                                          No.     85-513

               I N THE SUPREME COURT O F THE STATE O MONTANA
                                                    F

                                                1986




STATE O MONTANA, e x r e l . , DEPARTMENT
       F
O HEALTH AND ENVIR.ONMENTAL SCIENCES,
 F

                 P l a i n t i f f and Respondent,



CECIL L .   BERNHARD,

                 Defendant and A p p e l l a n t .




APPEAL FROM:     D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
                 I n and. f o r t h e County o f L i n c o l n . ,
                 The H o n o r a b l e R o b e r t H o l t e r , J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:

                 J e f f r e y I,. Shrom, M i s s o u l a , Montana


         For Respondent:

                 W i l l i a m D o u g l a s , L i n c o l n County A t t o r n e y , L i b b y ,
                 Montana
                 S u s a n Loehn, Deputy County A t t o r n e y , L i b b y , Montana




                                                S u b m i t t e d on B r i e f s : J a n .   2 3 , 1986

                                                   Decided:          February 20,            1986



Filed:




                                                Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
       Cecil Bernhard appeals the August 16, 1985, order of the
Nineteenth Judicial District Court, County of Lincoln, which
assessed a $50 per day civil penalty against him for failing
to properly shield his motor vehicle wrecking facility from
public view.    The order also stated that if the penalty was
not paid by the 13th of September, 1985, the Department of
Environmental Health and Sciences (DHES) would be permitted
to contract for the destruction of the vehicles.            Defendant
Bernhard appeals.       We affirm the order of the District Court.
       Cecil Eernhard stores between 60 and 100 junk vehicles
on his property near Eureka, Montana.        In November of 1975, a
complaint was filed against Rernhard for operating a motor
vehicle wrecking facility without a license, a misdemeanor.
He was ultimately fined $300 and sentenced to serve 30 days
in jail unless he obtained a license within 30 days of the
date   of   judgment.      On   appeal,   this Court    affirmed   the
conviction.
       Bernhard was next civilly charged July 2, 1979, with
operating a motor vehicle wrecking facility without a li-
cense, pursuant to S 75-10-511 (1), MCA.       An order was issued
by   the Lincoln County District Court, enjoining defendant
from operating the facility without a license and ordering
him to shield the vehicles from public view.           The order also
provided for the imposition of a $50 a day fine for each day
Bernhard refused to comply.          On appeal, this Court again
affirmed the District Court.
       As a result of that action, Bernhard placed a fence
around most of the vehicles and obtained a license to operate
the facility.    The fence was installed during the winter of
1984-85.    The frozen ground made it impossible to drive fence
posts into the ground.         Cattle belonging to a neighbor, but
grazing on Bernhard's land, apparently knocked the fence down
in the spring of 1985.         The owner of the cattle rebuilt the
fence.     However, a strong wind storm again knocked down the
fence.
     Upon being notified of the problem, Lincoln County's
Sanitarian viewed Bernhard's property and sent him a letter
May 13, 1985, requesting a compliance timetable.           The fence
was not improved and on July 2, 1985, the County Attorney
filed a petition and motion to show cause why the civil
penalty of $50 per each day of violation should not be im-
posed.     A hearing was set for August 12, 1985.          Defendant
appeared, but without an attorney.          After extensive question-
ing by the trial judge regarding defendant's right to coun-
sel, the hearing proceeded with defendant acting             pro -
                                                                 se.
     Following the hearing, the trial judge issued findings
of fact, conclusions of law and the order assessing defendant
$50 a day from June 25, 1985, to August 12, 1.985, and further

assessing defendant $50 a d a y thereafter until full compli-
ance with the order to shield the vehicles.         Rernhard filed a
motion September 13, 1985, for a temporary restraining order
forbidding the DHES from contracting for the destruction of
the vehicles; however, he failed to request that a hearing be
set on the motion.       The present status of the vehicles is
unknown.

     Rernhard, now represented by counsel, appeals, raising
the following issues:
     1.    Whether the defendant was in compliance with the
court's order as a matter of law and whether the District
Court erred in its judgment of noncompliance?

     2.    Once a motor vehicle wrecking facility license is
issued, does     the   court    have   to   follow a procedure   for
issuing, denying or revoking the license before imposing a
$50 a day civil penalty for failure to shield?
     3.    Was    the defendant. entitled        to be represented by
counsel at the show-cause hea.ring?
     4.     Did   defendant willingly      and    knowingly waive         his
right to counsel at the show-cause hearing?
     5.    Was the defendant incompetent to represent himself
at the show-cause hearing?


