ALJDEC

01-11224-AFR · Office of Alternative Fuel Recovery · 2001-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2001 APPEARANCES: Petitioner George Geisler appeared on his own behalf. Assistant Attorney General Patrick Irvine appeared on behalf of the Office of Alternative Fuel Recovery. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________ George Geisler challenged a decision by the Office of Alternative Fuel Recovery to deny, in part, his Alternative Fuel Loss Reimbursement Application. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT On August 23, 2000, Petitioner George Geisler and his wife Donna placed an order with Fuller’s White Mountain Motors (“Fuller’s”) to purchase a new Ford F450 pickup truck that would be factory-converted to run on an alternative fuel, propane gas, in addition to conventional fuel. The purchase price of the Geislers’ new truck was $39,000.00. To secure their order, the Geislers placed with Fuller’s a $3,900.00 down payment. When the Geislers ordered their new truck, they did so in reliance on the State of Arizona’s then-existing alternative fuel vehicle subsidy program. This 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. Before the Geislers took delivery of their new vehicle, the Arizona Legislature modified the parameters of the alternative fuel vehicle program such that the Geislers no longer qualified for an alternative fuel vehicle subsidy. The Geislers thereafter canceled their order with Fuller’s; however, Fuller’s did not return the Geislers’ $3,900.00 down payment. On January 4, 2001, the Geislers submitted an application to the Office of Alternative Fuel Recovery (the “Office”) for reimbursement of their $3,900.00 down payment plus $8,016.90 in additional expenses that the Geislers claimed to have incurred in consequence of their decision to purchase an alternative fuel vehicle. By correspondence dated February 23, 2001, the Office approved the Geislers’ request for reimbursement of their $3,900.00 down payment. However, the Office denied the Geislers’ remaining claims on the grounds that the statute governing those claims, Senate Bill 1004 (“SB 1004”),[1] did not permit the Geislers’ requested reimbursement. The specific items for which the Geislers claimed reimbursement, and the factual bases underlying those claims, are as follows: Replacement Cost of New Truck g. Prior to placing their order with Fuller’s for their new truck, the Geislers owned a 1989 Ford F350 truck. The Geislers used this truck as a work vehicle. h. On August 27, 2000, shortly after placing the order with Fuller’s for their new truck, the Geislers sold their old truck for $5,000.00. The $5,000.00 purchase price included $500.00 worth of equipment, including a 2-way radio, a rack, a trailer hitch and an electric brake control. At hearing, the Geislers testified that they sold their old truck because the needed the money. i. The Geislers contended that because the change in the alternative fuel vehicle program caused them to cancel the order for their new truck, they must now buy another truck to replace their old truck. The Geislers asserted that it will cost them $10,290.00 to purchase a replacement 1989 Ford F350. After deducting from this price the $4,500.00 that they received for their old truck, the Geislers urged that they are entitled to reimbursement from the State in the amount of $5,790.00. Replacement Cost of Equipment Sold with Old Truck j. In addition to the cost of purchasing a replacement truck, the Geislers claimed that they should be reimbursed for the cost of replacing the 2-way radio, rack, trailer hitch and electric brake control that they sold with their old truck. The Geislers asserted that it will cost them $1,560.00 to purchase this equipment. After deducting from this price the $500.00 that they received in the sale of their old truck, the Geislers contended that they are entitled to reimbursement from the State in the amount of $1,060.00. Out of Pocket Expenses k. In anticipation of receiving their new truck, the Geislers spent $1,166.90 on a grill guard and steps, and on steel to make a flat bed. The Geislers maintained that they are entitled to reimbursement from the State of this amount. As can be seen from the foregoing, the gravamen of the Geislers’ claim is that the State should place them in the position they were in before they ordered their alternative fuel vehicle. At hearing, the Office did not challenge the amount of the Geislers’ claims. Instead, the Office re-urged the argument set forth in its February 23, 2001 denial letter that the Geislers’ claims were not reimbursable because they fell outside the scope of permissible claims as set forth in SB 1004. CONCLUSIONS OF LAW In this proceeding, the Geislers bear the burden to prove, by a preponderance of the evidence, that the Office improperly denied their application for alternative fuel loss reimbursement. See Arizona Administrative Code (“A.A.C.”) Rule R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence ' 5 (1960). SB 1004 sets forth the law governing the Geislers’ 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 cancelled 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.

The Geislers did not establish that any of their reimbursement claims fell within any of the three categories of reimbursable costs established under SB 1004, Section 32(A). Therefore, the Geislers did not establish that they were entitled to reimbursement for these claims. Because the Geislers did not establish that their claims were eligible for reimbursement under SB 1004, they did not establish that the Office improperly denied their application for alternative fuel loss reimbursement. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Office affirm the denial of the Geislers’ reimbursement application.

Done this day, June 11, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

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

Kathy Peckardt, Director Office of Alternative Fuel Recovery ATTN: Lorinda Goodman 1700 W. Washington, Suite 103 Phoenix, AZ 85007

By ___________________________ ----------------------- [1] Laws 2000, 7th S.S., Ch. 1.

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