State v. Ford ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 120,841
120,842
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
NICHOLAS FORD,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; ROBERT G. SCOTT, magistrate judge. Opinion filed February
5, 2021. Affirmed.
David S. Bell and Sheena Foye, of Wyrsch Hobbs & Mirakian, P.C., of Kansas City, Missouri, for
appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before MALONE, P.J., HILL and BUSER, JJ.
PER CURIAM: Nicholas Ford appeals several convictions related to operating a
truck towing a fifth wheel recreational vehicle (RV) without a commercial driver's license
(CDL). Ford raises several arguments on appeal. First, he asserts the district court
miscalculated the weight of his vehicles for the purposes of determining whether he was
subject to the CDL requirements. Alternatively, he argues the CDL requirements did not
apply to him because he was engaged in private noncommercial use of the RV and
because an exemption for new RVs applied to him. Lastly, Ford claims that if the new
1
RV exemption does not apply to him, the exemption violates his equal protection rights
as a used RV seller.
Upon our review, we find no error and affirm the district court's judgment that
Ford operated a vehicle without the required CDL.
INTRODUCTION
Ford owns Central RV where he buys, sells, repairs, and rents fifth wheel RVs and
travel trailers. A fifth wheel RV is a trailer that rests on a unit attached to a towing
vehicle, like a truck. Ford appeals from convictions in two separate cases related to
driving a truck towing a fifth wheel RV without a CDL. Each case presents the two-fold
question of whether the vehicles Ford operated met the statutory definition of a
"commercial motor vehicle." If they did, then the inquiry becomes whether Ford was
required to have a CDL while operating the vehicles or whether he was exempt from the
CDL requirements.
Kansas has adopted the Uniform Commercial Driver's License Act (Act), K.S.A.
8-2,125 et seq., and it governs the operation of commercial motor vehicles. The Act
defines "commercial motor vehicle" in relevant part as a vehicle used to transport
passengers or property with a gross vehicle weight rating of 26,001 or more pounds.
K.S.A. 2020 Supp. 8-2,128(f). The gross vehicle weight rating of a combination
vehicle—like the trucks and fifth wheel RVs Ford operated—is the gross vehicle weight
rating of the power unit plus the gross vehicle weight rating of the towed unit. K.S.A.
2020 Supp. 8-2,128(p). The Act is to "be liberally construed to promote public health,
safety and welfare." K.S.A. 8-2,126(b).
Some vehicles are not included in the Act, including "motor vehicles, which
would otherwise be considered commercial motor vehicles, if such vehicles are used
2
solely and exclusively for private noncommercial use and any operator of such vehicles."
K.S.A. 2020 Supp. 8-2,127(d). The Federal Motor Carrier Safety Administration
(FMCSA), an agency of the United States Department of Transportation, also granted a
limited exemption to the CDL requirements for transport of newly manufactured RVs
from manufacturing site to dealer location. 49 U.S.C. § 113(a) (2018); Commercial
Driver's License Standards: Recreation Vehicle Industry Association Application for
Exemption, 80 Fed. Reg. 18493 (Apr. 6, 2015).
The driver of a commercial motor vehicle must have and possess a CDL. K.S.A.
2020 Supp. 8-2,132(a). Drivers of commercial motor vehicles are also subject to
numerous federal and state laws and regulations. Relevant to this appeal are regulations
on window tinting (49 C.F.R. § 393.60[d]), medical examiner certificates (49 C.F.R.
§ 391.41), breakaway and emergency braking (49 C.F.R. § 393.43), and fire
extinguishers (49 C.F.R. § 393.95[a]). See K.A.R. 82-4-3g (adopting 49 C.F.R. § 391 in
relevant part); K.A.R. 82-4-3i (adopting 49 C.F.R. § 393 in relevant part).
Many of the issues Ford raises on appeal involve questions of interpretation of the
previously mentioned statutes and regulations. These issues present questions of law over
which appellate courts have unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432
P.3d 1015 (2019). We will separately address the issues Ford raises on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In the district court, Ford stipulated that he did not have a CDL at relevant times in
this case. While in business at Central RV, Ford has obtained over 1,000 VIN inspections
for his used RVs. The VIN inspection station previously was located adjacent to Central
RV. When Ford requested a VIN inspection, an inspector would walk over to his lot and
conduct it. In late 2016, the station stopped conducting inspections. Consequently, Ford
began driving the RVs to Olathe, about 30 miles away, for VIN inspections.