     Hernhard argues that he erected a fence to shield the
facility pursuant to S 75-10-504, MCA, and a November 1984

order of the District Court.            The fence was destroyed by
cattle and a wind storm, forces over which Bernhard had no
control.    Therefore, pursuant to        1-3-217, MCA, he cannot be
held responsible for the destruction of his fence.                      What
Rernhard    fails to mention      is that he       is responsible for

installing a        fence which   adequately shields the wrecking
facility and        for repairing or     replacing that           fence when
necessary.        There is substantial credible evidence in the
record to support the trial judge's finding that Bernhard was
not in compliance with the court's earlier order to shield
the wrecking facility.


     The trial judge did not have to revoke Bernhard's li-
cense prior to imposing the $50 a day civil pena.lty.
          Section     75-10-542(2),     MCA,     provides:
       A person who violates this part, except
       75-10-520, a rule of the department, or
       an order issued as provided in this part
       shall be subject to a civil penalty of
       not more than $50. Each day upon which a
       violation of this part or a rule or order
       occurs is a separate violation.

     Section 75-10-504, MCA, provides that a motor vehicle
wrecking     facility    "established    or    proposed      on    or   after
J u l y 1, 1 9 7 3 , " must b e s h i e l d e d from p u b l i c view.                 By f a i l i n g

to    shiel-d       h.is     facility,          Bernhard       violated         that      statute.

Bernhard a l s o v i o l a t e d a c o u r t o r d e r i s s u e d p u r s u a n t t o T i t l e

75, P a r t 10.        T h e r e f o r e , p u r s u a n t t o 5 75-10-542(2),            MCA,    the

$50 a d a y p e n a l t y was p r o p e r l y imposed.



        The    remaininq           three     issues      concern      Bernhard's           lack    of

r e p r e s e n t a t i o n by c o u n s e l a t t h e show-cause h e a r i n g .

        S e c t i o n 37-61-416,         MCA,    s t a t e s i n applicable part:

           P a r t y may a p p e a r i n p e r s o n o r by a t t o r -
           ney.       A p a r t y t o a c i v i l a c t i o n who i s o f
           f u l l a g e may p r o s e c u t e o r d e f e n d t h e same
           i n p e r s o n o r by a t t o r n e y a t h i s e l e c t i o n
           u n l e s s he h a s been j u d i c i a l l y d e c l a r e d t o
           b e i n c o m p e t e n t t o manage h i s a f f a i r s .

        B e r n h a r d was      e n t i t l e d t o b e r e p r e s e n t e d by c o u n s e l a t

t h e show-cause h e a . r i n g .         However, a f t e r e x t e n s i v e q u e s t i o n i n g

by t h e t r i a l j u d g e w i t h r e s p e c t t o w h e t h e r B e r n h a r d w i s h e d t o

have c o u n s e l p r e s e n t , t h e t r i a l j u d g e d e c i d e d t o p r o c e e d w i t h

t h e hearing.         W f i n d no e r r o r .
                        e                                B e r n h a r d was t o l d h e had a

r i g h t t o counsel.             H e w a s warned o f t h e p o t e n t i a l i m p a c t o f

t h e show-cause           h e a r i n g on h i s f i n a n c i a l well-being.              Never-

theless,       Bernhard          s t a t e d t h a t h e would b e w i l l i n g t o t e l l

"his side of t h e story" t o the court.                            Therefore, defendant

elected       not    to     be     represented         by    counsel       at    the     hearing.

        F i n a l l y , B e r n h a r d p r e s e n t s no e v i d e n c e t h a t h e h a s b e e n

judicially        d e c l a r e d incompetent.              Further,      h e ha.s known f o r

at   l e a s t eleven years             t h a t h e must       l i c e n s e and s h i e l d h i s

wrecking       facility.             Therefore,        he    knew     and understood              the

c h a r g e s a g a i n s t him.      H i s t e s t i m o n y a t t h e h e a r i n g was compe-

tent.       H e was c o m p e t e n t t o r e p r e s e n t h i m s e l f a t t h e h e a r i n g .

        Affirmed.
We concur:   , -
              4
