, does not

overcome the statutory presumption of operating a wrecking facility. Rernhard's own testimony was that he used car parts from the junks to reassembleand repair cars and trucks he owned. The trial. judge also found!that Rernhard did not rebut the presumptionand ruled thatRernhard was operatinu a wrecking facility without a license. The trial court gave Bernhard the option to shield. the vehicles or allow the Department ofHealth and Environmental Sciences to remove all but three of the junked cars. The trial judge also imposed the statutory civil penalty of $50 per day from May 1, 1983, if Bernhard failed to shield thevehicles or dispose of them,section 75-10-542(2), MCA. Execution was stayed pending appeal to thisCourt. The trial court's findings are supported by substantial evidence, and the presumption of operating a wrecking facility is permissible in this civil context. Bernhardwas previously criminally convicted for noncompliance with the statutory requirements to obtain a license. State v. Bernhard (1977), 173 Mont. 464, 568 P.2d 136. However, this most recent action was not based on that conviction but pursued. under the civil en.£ orcement provision of section 75-10-541, MCA, which provides for injunction and fines for noncompliancewith the statute. Bernhard refused to comply with the statutes. Enforcement was properly pursued by the civil remedies available to the State. We affirm the trial court's injunction and imposition of civilpenalties. Assuming his possession of junk cars is tanta-mountto operating a wrecking facility,Bernhard then claims that the State is responsible for shielding the junk cars. However, this would be true only if he had operated a properly licensed wrecking facility before 1967. Bernhard did not have a license to operate a wrecking facility in 1967, and the current statute requires him to shield the vehicles to obtain a license, section 75-10-504, MCA. In addition, an administrative regulation applies here. If Rernhard chooses to remove all but three junk vehicles, S 16.14.206, A.R.M., requireshim to shield one to three junkvehicles. The trial court's decision is affirmed.We concur: 

# \;-.]$$-c?&~k ustices