3
Beginning in 2017, Ford testified that he had an ongoing disagreement with the
Kansas Highway Patrol (KHP), the agency that conducts VIN inspections. Ford described
an incident in February 2017 when he brought a title to Trooper David Albers at the
Olathe inspection station. Ford testified that he provided Trooper Albers with a clean
South Dakota title, but the trooper issued him a salvage title in return.
The next day, Ford said his business was "raided" by the KHP and the Kansas
Department of Revenue (KDOR). Ford testified that officials came into his office and
said, "[Y]ou'll do what I say or you get a $750 fine each time you don't." For his part,
Trooper Albers testified that it was not a raid. He explained that the KHP accompanied
the KDOR on an inspection at Ford's business to ensure that Central RV was complying
with dealer licensing. At trial, Ford's counsel argued that these incidents showed the KHP
was biased against Ford and targeted him for selective prosecution.
Ford brought a fifth wheel RV to the Olathe inspection station in February 2017.
Trooper Albers saw Ford and believed that the vehicle combination Ford was operating
that day made him subject to the commercial motor vehicle statutes. As a result, he
concluded that Ford needed a CDL to operate the vehicle. Trooper Albers directed two
troopers who specialize in CDL matters to inform Ford that he was subject to those rules
and warn him that he may be stopped and ticketed. The troopers also offered Ford
resources in order to comply with the CDL statutes.
A KHP trooper issued Ford an out-of-service order on March 6, 2017, for
operating a commercial motor vehicle without a CDL. The out-of-service order meant
that Ford could not operate that vehicle again until he obtained a CDL.
Trooper Joshua Weber observed Ford driving westbound on K-7 highway on
March 30, 2017. Ford was returning to Central RV after obtaining a VIN inspection for a
fifth wheel RV. Trooper Weber testified that the truck was a 5500 series Chevy ton-and-
4
a-half truck pulling a very large RV with a "not for hire" sign on the truck, and dealer
plates on the trailer. Trooper Weber stopped Ford to conduct an inspection because he
believed that Ford was operating a commercial motor vehicle.
Decals on the truck and trailer indicated gross vehicle weight ratings of 19,500
pounds for the truck and 14,000 pounds for the trailer. Accordingly, Trooper Weber
believed that Ford needed a CDL to operate the vehicle. During his inspection, the
trooper found several violations of FMCSA regulations including failure to possess a
medical examiner's certificate or a fire extinguisher. Ford's window tint tested at 16
percent light transmission, which was lower than the 70 percent light transmission
required. Additionally, the trailer's breakaway protection did not work. Finally, Trooper
Weber noted that Ford was driving in violation of the March 6, 2017 out-of-service order.
Although Ford told the trooper he did not believe that he needed a CDL, Trooper Weber
cited Ford for the CDL violation and out-of-service order violation.
Trooper Weber did not weigh the truck or trailer before issuing the ticket to Ford.
According to Ford, he weighed the vehicle and trailer after the traffic stop and they had a
combined weight of 23,350 pounds.
At trial, Trooper Weber explained why he thought Ford was driving a commercial
motor vehicle. In addition to the dealer plates and not for hire decal, the trooper also
observed that the VIN inspection paperwork for the RV was titled in the name of Ford's
business. As a result, Trooper Weber believed that Ford was furthering his business by
transporting the RV and, thus, engaging in commerce.
Ford continued driving RVs to the Olathe inspection station despite not obtaining
a CDL. Trooper Albers observed Ford arriving at one of these inspections with a very
large truck and RV combination on May 23, 2017. The trooper described the truck as
"just shy of being a semi." Trooper Albers looked up the gross weight vehicle rating of
5
the trailer and it was 18,000 pounds. He concluded that the gross vehicle weight rating of
the truck and trailer were over the 26,001-pound threshold in the CDL regulations.
