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Pondering Commercial vs Non-Commercial


Kevin H

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Phil,

 

You do know that pipeliners got a USDOT exemption a couple years ago, so Glenn is cool.

 

I am kinda confused about this "gray area" of selling stuff from an RV? It was my impression that ANY commercial use of a personal HDT is forbidden. The week end racer or flea market seller are both commercial, how is a full time RV dweller any different just because they live in the rig. A guy that makes birdhouses to sell for profit is in business to sell birdhouses. If he uses a half ton pick up to transport his goods then no CMV rules but, even if he lives in the RV HDT isn't transporting them commercial ?

 

I know there have been several folks on this forum how offer goods and services at rally's and events. They all have been doing this for years in "personal RV's", it kinda rubs me the wrong way. I have to have a USDOT number to use my trucks for my business yet, a bunch of retired or semi-retired folks hawk their wares unimpeded in their "RV's"

 

Isn't that is the perfect example of a double standard? I don't begrudge folks for making a little or a lot of spending money selling trinkets. I do get irked that for a handful of times a year that I use my trucks, I have to comply with all the same crap Swift or JB Hunt do. The old adage "in for a penny in for a pound" does it really make a difference that a widget is a birdhouse or 60HP blender?

 

Steve

Steve-

 

I too have been annoyed and worse by that double standard. My little dually and 14' (or 40') plain white trailer had a USDOT number, stops at the scales, and follows all the rules. But I have a number of friends who go to the same hot rod shows, carrying and selling WAY more merchandise than I do, but drive HDT toterhomes with 40-48' stacker trailers fully lettered with company logos, registered as RV's and follow NONE of the rules, bypass ALL the scales, and get away with it. You are correct, it does not matter the nature or quantity of widget, whether you are doing it as a full time business, or just selling a few at the rally, it IS COMMERCIAL!! The only discussion is how likely you are to get caught at it.

 

To be completely honest, I have sold the dually and replaced it with a much bigger 6500 TopKick with a drom box that looks like a sleeper. Sold the commercial looking race car trailer and replaced it with a fifth wheel toy hauler that carries just as much product. Got out of the trucking business on paper and got rid of my USDOT number and paper work. Now I drive by the scales in my non-commercial looking rig with a high confidence that no LEO will ever give my rig a second look, and sleep way better saving a ton of money and countless hours of useless paperwork. The rig is the same length, hauls the same products, but looks like a camper, and I am just as safe to myself and the general public as when I had all the proper paperwork and fees in place. So yeah, I'm back to skating. The government basically made it a choice of do that, or give up the business entirely, not worth the time and paperwork otherwise.

 

Been there, done that, all personal experience.

 

Dave in Ohio.

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LOL So I guess because you got caught you are now an expert? Maybe if you had done a bit more research before you got caught you would have been aware of what you were doing, like buying the trailer in a company name...that is a business and not personal as you discovered. There are exemptions for the birdhouse builder and the small car and horse racers in the federal regs, but nevermind. You got caught and now you have all the answers.... or are just angry because you messed up. Oh well....Thanks for the chuckle.

MY PEOPLE SKILLS ARE JUST FINE.
~It's my tolerance to idiots that needs work.~

2005 Volvo 780 VED12 465hp / Freedomline transmission
singled mid position / Bed by Larry Herrin
2018 customed Mobile Suites 40KSSB3 

2014 smart Fortwo

 

 
 
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I've been roaming around the greater Houston area for almost 5 weeks now.... and I have seen more illegal crap rolling around that I have to admit to and admire Phil for the chaos they try to monitor. I've driven all the interstates here from east to west, north to south, ran the toll roads and US and county roads from one side of Harris county to the other, and Phil is being very nice in his definitions of what he see's every day. Landscape companies running MDT's and HDT's with kids driving, transport companies carrying loads with magnetic signs that blow off going down the highway, truck drivers from countries from below the US border that are driving bailing wire and duct tape held together trucks with bondo on their windshields.....

If you get caught in Harris county... you really stood out....

Alie & Jim + 8 paws

2017 DRV Memphis 

BART- 1998 Volvo 610

Lil'ole 6cyl Cummins

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OK Phil,

 

I just read part 390.3(f)(3) question 21, and I am still not getting the vendor part. The interpretation relates to event participation, no mention of selling?

