ALJDEC

00A-107024-LOT · Arizona Lottery · 2001-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2000. APPEARANCES: Sylvia Vaca, Appellant’s representative; LaDonna Ockinga, Respondent’s representative; Loraine Wade, Graham Bennett, and Tony Vaca, witnesses. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________

Appellant, Pirtleville Grocery, appeals a proposed revocation of its Arizona Lottery Retailer’s License for failure to maintain sales and failure to maintain sufficient funds on account to pay Lottery taxes. On consideration of the evidence at hearing, Arizona Lottery has established that the proposed license revocation is appropriate and in accordance with the applicable laws and rules. Therefore, I recommend that this appeal be denied. FINDINGS OF FACT 1. Appellant is a grocery business operated by Sylvia Vaca. Ms. Vaca has had an Arizona Lottery Retailers License since about 1994. In late 1998, Ms. Vaca fell at her business and hit her head. Since then she has come to realize that she cannot concentrate, focus or remember things well. As a result, she has had problems running her business. One problem is that she has had insufficient funds for the automatic . . . . . . electronic transfers for the taxes collected by the Arizona Lottery on occasion. She had insufficient funds on February 26, 1999, on October 29, 1999, on January 14, 2000 and on August 11, 2000. This meant she had three insufficient funds events in two 12 month periods. 2. Because of the insufficient funds events, the Arizona Lottery decided to revoke her license, notifying her of the decision in a letter dated September 20, 2000 and informing her of her right to appeal. Ms. Vaca appealed the decision on October 20, 2000 resulting in the hearing held on December 19, 2000. 3. At hearing, the representative of the Arizona Lottery argued that the rules applicable to Arizona Lottery Retailers License holders do not allow having two payments returned to the Lottery for insufficient funds in a twelve month period which is caused by the retailer’s actions. She also argued that Pirtleville Grocery had failed to maintain an average weekly sale of tickets required by rule. Since the Lottery has recently made allowances for retailers who can’t make the minimum average weekly sale amount, Arizona Lottery wants to revoke the license based only on the insufficient funds events. 4. Ms. Vaca appeared at hearing and argued that she has been ill due to her fall but has hired people to help her so that future incidents do not occur. Her husband testified that he ignored her illness and laughed at her when she complained of being unable to focus. He has never helped her in any way before, but now he wants to quit his job and help her a little. 5. The Lottery representative argued that even with Ms. Vaca’s new help, it is not clear to the Lottery that she has the bank accounts arranged so that insufficient funds will not happen again. If she loses her license, she can reapply in one year. CONCLUSIONS OF LAW 1. The Director of the Arizona Lottery has jurisdiction to render a final decision in this matter pursuant to A.R.S. §§5-506 and 41-1092. 2. The Arizona Lottery Director may adopt rules governing the issuance of Arizona Lottery Retailer’s Licenses and for all matters necessary or desirable for the operation of a more efficient and economical lottery. A.R.S. §5-504(B). 3. Rules adopted to fulfill these purposes provide that licensees must maintain a minimum number of sales to keep their licenses and must not have two payments returned to the Lottery for insufficient funds in a twelve month period which is caused by the retailer’s action. A.A.C. R19-3- 203(A)(4) and (8). 3. In this case, the Lottery has established that Appellant has had two checks returned in a twelve month period (three, in fact, in two 12 month periods) and has not maintained sufficient sales to ensure the proficiency of the Lottery. Although a program is beginning wherein retailers may pay the insufficiency of not meeting sales goals, Appellant’s license is still properly revoked. Appellant still has failed to meet the requirement for maintaining sufficient funds in her account to pay the Lottery. Although she maintains that it will not happen again, she has not offered a basis for finding the proposed revocation improper which is recognizable in the applicable laws. Therefore, this appeal should be denied. RECOMMENDED DECISION Based upon the above considerations, I recommend that this appeal be denied and that Arizona Lottery’s proposed license revocation in the above matter be sustained. Done this day, January 4, 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Arizona Lottery Geoffrey Gonsher ATTN: Loraine Wade 4740 East University Drive Phoenix, AZ 85034

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826