Trooper Albers believed that Ford was operating a commercial vehicle because it was to
be titled in the name of Central RV which is a public seller of used RVs. The trooper
cited Ford for operating a commercial motor vehicle without a CDL. Although Trooper
Albers did not personally weigh Ford's truck or the fifth wheel RV, Ford claimed the
truck and trailer weighed 23,400 pounds or less.
The State charged Ford with six counts stemming from the March 30, 2017
incident: driving a commercial motor vehicle without a CDL; driving a commercial
motor vehicle in violation of an out-of-service order; operating a commercial motor
vehicle without having a medical examiner's certificate; operating a motor vehicle with
improper breakaway or emergency brakes; operating a commercial motor vehicle with
excessive window tint; and operating a commercial vehicle without a fire extinguisher.
For the May 23, 2017 incident, the State only charged Ford with operating a commercial
motor vehicle without a CDL.
Ford moved to dismiss the citations. He contended the actual weight of his truck
and trailer on both days he received citations was less than 26,001 pounds and, thus, he
was not required to have a CDL. He also argued that he was engaged in private
noncommercial use of the trucks and RVs when he took the RVs to the KHP for VIN
inspections. Ford later filed a second motion to dismiss. In that motion he challenged the
constitutionality of the CDL regulations in two ways—asserting they were void for
vagueness and denied equal protection of the laws to persons who towed used RVs. The
district court did not rule on these motions before the trial.
After considering the trial evidence, the district court ruled that Ford was required
to have a CDL because he was furthering his business by driving his fifth wheel trailers
6
to the VIN inspection station, and the new vehicle exemption did not apply. The court
ordered Ford to pay a fine of $700.
Ford appeals.
DID THE DISTRICT COURT ERR BY FAILING TO RULE ON FORD'S MOTIONS TO DISMISS?
Ford's first argument is that the district court erred by failing to rule on his motions
to dismiss. Prior to trial, Ford's counsel asked the district court whether it was going to
rule on the motions before evidence was presented or consider them with the case. The
court replied that it would consider all the issues at the end of trial. In its ruling, the court
did not explicitly address Ford's constitutional challenge.
Ford did not object to the district court's lack of findings on his motions to
dismiss. "In the absence of a request by a party to the district court for additional
findings," our court "generally assume[s] that the court made the findings necessary to
support its ruling." Douglas Landscape & Design v. Miles, 51 Kan. App. 2d 779, 787,
355 P.3d 700 (2015). Our court may consider a remand if the lack of specific findings
precludes meaningful appellate review. Gilkey v. State, 31 Kan. App. 2d 77, 78, 60 P.3d
351 (2003). As the State notes in its brief, however, the constitutional issues raised in
Ford's motions present questions of law. Our court employs unlimited review over
questions of law. State v. Mossman, 294 Kan. 901, 906, 281 P.3d 153 (2012).
Accordingly, the lack of findings by the district court does not prevent us from reviewing
the district court's denial of Ford's motions.
DID THE DISTRICT COURT ERR BY
CONSIDERING THE COMBINED WEIGHT OF FORD'S VEHICLES?
Ford contends that because K.S.A. 2020 Supp. 8-2,128(f) "clearly states 'vehicle'
not combination vehicle," the district court should not have considered the combined
7
weight of the truck and RV in deciding whether Ford had operated a commercial motor
vehicle. Since there was no evidence showing that his trucks or RVs, considered alone,
had a gross vehicle weight rating exceeding 26,001 pounds, Ford argues that his
convictions should be reversed.
This issue requires analysis of K.S.A. 2020 Supp. 8-2,128(f). The statute provides:
"(f) 'commercial motor vehicle' means a motor vehicle designed or used to
transport passengers or property, if:
(1) The vehicle has a gross vehicle weight rating of 26,001 or more pounds or
such lesser rating, as determined by rules and regulations adopted by the secretary, but
shall not be more restrictive than the federal regulation." K.S.A. 2020 Supp. 8-2,128(f).