 

Steve

2005 Peterbilt 387-112 Baby Cat 9 speed U-shift

1996/2016 remod Teton Royal Atlanta

1996 Kentucky 48 single drop stacker garage project

 catdiesellogo.jpg.e96e571c41096ef39b447f78b9c2027c.jpg Pulls like a train, sounds like a plane....faster than a Cheetah sniffin cocaine.   

 

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Yep, I got caught. I'm not an expert because I got caught, but I certainly spent many months/years doing paperwork, asking questions, and jumping through a bunch of expensive and time consuming state and federal hoops. That may not make me an expert, but I have way more real info than the average rv'er with their head in the sand. I will never agree there is a difference between a set of wheels for a hot rod in my case, or a bird house in a different case. Selling something to make money is the same no matter what the thing is or how many are in the trailer. I'm relating my personal experiences because everybody else can get caught regardless of whether they think their personal little niche is commercial or not, same as I did. The discussion really boils down to camouflage. Everybody seems to think if the trailer has a bunch of windows and brown stripes instead of square and plain white they can never be considered commercial because it is an rv. That is not my personal experience. My old trailer was every bit as legally an rv as the rest of you, but I still needed a USDOT number to drive it. My current rig has bunch of windows and brown stripes and no USDOT number, and I've never been happier driving past the scales without a second glance, and take my chances. Way cheaper in the long run. Luckily, having admitted all that here in Phil's presence, my travels don't take me to Texas any more, so I won't be needing any cases of Dr. Pepper for bail. lol.

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OK Phil,

 

I just read part 390.3(f)(3) question 21, and I am still not getting the vendor part. The interpretation relates to event participation, no mention of selling?

 

Steve

Question 21: Does the exemption in §390.3(f)(3) for the "occasional transportation of personal property by individuals not for compensation nor in the furtherance of a commercial enterprise" apply to persons who occasionally use CMVs to transport cars, boats, horses, etc., to races, tournaments, shows or similar events, even if prize money is offered at these events?

 

Steve, really? You want to define "etc" , "shows and similar events" and "money" for me?

Maybe we are just a bit more liberal than what you are used to? I'm sorry that you can not see the difference in your "business" and "several folks on this forum how (sp) offer goods and services at rally's and events." I guess you are just mad because I would allow "a bunch of retired or semi-retired folks (to) hawk their wares unimpeded in their "RV's"?

In my opinion, their RV's are being used to pull their houses, not their race cars. OU812's flying lures and a dozen birdhouses will fit in the smart car. Hot Rod's race car will not. Open your eyes and look at the primary use of the HDT. Is it to make money like "Swift and JB Hunt" or is it to pull your house....not your weekend motel room at the track or your company owned empty trailer but your house.

I can't make you see what you don't want to see. So I tell you what, don't sell a damn thing and you will be ok. I personally don't give a shit. You know, I'm tired of arguing with people here. Hot Rod got a ticket and knows it all now...ask him, he's the expert.

MY PEOPLE SKILLS ARE JUST FINE.
~It's my tolerance to idiots that needs work.~

2005 Volvo 780 VED12 465hp / Freedomline transmission
singled mid position / Bed by Larry Herrin
2018 customed Mobile Suites 40KSSB3 

2014 smart Fortwo

 

 
 
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Ok folks.....Break.....Break.....back in your corners, spit in the bucket, wipe the sweat and blood off your faces with a cool wet towel and chug at least two liters of ice cold DrPepper.....

 

Chances the sun will rise in the morning and......the "is it a RV battle will start anew...."

 

Sorta like the Energizer Bunny.......this just keeps on going, and going, and, and',,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,',,,,,,

 

Drive on.......(geez I got DOT '$ in my eyes....)

97 Freightshaker Century Cummins M11-370 / 1350 /10 spd / 3:08 /tandem/ 20ft Garage/ 30 ft Curtis Dune toybox with a removable horse-haul-module to transport Dolly-The-Painthorse to horse camps and trail heads all over the Western U S

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Phil,

 

The question was not posed to anger you or cause a fracas, the answer just did not include in words anything about that. I am not what you would consider conservative or narrow minded, the reply I posted was, why and how you as an LEO specifically DOT enforcement would view a roadside stop. Your views on this are yours, would other DOT guys think the same thing?

 

I don't have any axe to grind, I actually find it informative. I have thought about doing something like that but, was worried about the commercial aspects. It is hard to convey context in some of these discussions, my own posts use verbiage that perhaps exaggerated a point. I am glad to hear that I was in error on the occasional sales exception.

