ALJDEC decisions subject to certification as final

08F-8922-DWM · Department of Weights and Measures · 2008-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 21, 2007 APPEARANCES: Assistant Attorney General Dawn Walton Lee on behalf of the Arizona Department of Weights and Measures; Nancy Langan on behalf of Jeannie’s Taxi ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. This matter involves an appeal of a notice of violation issued by the Arizona Department of Weights and Measures (“Department”) against Nancy Langan ("Ms. Langan”) owner and operator of Jeannie’s Taxi. The violations noticed were failure to maintain required signage and over-registration resulting in the assessment of a total civil penalty of $300.00. 2. Ms. Langan contacted the Department and provided documents to the Department showing that a vehicle with Arizona license plate number 4ZD462 (“Vehicle”), was being placed in service. 3. Debra Rader (“Investigator Rader”), an investigator with the Department was notified by Lupita Peale with the Department that the Vehicle needed to be inspected. 4. In August 2007, Investigator Rader contacted Ms. Langan by e-mail notifying her of two dates and appointment times to choose from, August 23 and August 24, 2007. Ms. Langan did not respond to the e-mails. On both of the appointment times and dates Investigator Rader appeared and Ms. Langan and the Vehicle did not appear. The Vehicle was not inspected on either of those dates. 5. Investigator Rader wrote up a report for Ms. Langan failing to appear and a civil penalty was imposed for hindering an inspection. No further evidence was presented concerning the outcome of that recommendation. 6. On October 12, 2007, Investigator Rader, while performing her normal duties, came across the Vehicle on Broadway and Park in Tucson, Arizona. She stopped and conducted an inspection of the Vehicle. She found the Vehicle to not be licensed and attached a yellow tag to the Vehicle and arranged for an appointment inspection to be conducted on October 15, 2007. 7. Ms. Langan testified that ever since she purchased the Vehicle from Weiss Guys formerly known as Road Runner Sales, she has had problems with how the car runs. Because she incurred expenses in outfitting the Vehicle with signage, meter and top light to function as a taxi cab, she did not accept Weiss Guys’ offer to take the Vehicle back and return Ms. Langan’s initial purchase price to her. 8. Prior to the October 12, 2007 inspection, the Vehicle has been registered and operating as a taxi cab and had also been taken off the road. 9. On October 12, 2007, one of her taxi cab drivers had taken the Vehicle home. He was driving the Vehicle in an attempt to determine how it runs and whether it could operate on the road. The Vehicle had a tendency to stall. Despite attempts being made to have the Vehicle repaired, the problem that Ms. Langan had with the Vehicle could not be determined and corrected. 10. Ms. Langan testified that she kept the Vehicle running in order to determine the nature of the problem and have it corrected. 11. On October 15, 2007, Investigator Rader conducted an Inspection of the Vehicle and determined that it failed because of signage and the time and distance testing at the Department’s testing site showed it be overregistered. 12. The Department follows the National Institute Standards and Technology (“NIST”) that is published in handbook 44. NIST requires that a Vehicle’s taxicab meter to function so as to register over a distance of one mile the rate that the taxi cab‘s meter is registered at. NIST provides for a 1% leeway prior to the one mile marker. That means that if the taxi cab’s meter shows a charge for one mile at a distance before 53 feet of the one mile mark, it would be overcharging its customers and is considered to be overregistered. 13. As a result of the October 15, 2007 inspection, Investigator yellow tagged the Vehicle and required it to be repaired within seven days, 14. An inspection was scheduled for November 5, 2007. On that date, the Vehicle was presented for inspection. At that time, it was noted that the flag drop rate, the starting rate when the taxi’s flag is dropped to commence rate charging, was listed as $3.00 on the exterior of the Vehicle but inside the Vehicle the flag drop rate inside was listed as $4.00. 15. Investigator Rader testified that the inconsistency between the flag drop rate on the exterior and interior of the Vehicle can cause confusion to a customer and violates applicable law requiring consistent rate signage and is detrimental to the public. Investigator Rader issued a notice of violation to Jeannie’s Taxi for inconsistent signage on the exterior and interior of the Vehicle and for over-registration. A $300 civil penalty was assessed against Jeanne’s Taxi. 16. Ms. Langan testified that she contacted Lupita Pearle and canceled the inspections in August 2007 because the Vehicle was not “roadworthy”. 17. Ms. Langan contended that the Vehicle was not operating as a taxi cab on October 12, 2007 and that Jeannie’s Taxi was “forced” into an inspection. 18. Ms. Langan acknowledged that the Vehicle did not have any Out of Service sign on October 12, 2007, and that though the Vehicle was not operating as a taxi cab it was on the street. Ms. Langan also acknowledged that when a vehicle she owns is no longer operating as a taxi cab, she has the signage, taxi meter and top light removed from the Vehicle. 