Ford focuses on the fact that the definition uses the word "vehicle," a singular
noun. The problem with Ford's argument, however, is that it ignores the definition of
"gross vehicle weight rating." As statutorily defined:
"(p) 'gross vehicle weight rating' means the value specified by the manufacturer
as the maximum loaded weight of a single or a combination (articulated) vehicle. The
gross vehicle weight rating of a combination (articulated) vehicle (commonly referred to
as the 'gross combination weight rating') is the gross vehicle weight rating of the power
unit plus the gross vehicle weight rating of the towed unit or units." K.S.A. 2020 Supp. 8-
2,128(p).
In other words, the definition of "gross vehicle weight rating" includes
combination vehicles, and this definition is incorporated into the definition of
"commercial motor vehicle." This plain reading supports the district court's interpretation
of the statute.
8
The evidence presented at trial established that on both dates when Ford received
citations, he was operating a combination vehicle with a gross vehicle weight rating
exceeding 26,001 pounds. As a result, Ford was operating a commercial motor vehicle,
was required to have a CDL, and was required to follow commercial motor vehicle
regulations unless an exemption applied.
IS THE PRIVATE NONCOMMERCIAL USE EXCEPTION TO THE CDL UNCONSTITUTIONAL?
Not all vehicles are subject to the Act. Among vehicles which are not covered by
the Act are "motor vehicles, which would otherwise be considered commercial motor
vehicles, if such vehicles are used solely and exclusively for private noncommercial use
and any operator of such vehicles." K.S.A. 2020 Supp. 8-2,127(d). Ford contends the
phrase "private noncommercial use" is unconstitutionally vague, thus rendering the
statute void for vagueness. In this regard, Ford notes that the Act does not define "'private
noncommercial use.'" He asserts that "[w]hat is and is not a commercial purpose is
something that is widely debatable and has different meanings to different people."
A statute's constitutionality is a question of law subject to unlimited review.
Appellate courts presume statutes are constitutional and must resolve all doubts in favor
of a statute's validity. Courts must interpret a statute in a way that makes it constitutional
if there is any reasonable construction that would maintain the Legislature's apparent
intent. State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018).
"The test to determine whether a criminal statute is unconstitutionally void by
reason of being vague and indefinite is whether its language conveys a sufficiently
definite warning as to the conduct proscribed when measured by common understanding
and practice." State v. Kirby, 222 Kan. 1, Syl. ¶ 1, 563 P.2d 408 (1977). If a statute's
terms are "so vague that persons of common intelligence must necessarily guess at its
meaning and differ as to its application" it "is violative of due process." 222 Kan. 1, Syl.
9
¶ 1. "In determining whether a criminal statute is so vague that it violates due process,
appellate courts conduct a two-prong inquiry, asking: (1) whether the statute gives fair
warning to those potentially subject to it; and (2) whether it adequately guards against
arbitrary and unreasonable enforcement." Gonzalez, 307 Kan. at 580.
We are persuaded that the phrase "private noncommercial use" is not vague and
gives fair warning to those potentially subject to the statute. A person of ordinary
intelligence can distinguish between a commercial and noncommercial use of a vehicle
by discerning the reason the vehicle is being driven. If the vehicle is being operated for
personal reasons, unrelated to any public or commercial venture, then the vehicle fits the
definition. Black's Law Dictionary defines "noncommercial use" as "[a] use for private
pleasure or business purposes that does not involve the generation of income or
bestowing a reward or other compensation." Black's Law Dictionary 1854 (11th ed.
2019). The dictionary defines "commercial," in part, as "1. Of, relating to, or involving
the buying and selling of goods; mercantile. 2. Resulting or accruing from commerce or
exchange. 3. Employed in trade; engaged in commerce. . . . 5. Of, relating to, or
involving the ability of a product or business to make a profit." Black's Law Dictionary
336 (11th ed. 2019). These commonly used definitions make plain the meaning of the
phrase "private noncommercial use." For these reasons, the statute provides fair warning.