 

Steve

2005 Peterbilt 387-112 Baby Cat 9 speed U-shift

1996/2016 remod Teton Royal Atlanta

1996 Kentucky 48 single drop stacker garage project

 catdiesellogo.jpg.e96e571c41096ef39b447f78b9c2027c.jpg Pulls like a train, sounds like a plane....faster than a Cheetah sniffin cocaine.   

 

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Phil, some of us DO actually have real and relevant knowledge of this topic. I greatly appreciate Steve's input and wish that you would stop trying to belittle and diminish the value of other people's contributions on this topic. Your position is also appreciated, but it is not the end-all be-all position on this topic. You are on the enforcement side, not the litigation side. And you are just one of a great number of officers on the enforcement side that people may encounter.


Your assumption that your positions are the absolute correct ones could really get someone into trouble if they encounter a situation that is not being handled by you.


As you know, law enforcement officers make interpretations of the law and then act on those interpretations. No matter how rigid or nationalized the training, they still make personal decisions in the field. You've admitted as much yourself that you don't always enforce the letter of the law. Unfortunately, our laws are so numerous and complex that it would be impossible for any law enforcement officer to enforce all of the laws strictly to the letter of the law. Your position on this topic is well known, but it is not going to be the same position that every other state/local DOT officer takes, let alone federal DOT officers. It's unreasonable to assume that a large number of individuals will think and act identically, regardless of training, "common" knowledge, etc.


Which is why knowing the actual law and how it stands up to litigation is just as important as knowing the different ways in which law enforcement officers will view the situation. That's why so many people on here have posted their experiences, suggestions on what paperwork to carry, etc. So that readers are aware of the dynamics involved and the fact that not everyone will see the situation the same way. To prepare people for the variables. When you state the position on the matter you are declaring yourself one of those variables that owners and operators of this kind of equipment must contend with. But you are not the only variable as most of us operate in more locales than just your jurisdiction.


What we are doing at this point is not discussing how a law enforcement officer might see things, such as yourself. We are discussing the law and how it would be interpreted on the litigation side AFTER a law enforcement officer has acted on their view of the situation. Knowing where the solid ground is in court will help people make more informed decisions prior to ever encountering a law enforcement officer.
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To answer the original question that started this thread:


To fall under the Federal Motor Carrier Safety Regulations (aka Part 390) you must, in general, meet two qualifications:


1) A weight standard

2) A use standard


If you don't meet both of those, the vehicle is not subject to 390. I think that you were seeing the discrepancy because you forgot to apply both the weight and use standard when considering your examples.



Anyway, back onto the tangent :)



Steve makes the most salient points here:


1) Not all DOT officers will take the stance that Phil does.

2) If you receive compensation for services or products that are transported or facilitated by a vehicle meeting the weight standards of a commercial motor vehicle, you run the risk of running afoul of the law and/or DOT officers.

3) If you don't look like you do business, you are much more likely not to get hassled, regardless of whether or not you're in compliance with the law.


Just so that everyone is on the same page, Part 390 of the federal code is the "Federal Motor Carrier Safety Regulations", and is also often referred to as FMCSR or similar abbreviations.


For those who are interested, 390.3.f.3 states one of the exemptions as:


The occasional transportation of personal property by individuals not for compensation nor in the furtherance of a commercial enterprise;


The full text of the federal DOT's example question and position on that law state:


Question 21: Does the exemption in §390.3(f)(3) for the "occasional transportation of personal property by individuals not for compensation nor in the furtherance of a commercial enterprise" apply to persons who occasionally use CMVs to transport cars, boats, horses, etc., to races, tournaments, shows or similar events, even if prize money is offered at these events?


Guidance: The exemption would apply to this kind of transportation, provided: (1) The underlying activities are not undertaken for profit, i.e., (a) prize money is declared as ordinary income for tax purposes, and (b ) the cost of the underlying activities is not deducted as a business expense for tax purposes; and, where relevant; (2) corporate sponsorship is not involved. Drivers must confer with their State of licensure to determine the licensing provisions to which they are subject.