19. Ms. Langan did not remove the signage, top light or taxi meter from the Vehicle because she was intending to use it a taxi cab once she was convinced it could not run without any stalling problem. 20. Although Ms. Langan was attempting to maintain her investment and not remove the taxi cab devices and features that had been added to the Vehicle, the Vehicle looked like it was a taxi cab minus the Department’s registration decal. Thus, despite the contention that the Vehicle was not road worthy, it was on the road being used to determine if it was reliable enough to function as a taxi cab. 21. During the time the Vehicle was on the streets looking like a taxi cab, it was, for all intent and purpose, a taxi cab even though no passengers were being transported and no rates were charged. 22. Ms. Langan testified that, in the past, the Department would permit certain infractions of the law to be corrected on the spot. Jeannie’s taxi presented the Vehicle for an inspection on November 7, 2007 for an inspection to determine if the deficiencies previously noted had been corrected. At the November 7, 2007 inspection, the signage problem had not been corrected and Ms. Langan offered to immediately correct the inside signage of the flag drop rate. That request was denied and the Department noted the signage deficiency. 23. Ms. Langan testified that the signage contractor she uses for her vehicles including the one at issue made a mistake and, when she noticed it, could not have it corrected because that person was unavailable due to his need to undergo surgery. 24. Ms. Langan contended that the signage issue was easily corrected, that there was a plausible explanation s to why the inconsistency exited and had not been corrected, and that the penalty $300.00 for the signage issue was excessive and ridiculous. 25. According to Ms. Langan, she went to Greg Kaiser, to have the Vehicle taxi meter corrected. Mr. Kaiser did not remove the security seal and did not have to recalibrate the meter. 26. Ms. Langan testified that she checked the tire pressure prior to the November 7, 2007 inspection and does not believe that that could be the cause of failing the distance test. She believes that the test result failing her was in error. 27. Ms. Langan testified that Mr. Kaiser performed no work on the taxi cab meter and completed a repair form that was submitted and accepted by the Department. With the submission of Mr. Kaiser’s report and Ms. Langan’s correction of the above-mentioned signage issue, the Vehicle passed inspection and was registered with the Department. 28. Deputy Director Dennis Erhart (“Deputy Director Erhart”) testified as to his background and experience within the field of weights and measures and established himself to have expertise in that area. 29. Deputy Director Erhart testified that though there are other reasons, there are two main reasons why a vehicle might fail a time and distance test by being overregistered: that the taxi meter required recalibration or that the tire pressure of the tires are not what is specified by the car manufacturer. 30. According to Deputy Director Erhart, the cause of the Vehicle to not pass inspection does not alter the fact that the Vehicle did not pass. If an investigator determines that tire pressure might be the cause of the failure, the investigator can note it but that would not affect the failure determination. The Department is required to insure that taxi meters are not overregistered in accordance with NIST Handbook 44, 2003 edition. 31. Deputy Director Erhart testified that Mr. Kaiser is a service technician licensed by the Department. 32. According to Deputy Director Erhart, the Department is required to impose a civil penalty of $300.00 in accordance with A.A.C. R20-2-104. Applicable Law 1. A.R.S. § 41-2091 (M) requires “[a] taxi or livery vehicle shall have a license issued under this chapter posted on the outside of the rear window as required by the department.” 2. A.R.S. § 41-2096 provides: A. A taxi or livery vehicle shall display interior signage that contains the licensee's business name and address and that is all of the following: 1. Permanent. 2. In letters at least one-half inch in height. 3. Readily visible. 4. Accurately representative of all fares and the fare computation method. B. A taxi is required to display exterior signage that contains the licensee's business name and telephone number, that contains the word "taxi" or "cab" and that is all of the following: 1. Permanent. 2. In letters at least three inches in height. 3. Readily visible and a minimum of one inch in height for fare information. 4. Accurately representative of all fares and the fare computation method. C. For purposes of this section, a livery vehicle shall display exterior signage that is readily visible while the livery vehicle is not occupied by a paying passenger. The signage must contain the business name and the words "livery car" in letters at least three inches in height and shall include fare information at least one inch in height. When a livery vehicle has accepted a passenger and a fare has been determined, a livery vehicle may remove the exterior signage.