Additionally, there is no indication that the terminology of private noncommercial
use is susceptible to arbitrary and unreasonable enforcement. The inquiry in determining
whether the statute applies is simply to consider whether the driver has a commercial or
noncommercial purpose. In this case, officers considered factors such as the dealer tags
on Ford's vehicles, the fact that Ford titled the RVs in the name of his business, and the
fact that Ford was obtaining VIN inspections in order to sell the RVs. That the troopers in
this case considered these factors to be important in their enforcement determination
supports the conclusion that K.S.A. 2020 Supp. 8-2,127(d) is not subject to arbitrary or
10
unreasonable enforcement. All things considered the private noncommercial use language
is not unconstitutionally vague.
Ford makes a second argument on this point, highlighting K.S.A. 2020 Supp. 8-
136. This statute governs dealer license plates for vehicle dealers and manufacturers.
K.S.A. 2020 Supp. 8-136(a). Subsection (d) of the statute provides: "A trailer
manufacturer or dealer is authorized to use a license plate issued under this section for the
transportation of not more than four trailers. Such manufacturer or dealer shall be in
compliance with the provisions of article 19 of chapter 8 of the Kansas Statutes
Annotated, and amendments thereto." K.S.A. 2020 Supp. 8-136(d). K.S.A. 8-1901 et seq.
covers traffic, size, weight, and load of vehicles but it does not contain any references to
CDLs or commercial motor vehicles. Ford argues that K.S.A. 2020 Supp. 8-136 only
subjects dealers to the rules in the explicitly mentioned statutes—K.S.A. 8-1901 et seq.
Because K.S.A. 2020 Supp. 8-136 does not state that dealers must have a CDL, he
reasons, a person of ordinary intelligence would believe that a dealer transporting less
than four trailers is not required to obey the CDL regulations. We disagree.
Simply because a statute does not specifically state that a person is subject to CDL
rules does not mean that a person is exempt from those rules. Such an interpretation is
unreasonable. For example, K.S.A. 2020 Supp. 8-136 does not state that dealers are
subject to laws prohibiting driving under the influence, but there is no doubt those laws
still apply to dealers operating trailers. Ford's argument is unpersuasive.
DID THE DISTRICT COURT MISINTERPRET
THE PRIVATE NONCOMMERCIAL USE EXCEPTION?
Ford challenges the district court's interpretation of K.S.A. 2020 Supp. 8-2,127(d),
the private noncommercial use exception to the CDL rules. The parties agree on the facts:
When Ford received the citations, he was driving his RVs for the purpose of obtaining a
VIN inspection so he could subsequently sell the RVs at his business. But the parties
11
disagree on the interpretation of K.S.A. 2020 Supp. 8-2,127(d) and whether Ford's
activity falls under the private noncommercial use exception. Ford argues that he is in the
business of buying, selling, and repairing RVs, and when he received his citations he was
not engaged in any of those activities. The State counters that driving an RV to obtain a
VIN inspection so the RV can be sold is engaging in the commercial use of that vehicle.
As explained above, if a person is operating a vehicle for commercial purposes
that person does not fall under the private noncommercial use exception. Ford
demonstrated a commercial purpose in operating his vehicles when he received his
citations—obtaining VIN inspections in order to sell his RVs. There was no evidence
indicating that Ford had a private or noncommercial reason for driving the vehicles.
Moreover, if transporting RVs in the course of business was not covered by the CDL
regulations, there would be no need for the new RV exemption discussed later in this
opinion.
We find Ford's narrow reading of K.S.A. 2020 Supp. 8-2,127(d) is inconsistent
with the Act's mandate to liberally construe its provisions. K.S.A. 8-2,126(b). The district
court did not err by concluding that the private noncommercial use exception to the CDL
rules did not apply to Ford.
DOES THE "NEW RV" EXEMPTION TO THE CDL RULES APPLY TO FORD?
On appeal, Ford also asserts that he is covered by the FMCSA's "new RV"
exemption. The district court ruled this exemption did not apply to Ford.
Some background of the new RV exemption is in order. The FMCSA is authorized
to grant exemptions from the federal CDL rules. 49 U.S.C. § 31136(e) (2018). A person
may apply for an exemption if a federal motor carrier safety regulation prevents the
person "from implementing more efficient or effective operations" and granting the
12
exemption "would maintain a level of safety equivalent to, or greater than, the level
achieved without the exemption." 49 C.F.R. § 381.305(a). A person must file a written
request that, among other things, addresses the safety impacts the exemption may have.