You can take this guidance as a statement of how the law would, or would not, be enforced and upheld in court. It is not a guarantee that all DOT officers in all locales will interpret the law OR the guidance in the same way as you, Phil, Bob down the street, or the judge on the bench. But it's a pretty safe bet. When reading guidance like this, it's important to NOT assume things, to NOT include things that are not explicitly stated, and TO keep your application of the guidance as narrow as possible. Because that's how a court will apply it. Most of the time guidance statements like this are based on case law or attorney general opinions, so they will have direct bearing on prosecution as well as ruling. But not always. Consult an attorney if you want to be more certain (nothing is 100% certain until after a ruling and no more appeals are possible, and even then it is only 100% certain for that specific individual case).


A few things to note:


1) We're talking about "personal property". That means things that you personally own and retain ownership of. NOT things that you sell. All of the examples cited in the guidance are items that you retain ownership of before, during and after the event. And the question and guidance specifically state prize money. Not money for the sale of items. That is not explicitly addressed in the question and guidance. Whether it's birdhouses, hitches, lights, widgets, parts, or otherwise. It's clearly not addressed explicitly nor by implication in the question or guidance. The only extrapolation that can be reasonably made from the guidance is along the lines of items that you retain possession of and use for an activity in competition with others.


2) The guidance states that "the underlying activities must not be undertaken for profit". Occasionally taking personal property to an event to participate in the event for your own personal enjoyment is far different from taking an object to the event specifically to sell the item and make a profit.


3) You can't write off any aspect of the activity as a business expense. Whether it's the transporting vehicle/trailer, tools used to maintain the items you transport, the facility you use to maintain/store/repair the items, etc. You can't write those off as business expenses, even if they never come near the truck/trailer. Writing those off as a business expense is your way of declaring that the activity and item are, at least in part, a business expense and therefor are owned and used in "furtherance of a commercial enterprise".


In other words, you're there for the fun of the event, not to make money. The prize money is ancillary to your reason for being there, and you are personally receiving it and it does not get used in anyway for any kind of business. You attend these events occasionally. "Occasional" is a relative term, and in court it's going to be applied and interpreted within the context of the activity. And that is another discussion. In general, you can go with your gut on what "occasional" means and you'll be pretty close to on target.



Because 390.3.f.3 is written as an exemption, that means that anything that is not excluded by the exemption is necessarily under the authority of 390.


Relevant to the birdhouse discussion, what this means at the end of the day is that if you make or acquire something with the intention of selling it, and then transport it with a vehicle that meets the weight standards of a commercial vehicle, you have now caused that vehicle to also meet the use standards of a commercial vehicle and are subject to all of the requirements of 390. If you have owned a birdhouse for 50 years, and then decide to take it to a flea market to sell it because you want/need some money, that's also going to put you under the requirements of 390.


If you drive somewhere, anywhere, and transport items for sale, regardless of whether or not you actually sell them, you're subject to 390.


If you are in compliance with the law, then you can fight that in court. If you're not in compliance, you can sometimes negotiate with the law enforcement officer and his superiors. That doesn't make you legal, just lucky.



As Steve stated:


If you look commercial and do commercial things, you're running a high risk of getting a ticket or being charged for it.


If you look commercial and do NOT do commercial things, you have a much better chance of not getting a ticket for it, but you'll run the same odds of getting pulled over and talked to. And while most DOT officers will understand the difference, not all will.


If you don't look commercial but do commercial things, your odds of getting pulled over are low, but if you do, your odds of getting out of it or negotiating a lower penalty are probably lower. Mostly because law enforcement officers tend to take a dim view of people who knowingly try to circumvent the law in ways that may appear to be deceptive. But, if your commercial activities are easily hidden (like a few lights, a birdhouse, etc), then the odds of them finding out are low.


If you don't look commercial and do NOT do commercial things, then you are in the clear all the way. Even if you get pulled over, they won't find anything that they can legally ticket or charge you for. And even if they ticket or charge you, the courts will vindicate you in the end.

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Might add one thing .....(this is the point where I get in trouble) ......

 

So far we have not attempted to obtain bail or bribe with DrPepper .....however when we lower the Dollyhauler ramp and folks see that sleek, smiling, 1,050 pound "lady" with a glossy black mane and a brown patch over her right eye.....you do want to take the time to let the officer feed her a carrot and pat her on the rump before you continue out to the end of the end of the road to ride to more remote horse trails AND take another 100 pictures of the ride.

 

While Dolly and Dollymoma are 1000% Recreational trail geeks .....Dolly still could be one of those $100,000 roping horses that gallops for the big bucks every contest day.......but she isn't.....never has, never will and even Al Gore could not find evidence that she ever competed for anything except a carrot.

