                                            NO.     83-203

                  I N THE SUPREfilE COURT O F THE STATE OF PlOPJTANA

                                                    1983




STATE O F MONTANA, ex r e l . ,
DEPARTMENT OF HEALTIS AND ENVIRO?JEIENTAL
SCIENCES,

                               P l a i n t i f f and R e s p o n d e n t ,

           -vs-

CECIL L.    BERPJEIARD,

                               D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:       D i s t r i c t C o u r t of t h e N i n e t e e n t h 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 C o u n t y of L i n c o l n ,
                   The H o n o r a b l e R o b e r t M. H o l t e r , Judge p r e s i d i n g .


COUNSEL OF RECORD:

         For Appellant:

                   J e f f r e y Shron, M i s s o u l a , Montana


         F o r Respondent:

                   W i l l i a m A.   Douglas,       County Attorney, Libby,
                   Montana


                                                                                   .          ----A




                                              S u b m i t t e d on B r i e f s :       August 4,      1983

                                                                   Decided:            January 2 6 , 1984


           JU!V ; .: 1;jgq
                !
Filed:
Mr. Justice Daniel J.            Shea delivered the Opinion of the
Court.

       Cecil      Bernhard
                IJ.              appeals an order of Lincoln County
District Court enjoining him from operating a motor vehicl-e
wrecking     faci-lity without a license and                ordering him     to
shield the junk vehicles from public 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 Department of 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-e wrecking facility.              He cl-aims testimony 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 a motor vehicle wrecking facility without a license
in vj.olation of 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.nd battered
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 of beina driven."
       A nonjury trial was held November 3.2,              1982, at which
both the State and Bernhard presented witnesses ' testimony.
The State presented the county sanitarian, who testified that
Rernhard possessed          four or more junk vehicles.          Anderson
testified that the vehicles are visible from two highways 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 knew that Bernhard 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 reassemble and repair cars and trucks
he owned.      The trial. judge also found! that Rernhard did not
rebut the presumption and ruled that Rernhard was operatinu a
wrecking facility without a license.              The trial court gave
Bernhard the option to shield. the vehicles or allow the
Department of Health 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 the vehicles or dispose of them,
section 75-10-542 (2), MCA.            Execution was stayed pending
appeal to this Court.
     The trial court's findings are supported by substantial
evidence,    and    the    presumption    of       operating       a   wrecking
facility is permissible in this civil context.                 Bernhard was
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
noncompliance with 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 civil penalties.
    Assuming his possession of junk cars is tanta-mount to
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.,
requires him to shield one to three junk vehicles.
    The trial court's decision is affirmed.
W concur:
 e




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