49 C.F.R. § 381.310(c)(4). The FMCSA then publishes a notice in the Federal Register
asking for public comment on the application, and ultimately issues a decision. 49 C.F.R.
§ 381.315.
In 2015, the FMCSA granted a limited exemption to the CDL requirements for
transport of newly manufactured RVs. 80 Fed. Reg. 18493. The FMCSA renewed the
exemption in 2017. See 83 Fed. Reg. 7291 (Feb. 20, 2018). The Recreation Vehicle
Industry Association (RVIA), a national trade association representing RV manufacturers
and their component parts suppliers, filed the request. In its application, RVIA explained
that the CDL requirement for vehicles weighing 26,001 pounds or more was preventing
its members from implementing more efficient or effective operations due to a shortage
of CDL drivers. 80 Fed. Reg. at 18493. The shortage created costly and inconvenient
delays for the RV industry and for consumers. 80 Fed. Reg. at 18493-94. RVIA asked
that a CDL not be required for vehicles with an actual weight of less than 26,001 pounds
even if the gross vehicle weight rating exceeded 26,001 pounds. The exemption was to
apply to newly manufactured RVs transported from the factory in which they were
manufactured, or from a holding area, to a dealership site. 80 Fed. Reg. at 18493-94.
RVIA provided several reasons why it believed the exemption would result in a
level of safety that was equivalent to or greater than the safety obtained by complying
with the CDL requirements. These included:
• Drivers employed by RV manufacturers and dealers have more experience
than a typical driver operating for recreational purposes;
• RV manufacturers and dealers have economic incentive to train and
monitor their drivers because of exposure to liability for traffic accidents;
13
• RV accidents are infrequent;
• Newly manufactured RVs are less likely to present a safety concern due to
mechanical failures; and
• Travel distances between the manufacturing sites and dealer locations are
typically shorter than the usual distances traveled when RVs are in
recreational use.
80 Fed. Reg. at 18494.
RVIA also pointed out that individuals who purchase RVs for recreational use are
not required to have CDLs, and that obligating RV manufacturers and dealers to obtain a
CDL would be anomalous. 80 Fed. Reg. at 18494.
FMCSA granted the request, finding RVIA's arguments persuasive. 80 Fed. Reg.
at 18494-95. It limited the exemption to "employees of driveaway-towaway companies,
RV manufacturers, and RV dealers transporting RVs between the manufacturing site and
dealer location and for movements prior to first retail sale." 80 Fed. Reg. at 18495.
Ford argues that the exemption allows him to drive an RV without a CDL "prior to
its first retail sale with Central RV." But the exemption is not so expansive. RVIA's
request only covered newly manufactured RVs, not used RVs. One of the points in
support of RVIA's argument was that newly manufactured RVs are less likely to present
a safety concern due to mechanical failures. The rule states that it applies prior to the first
retail sale of an RV. Additionally, it only applies to transport between a manufacturing
site and dealer location. This clearly excludes used RVs being transported for VIN
inspections. Accordingly, the district court did not err by ruling that the exemption did
not apply to Ford.
14
IS THE "NEW RV" EXEMPTION TO THE CDL RULES UNCONSTITUTIONAL?
In an alternative argument, Ford contends the new RV exemption violates his
equal protection rights. First, he asserts the exemption treats new RV sellers differently
than used RV sellers, and that these groups are similarly situated. Second, he argues there
is no rational basis for treating these groups differently, resulting in a violation of his
equal protection rights. Our court employs unlimited review over constitutional
questions. Gonzalez, 307 Kan. at 579.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "[n]o state shall . . . deny to any person within its jurisdiction
the equal protection of the laws." An appellate court uses a three-step process when
reviewing an equal protection claim:
"First, it considers whether the legislation creates a classification resulting in different
treatment of similarly situated individuals. If the statute treats "'arguably
indistinguishable'" individuals differently, the court determines next the appropriate level
of scrutiny to assess the classification by examining its nature or the right at issue. Then,
the court applies that level of scrutiny to the statute. [Citations omitted.]" State v.