 

Now Dolly is a stunning lady but she ain't cheep so you are better off paying your DOT fines if you get pinched rather then getting a pretty "lady" for a diversion.......

 

Someday we might get stopped by a Dolly hater and get hassled so then we'll deal with whatever.....until then my job is to keep plenty of carrots nearby and the Dolly stall clean......

 

Drive on......( officer don't forget to let go of the carrot so you won't get your finger nipped when Dolly nibbles the carrot)

97 Freightshaker Century Cummins M11-370 / 1350 /10 spd / 3:08 /tandem/ 20ft Garage/ 30 ft Curtis Dune toybox with a removable horse-haul-module to transport Dolly-The-Painthorse to horse camps and trail heads all over the Western U S

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Phil, I did not intend to anger you or start any fights, if I did that I apologize. You are a valuable source of information on the forum from someone in law enforcement, which is the only reason I mentioned you by name.

 

You did specifically ask for my sources and real life experiences, so I related those in my reply.

 

Shifted, you are correct in that it is the officer's interpretation there at the side of the road. My interpretation differed from State Trooper's, and he specifically said several times, "well we'll just let 'them' figure it out". Them in this case being a PUCO case officer I was privileged to deal with for several months thereafter, and not a judge. But same principal. The next officer may have looked at my shiny new 4 hour old empty 14' trailer and sent me on my way.

 

Dave in Ohio

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Phil,

 

I hope retirement comes soon for you, as this is not the 1st or 5th time that someone on here has brought you to your "angry" place. Man, life is too short! And we are not debating the "design" of the Space Shuttle on here! I truly hope you "get" to relax in retirement and not have the coronary some have in your profession weeks before or after retiring.

Life is to short, relax! Heck I even invite you to Washington state! We have this "legal" relaxing agricultural product that works "wonders" for stressed out folks like yourself.

 

Peace out!

 

Curt

2001 Freightliner Century, 500hp Series 60, Gen 2 autoshift, 3.42 singled rear locker.

2004 Keystone Sprinter 299RLS (TT)

2 & 4 Wheelers!

2013 Polaris Ranger 800 midsize LE

Our motto "4 wheels move the body, 2 wheels move the soul!"

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  • 3 weeks later...

So using this logic, a living quarters race trailer that is hauled by an RV registered HDT is legally an RV if he unhooks the trailer prior to entering the race track after driving half way around the country! He can then have his buddy with a CDL hook up the trailer to his Commercially registered truck and have his friend drag that trailer into the revenue generating facility for the night of racing and pay. At the end of the night, they reverse the process and it's all legal!

 

That about sums up Gargoyles argument with the birdhouse salesman.

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So using this logic, a living quarters race trailer that is hauled by an RV registered HDT is legally an RV if he unhooks the trailer prior to entering the race track after driving half way around the country! He can then have his buddy with a CDL hook up the trailer to his Commercially registered truck and have his friend drag that trailer into the revenue generating facility for the night of racing and pay. At the end of the night, they reverse the process and it's all legal!

 

That about sums up Gargoyles argument with the birdhouse salesman.

Only as long as the car inside the trailer has no signage, the trailer has no signage, the owner receives nothing and is not present at the track.

Alie & Jim + 8 paws

2017 DRV Memphis 

BART- 1998 Volvo 610

Lil'ole 6cyl Cummins

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Only as long as the car inside the trailer has no signage, the trailer has no signage, the owner receives nothing and is not present at the track.

So the owner of the birdcage "Hobby" can receive no compensation for the birdcage at the flea market then. That is the problem with Gargoyles justifications he constantly carves out in his stories of who is legal or not!

 

He has many "Friends" on here he turns a blind eye to because they are his friends and wants to crucify the horsey and racers that are NOT his friends.

 

I can assure you that the Birdcage Guy is operating with better profit margins based on material costs from conception to revenue than 99.9% of the Horsey/Racer world. So who is truly commercial as opposed to hobby!

 

I really don't care what is legal or not. That is for a judge to decide! What I don't like is the hypocrisy of enforcement when one is "OK" because he's a friend and the other is "NOT"!

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This horse has dead been so long, the buzzards don't even visit. Do what you wish, but be aware that the officer along the road may not agree with you, and he can have you impounded. In the end, the judge may rule in your favor, but is it really worth it to maybe prove a point?

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Young enough to play in the dirt as a retired farmer.
contact me at rickeieio1@comcast.net

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