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DOT attorney sends letter to county about steel wheel ordinance

By Jean Caspers-Simmet
simmet@agrinews.com

Date Modified: 10/03/2012 10:14 AM

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AMES, Iowa —The Iowa Department of Transportation general counsel has written a letter to Mitchell County Attorney Mark Walk to clear up confusion as to the department's position with respect to the county's steel wheel ordinance.

In the Sept. 7 letter, David S. Gorham, special assistant attorney general, said the DOT and his office have been contacted by numerous individuals about this issue.

"DOT has always provided the same response to all who inquire, but it seems that DOT's response has not always been accurately conveyed to others," Gorham wrote.

Mitchell County Attorney Mark Walk told the supervisors at the Aug. 28 board meeting that he had been in contact with the DOT and their attorneys, and "they say they will be up here and will enforce the state law and will be at all the hearings and will bring their experts up to testify."

The Mitchell County Supervisors approved Steel or Metal Wheel Ordinance 46 at their Sept. 4 board meeting. The ordinance closely follows the wording of Iowa Code 321.442, except that fines are larger. The state fine is $20. Mitchell County's fines are $500 for the first offense, $750 for the second and $1,000 for the third.

He said that his office hasn't received a copy of the proposed ordinance, but based upon a conversation with supervisor Stan Walk he understood that the language of the ordinance is "identical to the language of Iowa Code sections 321.441 and 321.442, but the fine amount is significantly greater."

"As I explained to Mr. Walk, if this ordinance is challenged, DOT may or may not intervene in that challenge depending on the issue raised and whether we believe the specific issues raised relate to or have a negative impact on 321.441 and 321.442," Gorham wrote. "DOT has not (and will not) guarantee to 'take over the defense of the ordinance' in the event such a challenge is made."

Iowa Code section 321.441 was originally passed in 1919 and the current version is the result of the last amendment to the statue that occurred in 1973. Iowa Code Section 321.442 was originally passed in 1911 and the current version is the result of the last amendment to that statute that occurred in 1970.

"So these statutes have stood the test of time and should be viewed in that context and not necessarily in the context of any specific recent facts that may be involved in a future challenge to your Mitchell County ordinance," Gorham wrote.

Gorham explained that 321.441 and 321.442 are part of a broader framework that allows the DOT to recover damages to highways caused by any vehicle.

"DOT does not rely on the fine assessed for a violation of either of these sections to recoup damage to its roads," Gorham wrote. "Instead, DOT must prove its entitlement to damages in a civil proceeding. This broader statutory framework further distinguishes DOT's situation from that of Mitchell County."

Gorham also wrote that "although DOT's Motor Vehicle Enforcement officers do have legal authority to enforce violations of law like any other peace officers in the state of Iowa, DOT's MVE officers will not be specifically dispatched to Mitchell County for the purpose of enforcing this ordinance."

Enforcing the ordinance is a matter for local law enforcement.

"And even if an MVE officer on patrol in Mitchell County did observe an activity that was causing damage to the highway (whether steel-wheel related or not) that officer would issue a citation under the above-referenced existing state statues, which are time-tested and part of DOT's overall statutory authority," Gorham wrote.