3. A.R.S. 41-2064 provides: The specifications, tolerances and other technical requirements for commercial devices as adopted by the national conference on weights and measures and published in national institute of standards and technology handbook 44, "specifications, tolerances, and other technical requirements for commercial weighing and measuring devices" shall apply to commercial weighing and measuring devices in the state. The edition of the national institute of standards and technology handbook 44 shall be determined by rule, pursuant to section 41-2065, subsection A, paragraph 4.

4. A.R.S. § 41-2115 provides that“[a] person who violates this chapter, any rule of the department or any license requirement is subject to a civil penalty imposed by the director the civil penalty shall not exceed five hundred dollars for each infraction nor more than five thousand dollars for any thirty day period at each business location.”

5. A.A.C. R20-2-104(F)(3) and (F)(10)(b) provides:

3. The Department shall issue an out-of-service tag or a stop-sale, stop- use tag if a commercial device is not in compliance with the requirements in Handbook 44 and the lack of compliance creates a situation favorable to the person who owns or operates the commercial device. a. A person shall not use a commercial device that has an out-of- service tag until the person repairs the commercial device. b. A person shall not sell or use a commercial device that has a stop- sale, stop-use tag until the commercial device meets the requirements of A.R.S. Title 41, Chapter 15, Handbook 44, and this Chapter.

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If the Department finds during an inspection that a person who weighs a product on a commercial device violates Handbook 44 or does not post rates according to Handbook 44 or this Chapter: i. The Department shall issue an administrative order to the person at the conclusion of the inspection and impose a $300 civil penalty; and ii. The Department shall issue an administrative order to the person and impose a $500 civil penalty at each reinspection until the person complies with Handbook 44 and this Chapter.

CONCLUSIONS OF LAW 1. This matter is a disciplinary matter and, as such, the Department must prove by a preponderance of the evidence that Jeannie’s Taxi violated the statutes and rules pertaining to taxi cabs, as set forth in the Notice of Hearing issued in this matter. See A.R.S. § 41-1092.07(G)(3) and A.A.C. R2-19-119. 2. 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). It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 3. The Department contended and presented evidence to support its finding that the Vehicle was operating as a taxi cab during the relevant time. In contrast, Jeannie’s Taxi maintained that the Vehicle was not operating as a taxi cab. 4. The weight of the evidence of record established that during the relevant time, the Vehicle was a taxi cab. The vehicle had signage indicating it was a taxi and that the Vehicle had a top light with the display of Jeannie’s Taxi are all factors that indicated that the Vehicle was a taxi cab during the above-mentioned time. The fact that no passengers were observed to be transported or paying rates to Ms. Langan does not outweigh the above-mentioned factors that established the Vehicle was on the streets appearing as a taxi cab. 5. The Department presented evidence that the Vehicle did not pass the time and distance test because it was overregistered. However, Jeannie’s Taxi presented credible evidence that a licensed service technician completed a repair form that was for the Vehicle but did not recalibrate the taxi meter and found that it operated correctly. Further, after the Department received the service technician’s repair form and upon Ms. Langan correcting the signage with respect to the flag drop rate, the Vehicle passed inspection and became registered with the Department as a taxi cab. 6. It appears that either the Mr. Kaiser, service technician, made a mistake or the Department made a mistake with its test. The Administrative Law Judge has no reason to disbelieve either party in this regard. However, in light of the fact that the Department accepted Mr. Kaiser’s repair form and registered the Vehicle when the taxi meter was not recalibrated and because the Department bears the burden of proof, the Administrative Law Judge concludes that the weight of the evidence of record does not support a finding that the Vehicle was overregistered and, thus, no violation A.R.S. § 41-2064 is found. 7. The weight of the evidence of record established that Jeannie’s Taxi violated A.R.S. § 41-2096 by not having the signage required of a taxi cab. 8. Given the nature of the above-mentioned violation and the extenuating circumstances, the Administrative Law Judge concludes that although grounds exist to support the assessment of a civil penalty up to $500 for the violation, the Director of the Department should exercise his discretion and assess a civil penalty in the sum of $100.00. ORDER Based on the above, the Department’s assessment of a $300.00 civil penalty against Jeannie’s Taxi in connection with Notice of Violation No. 08F-8922-DWM is amended to reflect one violation of A.R.S. § 41-2096 and an assessment of a civil penalty in the amount of $100.00. Jeannie’s Taxi shall pay to the Department a civil . . . . . . . . . penalty in the amount of $100.00 within forty-five days of the effective date of the Order entered in this matter. Done this day, April 4, 2008.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

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

By ___________________________

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