ALJDEC

01-10236-AFR · Office of Alternative Fuel Recovery · 2001-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, 2001. APPEARANCES: The Appellant, Michael V. Vastano, appeared personally. The Arizona Office of Alternative Fuel Recovery was represented by Assistant Attorney General Lisa A. Neuville. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Appellant, Michael V. Vastano, appealed from a decision by the Office of Alternative Fuel Recovery to deny a portion of his Alternative Fuel Loss Reimbursement Application. Mr. Vastano seeks the sum of $4,042.25, which had previously been denied. 2. In the Fall of 2000, Mr. Vastano entered into a contract for the purchase of a new gasoline fueled Chevrolet Tahoe sports utility vehicle. The contract price was $39,042.00 3. When Mr. Vastano ordered his new truck, he did so in reliance on the State of Arizona’s then-existing alternative fuel vehicle subsidy program. That program offered grants or tax credits to persons who purchased alternative fuel vehicles or who converted vehicles to run on alternative fuel. See Laws 2000, Ch. 405. 4. At the time he contracted for his truck, Mr. Vastano also made arrangements with a Utah-based conversion company for the vehicle to be converted to also run on compressed natural gas. 5. The total cost to Mr. Vastano for the conversion amounted to $10,000.00. 6. Mr. Vastano paid a down payment of $5,000.00 to the conversion company. 7. Before Mr. Vastano took delivery of his new vehicle, the Arizona Legislature modified the parameters of the alternative fuel vehicle program such that Mr. Vastano no longer qualified for an alternative fuel vehicle subsidy. 8. Mr. Vastano was unable to rescind his contract to purchase the vehicle without financial loss, so he paid for the truck and had it sent to the conversion company. 9. He was able to cancel the conversion services. The conversion company retained the sum of $1,350.00 for restocking charges and returned the balance of Mr. Vastano’s down payment. 10. Because he was financially unable to afford the truck without the subsidy program’s incentives, Mr. Vastano ultimately resold the vehicle for the price of $35,000.00 to a private buyer. 11. On or about December 22, 2000, Mr. Vastano filed his Alternative Fuel Loss Reimbursement Application with the Office of Alternative Fuel Recovery. He requested payment in the total amount of $5,392.25. A portion of Mr. Vastano’s claim in the amount of $1,350.00 reflected the amount retained by the conversion company when he canceled the conversion. He also sought reimbursement for additional financial losses in the sum of $4,042.25, which were damages measured by the price he paid for the vehicle less the price he received when he resold the truck. 12. By letter dated February 20, 2001, the Office of Alternative Fuel Recovery approved Mr. Vastano’s claim in the amount of $1,350.00. However, it denied his claim in the amount of $4,042.25 because that sum represented the financial loss on the resale of his truck. The Office of Alternative Fuel Recovery denied that portion of the claim after determining that the financial loss on the resale of Mr. Vastano’s truck was not reimbursable under SB 1004, which is the legislation governing reimbursements under the subsidy program. CONCLUSIONS OF LAW

1. In this proceeding, Mr. Vastano bears the burden to prove, by a preponderance of the evidence, that the Office of Alternative Fuel Recovery improperly denied that portion of his application for alternative fuel loss reimbursement in the amount of $4,042.25, which represents his alleged financial loss on the sale of his truck. A.A.C. R2- 19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention in more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 2. SB 1004 sets forth the law governing Mr. Vastano’s claim for reimbursement. Section 31 of SB 1004 provides, in relevant part: A. A person is eligible to present a claim for reimbursement to the department of administration if the person might have been eligible for a tax credit under section 43-1086, 43-1086.01, 43-1086.02, 43-1174, 43- 1174.01 or 43-1174.02, Arizona Revised Statutes, before the applicable section was amended by this act but does not meet the requirements imposed by this act and both of the following apply:

1). The person canceled a contract or purchase order to purchase or lease a vehicle or to convert a vehicle to operate on alternative fuel, or to purchase, install, or construct a vehicle refueling apparatus or an alternative fuel delivery system.

2). The person suffered actual monetary loss directly related to the purchase or lease of a vehicle, to the conversion of a vehicle to operate on alternative fuel or to the purchase, installation or construction of a vehicle refueling apparatus or an alternative fuel delivery system.

Section 32 of SB 1004 provides, in relevant part: A. Only the following actual monetary losses directly related to the purchase or lease of a vehicle or to the conversion of a vehicle to operate on alternative fuel shall be reimbursed by the state:

1). Any forfeited down payment or deposit paid by the claimant to a motor vehicle dealer or a conversion company, or both.

2). The fair market value of a vehicle traded to a motor vehicle dealer in lieu of a down payment or deposit.

3) Any financial penalty imposed by a motor vehicle dealer, conversion company or lender because of cancellation of a contract, if the original terms of the contract signed on the date of the purchase or order require that such a penalty be paid.

3. Mr. Vastano did not establish that portion of his claim in the amount of $4,042.25 for the alleged financial loss he sustained when he resold his truck fell within any of the three categories of reimbursable costs established under SB 1004, Section 32(A). Therefore, Mr. Vastano did not establish that he was entitled to reimbursement for that portion his claim previously denied by the Office of Alternative Fuel Recovery. 4. Because Mr. Vastano did not establish that his claim was eligible for reimbursement under SB 1004 for that portion of his claim, he did not establish that the Office of Alternative Fuel Recovery improperly denied that portion of his application for alternative fuel loss reimbursement in the amount of $4,042.25.

RECOMMENDED ORDER Based on the foregoing, it is recommended that the Office of Alternative Fuel Recovery’s denial of Mr. Vastano’s reimbursement application in the amount of $4,042.25 be upheld Done this day, July 11, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Department of Administration Office of Alternative Fuel Recovery Elliott Hibbs, Director 1700 W. Washington, Suite 103 Phoenix, AZ 85007 ATTN: Michael Murphy

By ___________________________

-----------------------

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