ALJDEC decisions subject to certification as final

07F-7820-DWM · Department of Weights and Measures · 2007-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 24 July 2007 APPEARANCES: Licensee: Tom Amos, Onwer, Maverick Petroleum. Agency: John Jacobs, Assistant Attorney General; Shawn Marquez, Compliance Program Manager, Department of Weights and Measures. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Licensee appeals Agency’s determination to impose a civil penalty upon Licensee. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Decision to the Director of the Department of Weights and Measures (“DWM” or “Agency” ). FINDINGS OF FACT 1. Licensee is a Registered Service Agency (“RSA”) licensed under the Agency to install, repair and service motor fuel dispensing equipment. A Placed In Service Report (“PISR”) dated 12 April 2007 involving several new commercial fuel dispensing pumps placed in service at a new Love’s store in Yuma, Arizona, was filed with the Agency by one of Licensee‘s Registered Service Representatives (“RSR”) Mr. John Stanage. The Agency reviewed the PISR and found it to have incorrect and incomplete data, including 1) no signature by a representative of the gas pump/business owner, 2) incorrect gas pump fee codes, and 3) incorrect gas pump model numbers. Agency Agent Bill Wriston confirmed the proper gas pump fee codes by personally inspecting the pumps in Yuma. Had the incorrect feed codes been used to assess gas pump taxes upon Love’s store, and annual overcharge to Love’s of $480 would have resulted. 2. The PISR was returned to Licensee for correction along with a Notice of Penalty dated 2 May 2007 assessing a civil penalty of $50. Although the Notice of Penalty lists the penalty for being a violation of AAC R20-2-602(A)(2)(b), Mr. Marquez clarified at hearing that the specific violation was for filing an inaccurate PISR, a violation of AAC R20-2- 104(M)(1), which provides specifically for the $50 civil penalty. Licensee responded by letter on 22 May 2007, and indicated that Licensee did not perceive anything improper regarding the PISR, and resubmitted it without correction. Mr. Marquez testified that imposition of the civil penalty is discretionary, and that a particular PISR may be sent back to an RSA for correction two and three times without penalty. However, in this case, due to the size of the pump installation (9 multi-hosed pumps), the number of discrepancies on the PISR, and repeated instances of these types of mistakes by the Licensee, it was determined to impose the penalty. 3. Mr. Amos contended that the gas fee codes listed in the original PSIR were correct, but had not inspected the pumps himself. He admitted to being somewhat rushed in filing this particular PISR, as there is a 7 day deadline from the date of service in which to file the PISR. The reason that the business representative signature was missing was due to the fact that the Love’s store was new, not open yet, and there was no one at the store site to sign on behalf of Love’s. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Arizona Department of Weights and Measures pursuant to A.R.S. §§ 41-2115. The matter was set for hearing at the Office of Administrative Hearings in accordance with A.R.S. § 41-1092, et. seq. 2. A.R.S. § 41-2115(B)(3) authorizes the Department of Weights and Measures to impose civil penalties for violations of Department statues and rules. The burden of proof in the instant case is upon the agency seeking to impose the penalty. ARS § 41-1092.07(G). 3. The weight of the evidence adduced at hearing supports, by a preponderance of reliable, substantial and probative evidence, that DWM was within its statutory, regulatory and legal authority to impose the civil penalty at issue in this case. Accordingly, this appeal should be denied. 4. It is noted that testimony at hearing revealed that the civil penalty in this case was imposed upon return of the PISR to the Licensee for correction, and was imposed discretionarily. The provisions of AAC R20- 2-104(M)(1) state as follows:

1. If a registered service agency submits to the Department an inaccurate or incomplete placed-in-service or test report, the Department shall:

a. Return the inaccurate or incomplete placed-in- service or test report to the agency for correction,

and b. Impose a $50 civil penalty on the agency each time the agency resubmits a placed-in-service or test report without making all needed corrections. [emphasis added]

A comparison of the above rule to the facts of this case as related at hearing raises two issues. The first issue is the timing of the imposition of the civil penalty. It appears in this case that the civil penalty was imposed upon the return of the PISR to Licensee, prior to Licensee being provided a chance to correct (or not correct, as in this case) the PISR and resubmit it. The rule clearly states that the penalty shall be imposed upon resubmittal of a PISR that is not properly corrected, and not upon the PISR’s return to the RSA for correction. It appears that in this case the penalty imposition preceded the resubmittal of the incorrect PISR. In all things, cause is followed by effect…..but not here, apparently. The second issue involves the apparent discretionary manner in which the Agency imposes civil penalties for violations of AAC R20-2-104(M)(1). Although Mr. Marquez testified that PSIR’s are often returned to RSA’s for correction two and three times without penalty, and that the imposition of the penalty in this case was based upon several determining factors not mentioned in the rule, the rule clearly states that resubmittal of an uncorrected PISR “shall” result in a $50 penalty. The rule is mandatory, not discretionary; otherwise, the word “may” would have been used instead of the word “shall”. Nonetheless, it is clear from the evidence elicited at hearing that a violation of AAC R20-2-104(M)(1) by Licensee did occur, although it appears the penalty was imposed before the violation actually occurred.

DECISION It is recommended that this appeal be denied and this case be remanded to the Director of the Arizona Department of Weights and Measures for appropriate disposition.

Done this day, August 10, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Seth Mones, Acting Director Arizona Department of Weights and Measures 4425 W. Olive Ave. Suite 134 Glendale, AZ 85302

By ___________________________ -----------------------

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