ALJDEC decisions subject to certification as final

08F-9025-DWM · Department of Weights and Measures · 2008-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 29, 2008 APPEARANCES: Elizabeth Campbell Assistant Attorney General appeared for the State. Salah Sawalhi, Owner, appeared in his own behalf as the Respondent- Licensee ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. On December 23, 2007, at approximately 2:25 a.m., Arizona Department of Weights and Measures (Department) Investigator, J.J. Stroh (Stroh), was working with a Driving Under the Influence (DUI) taskforce at a checkpoint in the area of 28th Street and Indian School Road in Phoenix, Arizona. 2. The Respondent Salah Sawalhi (Sawalhi), is the owner of the Department licensee, North Valley Trans, which has five livery vehicles registered with the Department. According to Stroh, Pat Murphy (Murphy), drove one of the vehicles to the checkpoint area and initially pulled into the taxi lane[1]. Stroh testified that after about 30 seconds, Murphy pulled out of the taxi lane and into the main parking lot[2]. The vehicle had no exterior signage. Stroh noted the license plate which showed the vehicle was registered with the Department as a livery vehicle[3]. 3. Stroh contacted Murphy and informed him the vehicle required exterior signage. Murphy obtained a magnetic sign from the trunk and placed it on the side of the vehicle. The sign stated: “North Valley Cab 602-709-9984 Flag Drop… $3.00 Each Mile…$1.95 Special Event… $2.50 /Mile Traffic Delay… $39.00 /Hr.”

4. Murphy testified that the above sign is not the one which he normally uses[4]. However, Murphy testified that once he had the signage on the vehicle, Stroh said he could pick up the person he was to transport. 5. Stroh testified that upon looking inside the vehicle, he noted red glow from a light emitting diode, and upon further investigation, discovered a taxi meter device on the steering wheel column. The meter was plugged in, and according to Stroh, it showed the number 153.00[5]. 6. After seeing the meter, Stroh removed the Department issued decal and plates from the vehicle. He also disconnected and removed the meter. This placed the vehicle out of service. 7. Sawalhi began his business as a taxi service but switched to the livery service in May, 2007. 8. According to Sawalhi, he was unaware of any statutory signage requirements for livery vehicles. In addition it was his belief that signage was not required on the vehicle if a fare had been established with a passenger. Sawalhi testified this belief was based on a Department information flyer[6] which states that a livery vehicle must “post rates until a fare is established”. 9. With respect to the meter, Sawalhi testified all his former taxis had meters which are not used after the taxis were converted to livery vehicles. The meters remain in the vehicles under the dashboard with the exception of the instant case where the meter was on the steering column. 10. Phoenix police officer James Lawler (Lawler) testified he called the Respondent for up to ten transports on the night in question. He has used the Respondent’s services himself and never known him to use the meter[7]. 11. The vehicle at issue in the instant case had repair or replacement of the heater core some four to six weeks prior to the night in question. This is offered as a possible explanation for why the vehicle is different from the Respondent’s other vehicles with the meter cable running over the dashboard and the meter resting on the steering column. 12. Stroh issued a citation to the Respondent. The asserted violations were improper signage and improper installation of the taxi meter. A penalty of $500.00 per violation was assessed by the Department for a total penalty of $1,000.00. The parties scheduled a settlement conference which was unsuccessful and the Respondent requested a hearing. Conclusions of Law The issues for hearing concern the allegation that on December 23, 2007, the Respondent’s livery vehicle lacked the required exterior and interior signage, and Handbook 44 (G-UR 2.1.) “the meter was not properly installed to the dashboard”. The parties stipulated the vehicle in question is a Livery Vehicle. This being the case the definition in A.R.S. §41-2051 does not require full restatement although relevant portions of the definition will be set forth as necessary[8]. A.R.S. §41-2096 provides in pertinent part that a livery vehicle shall display interior signage that contains the licensee’s business name and address, is permanent, in letters one half inch in height, readily visible, accurately representative of fares and fare computations. A livery vehicle is required to display exterior signage that is readily visible when it is not occupied by a paying passenger. The signage must have the business name and the words “livery car” in letters at least three inches in height and include fare information at least one inch in height. When a passenger has been accepted and a fare determined, the signage may be removed. A.A.C R20-2-101.(12)[9] provides: “’Handbook 44’ means the United States Department of Commerce, Technology, Administration, national Institute of Standards and Technology…(2003 edition) incorporated by reference and on filed with the Department. This incorporation contains no future editions or amendments.”

