ALJDEC decisions subject to certification as final

09F-10024-DWM · Department of Weights and Measures · 2008-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2008

APPEARANCES: Sergio Lopez, Complainant; Seth Hargraves, Assistant Attorney General representing the Department of Weights and Measures; J. J. Stroh, Department witness; Dolores Lopez, Complainant's wife

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ On appeal from the imposition of a civil penalty by the Department of Weights and Measures, the evidence has established that Complainant was using a "4Hire" sign in pursuit of business as a taxi driver. Even though Complainant stated that he was a driver for hire and only drove other people's cars, he did not have anyone with him who could return him to his car under that business model. Therefore, it is more likely that he was available to drive people in his car. And, it was not disputed that Complainant was not licensed or insured as a taxi service. Therefore, it is recommended that this appeal be denied. The imposition of a civil penalty of $500.00 should be sustained. FINDINGS OF FACT 1. Complainant owns the Designated Driver Club. The concept of the business is that the Complainant will drive people from bars and pubs to their homes in their own cars so that they do not have to retrieve their cars after a night out drinking, as they would if they took a taxi. Complainant charges a flat rate for the service. He does not charge by the mile. His customers never enter the Complainant's car. 2. On June 8, 2008, the Scottsdale Police contacted J.J. Stroh, Department of Weights and Measures Investigator. They had stopped Complainant's car because it had a "4Hire" sign in the window and it did not have license plates for a taxi. Mr. Stroh went to the location and found that the Complainant was alone in the car. Mr. Stroh impounded the sign. Based on his opinion that the Complainant was actually operating a taxi service, Mr. Stroh found that Complainant was in violation of licensing, signage and insurance laws applicable to taxis and other for- hire vehicles. He cited Complainant for 8 violations. The Department imposed a financial penalty of $500.00. 3. Complainant appealed the imposition of the penalty and the citation. He appeared at hearing and argued that the sign and the car are not required to be licensed and commercially insured under the laws applicable to taxis and livery vehicles because he was not using his car as a taxi or livery vehicle. He stated that he is a driver for hire and he only drives other people's cars for them. He said that he only uses the light when he is parked in order to hand out flyers. He offered into evidence a flyer, his business card, and a Trade Name Certificate for Designated Driver 247 Club issued on December 20, 2007. Complainant argued that his rights were violated when Mr. Stroh took information from the police and when he searched his car. He requested that the citation be dismissed. 4. Given the fact that the Complainant was in the area of potential customers with a "4Hire" light and without someone in his car to drive him back to his car if he did get a customer, it appears most likely that he was engaging in hiring out his car that night, even though he is prepared to do business as a driver for hire. 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 and 41-1092.12. 2. Pursuant to A.R.S. § 41-2111(A), "When any commercial device specified in this chapter is in commercial use and a valid license for the device has not been procured by the owner, the owner's agent or the operator of the device, the department, after giving notice of the licensing requirements to the owner, the owner's agent or the operator, shall prohibit the further commercial use of the unlicensed device until the proper license has been issued. The department may employ and attach to the device such forms, notices of security and seals as it considers necessary to prevent the continued unauthorized use of the device". 3. Pursuant to A.R.S. § 41-2115(A), "A person who violates this chapter, any rules of the department or any license requirement is subject to a civil penalty imposed by the director..." 4. In this case, the Department has established that the Complainant violated licensing requirements by using a commercial devise, the "4Hire" sign, in a commercial manner without licensing the car, which was established by the weight of the evidence to be in service as a taxi for hire. Therefore, the imposition of a civil penalty of $500.00 was appropriate, and this appeal should be denied. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this appeal be denied. The imposition of a $500.00 civil penalty should be sustained.

Done this day, September 26, 2008 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

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

Arizona Department of Weights and Measures Seth Mones 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