LaPointe, 309 Kan. 299, 316, 434 P.3d 850 (2019).
The Equal Protection Clause is only implicated if a law treats similarly situated
individuals differently. State v. Salas, 289 Kan. 245, 248, 210 P.3d 635 (2009). The
burden is on the complaining party to show that he or she is similarly situated to others
who are being treated differently. "Because the complaining party has this burden and
also because a court presumes a statute is constitutional, the parameters of a court's
consideration of whether individuals are similarly situated is set by the distinctions
argued by the complaining party." 289 Kan. at 249.
15
Ford and the State agree that used RV sellers and new RV sellers are similarly
situated. But these broad classifications are misguided because they are not the
distinctions made by the exemption. Rather, the class of persons covered by the
exemption is "employees of driveaway-towaway companies, RV manufacturers, and RV
dealers transporting RVs between the manufacturing site and dealer location and for
movements prior to first retail sale." 80 Fed. Reg. at 18495. Ford's class, on the other
hand, is persons who transport used RVs at any time for commercial purposes. As
clarified, the class covered by the exemption is much narrower than the class to which
Ford compares it, and the two classes are not engaging in the same activity. These
distinguishing facts demonstrate that the classes are not similarly situated. Another reason
the two classes are not similarly situated is that new RV dealers (represented by RVIA)
filed a request for exemption with the FMCSA. In this request, RVIA provided evidence
that the exemption "would maintain a level of safety equivalent to, or greater than, the
level achieved without the exemption." 49 C.F.R. § 381.305(a). There is no evidence that
Ford has filed such a request, which further differentiates his situation from the new RV
sellers.
Moreover, assuming that the two classes at issue were used RV sellers and new
RV sellers, and these classes are similarly situated, the classes would be treated
identically under the facts of this case. New RV sellers are not exempt from CDL
requirements when they drive RVs to VIN inspection stations. The new RV sellers are
only exempt from the CDL regulations when transporting newly manufactured RVs from
a manufacturing site to a dealer location before their first retail sale.
For all these reasons, the classes proposed by Ford are not similarly situated. Even
if they were, new RV dealers would be treated no differently than Ford if they engaged in
the same activities.
16
For the sake of argument, assuming that the classes are similarly situated, Ford
must establish that the exemption does not pass the appropriate level of scrutiny. There
are three levels of scrutiny: strict scrutiny, intermediate scrutiny, and the rational basis
test. The level of scrutiny applied "depends on the nature of the legislative classification
and the rights affected by that classification. The general rule is that a law will be subject
to the rational basis test unless the legislative classification targets a suspect class or
burdens a fundamental right. [Citations omitted.]" State v. Limon, 280 Kan. 275, 283-84,
122 P.3d 22 (2005). Here, the exemption does not target a suspect class or burden a
fundamental right, so rational basis review is applicable.
In order to pass a rational basis review the exemption must implicate legitimate
goals and the means chosen by the legislature must bear a rational relationship to those
goals. 280 Kan. at 288. The State has no burden to produce evidence on the rationality of
the exemption because "'a legislative choice is not subject to courtroom factfinding and
may be based on rational speculation unsupported by evidence or empirical data.'
[Citation omitted.]" Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L. Ed. 2d 257(1993). Instead, "'[t]he burden is on the one attacking the legislative arrangement to
negative every conceivable basis which might support it.' [Citation omitted.]" 509 U.S. at
320. Ford has not met this burden.
In our view, the FMCSA had a rational basis for granting the new RV exemption
to the CDL requirements. Primarily, RVIA satisfied the requirements of the request
process. RVIA submitted a written application detailing why it needed the exemption,
analyzing whether granting the exemption would negatively impact safety, and providing
evidence in support. RVIA also noted that newly manufactured RVs are less likely to
present a safety concern due to mechanical failures. On the other hand, Ford has not
taken any of these steps, so it is rational that the FMCSA did not include used RV sellers
like him in the exemption. In short, the FMCSA had a rational basis for limiting the
exemption to the parameters of the request because those are the parameters upon which
17
evidence was presented. Accordingly, we hold the exemption does not violate Ford's
equal protection rights.
Affirmed.
18