At the hearing the Department submitted a copy of the NIST Handbook 44 (2005 edition). UR. 2. requires a taximeter to be positioned and illuminated that (it) …can be conveniently read by a passenger in the back seat. G-UR. 2.1. requires installation of a device in accordance with the manufacturer’s instructions. A device installed in a fixed location shall be installed so that neither its operation or performance shall be adversely affected by any characteristic of the foundation, supports, or any other detail of installation. [10]

1. The State in making the allegations has the burden of proof. The standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1). This means the State has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. At the hearing Sawalhi seemed to argue[11] that because the livery vehicle had been requested by the DUI task force, to transport a person cited for DUI, the Respondent technically had a paying passenger and the exterior signage was not required. The argument is not accepted because there is no evidence a passenger had been accepted and fare determined as specified by the statute. The fact remains that the Respondent had no exterior signage while travelling without a passenger, to the DUI checkpoint. The violation is proven by a preponderance of the evidence[12]. 5. The issue with respect to the meter is somewhat problematical. The taxi meter was not shown to be intended to be used. If it is not to be used, to what extent does the requirement apply ?[13] Additionally, the Handbook 44 UR. 2. requirement (position and illumination of the meter) was not cited in the Notice of Violation. Finally, there was no specific evidence presented regarding the application or interpretation of the language “conveniently read by a passenger in the back seat”. Could the meter have been conveniently read by a passenger in the back seat ? This question was not specifically addressed. The presumption is that the meter cannot be readily seen because the driver would most likely obscure the view. In any case, for the reasons stated above, no legal conclusion is made on the issue. 6. The placement of the meter on the steering column, not affixed to anything, was not shown to be in violation of NIST Handbook 44, G-UR. 2.1. which was cited in the Notice of Violation. Although the ALJ presumes a meter should be affixed to something, dashboard or otherwise, such a presumption is not competent evidence. There was no evidence of how the meter was to be installed in accordance with the manufacturer’s instructions. The charged violation of G-UR. 2.1 has not been proven by substantial evidence. 7. Sawalhi voiced concern that he was being accused of fraudulent conduct. The Department did not pursue any allegation of fraud and the evidence does not show fraud. The evidence does show a lack of attention to the details required by the law, on the part of the Respondent. 8. The Department presented a prior violation for which the Respondent paid a $300.00 penalty, as aggravation. A.R.S. §41-2115 provides that the civil penalty shall not exceed $500.00 for each infraction[14] and that a person may request a hearing to review a civil penalty. 9. Under the facts of the case, it appears the proven violation was due to the Respondent’s failure to fully inform himself of the requirements of the law. During the hearing, it became evident that the Respondent relied in large part on the Department and assumed that it would provide him with all the legal information necessary. Although an agency has a responsibility to assist the regulated community, it is for the licensee to know the requirements which come with the license. Recommended Order It is recommended the violation of Handbook 44 (G-UR.2.1.) cited in the Notice of Violation be reversed. It is recommended the civil penalty assessed in this case for violation of A.R.S. §41-2096 be affirmed for a total civil penalty in this case of Five Hundred ($500.00) Dollars.

Done this day, June 4, 2008

______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Law enforcement will contact the Respondent and others operating as a livery, taxi, or possibly a limousine to transport drivers coming through the checkpoint who are charged with DUI. [2] Murphy testified he never drove into the taxi lane or stand. [3] A specialty plate with the letter “Z” designating it as a livery vehicle. [4] At the hearing the Respondent produced a magnetic sign which gives the name and phone number of the Respondent and states the vehicle is a “Livery Car” [5] Stroh is uncertain if there was $ sign in front of the number . The photographic exhibit submitted at the hearing is slightly obscured but it does not appear so. There are obscured additional symbols or numbers on the right side of the meter. The meter also has a number of buttons which turn it on, off, and allow for programming the meter. [6] Believed to be three years old [7] The testimony is not compelling because the Respondent may treat police personnel differently than the general public. [8] In short, it is a vehicle not exceeding 15 passenger capacity, provides passenger services for a flat rate or flat hourly rate between geographic zones or a geographic area, and is available for hire on an exclusive or shared ride basis. The uses permitted under the statute are not germane to this case. [9] September 30, 2006 edition. [10] Although the 2005 edition of NIST Handbook 44 is technically not adopted under the cited rule, the UR. 2 standard was last amended in 1986 and the G-UR. 2.1 standard was added in 1978. This being the case, the relevant standards in the 2005 edition are the same as the 2003 edition. It would be better if the issue of the correct edition did not arise. [11] The argument was not quite so direct and it is partially inferred by the Administrative Law Judge. [12] Evidence regarding interior signage was limited. The Respondent testified there was a zone price list inside the vehicle. The height of letters for the business name and address was referenced as less than ½ inch during questioning of Sawalhi, but not clearly established. [13] Arguably if it is not to be used, the meter should be removed. As cited by Department’s counsel, the presence of the meter creates a rebuttable presumption it is regularly used A.R.S. §41-2114. The presumption was satisfactorily rebutted in this hearing only. [14] The provisions for doubling of a civil penalty under subsection B were not shown to apply to this case.

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