ALJDEC decisions subject to certification as final

09F-10426-DWM · Department of Weights and Measures · 2008-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2008 APPEARANCES: Seth Hargraves, Attorney for the Department of Weights and Measures; Said Abdikedir, Appellant’s representative; J. J. Stroh, Department witness; Ahmed Muse, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ In a hearing regarding the Appellant’s appeal from two Notices of Violation, the Department of Weights and Measures established that one of the notices should be affirmed and one should be dismissed in accordance with the following Findings of Fact, Conclusions of Law and Recommended Decision. FINDINGS OF FACT 1. On August 23, 2008, J.J. Stroh, an inspector for the Department of Weights and Measures ("DWM"), was called by the Tempe Police to come to the scene where a taxi ("Taxi #1")for Blue Sky Cab had been stopped for a traffic violation. Mr. Stroh conducted an inspection at the site and found that the taxi's meter had been cut. 2. Mr. Stroh issued a citation for the violation, which included a civil penalty of $500.00. 3. While Mr. Stroh was inspecting the taxi, another Blue Sky Cab taxi ("Taxi #2") stopped to see what was happening. Mr. Stroh asked the driver to pull over, which he did. Mr. Stroh inspected the other taxi and found that part of the phone number on the rear quarter panel had been washed off. He agreed that the phone number was on other parts of the taxi, but he found that this was part of the information required to be on each taxi in the proper areas. He allowed Taxi #2 to return to work with a warning, but he cited the violation. 4. DWM issued citations on both taxis for their violations, with the imposition of civil penalties of $500.00 each. On September 16, 2008, DWM issued two Notices of Violation formally apprising Blue Sky Cab of the citations, the proposed civil penalties, and its right to appeal. Blue Sky Cab appealed the Notices of Violation. At hearing, one of the former owners of Blue Sky Cab, Said Abdikedir, testified that the company was owned by several people but, when it went out of business, he was left to take care of the problems alone. He argued that DWM has been prejudiced toward the company and hostile toward it. 5. Mr. Abdikedir testified that the driver of Taxi #1 told him that Mr. Stroh cut the seal. Regardless, he said that even if the meter seal is cut, the driver cannot adjust the price unless he has a special key. Regarding Taxi #2, he said that the phone number is written all over the car anyway. He said that the driver of Taxi #2 said he did not know that the number was not on that part of the car, but he had just gone through a car wash and he thought it must have washed off. 6. The weight of the evidence established that Taxi #1's meter had been cut prior to inspection. It was not believable that Mr. Stroh cut the meter at the time of inspection. The driver making that statement was not present to testify, and the circumstances surrounding the incident do not indicate that such an activity would be likely. 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. DWM has the authority to impose civil penalties of up to $500.00 for each violation of the statutes governing the regulation of DWM licensees. A.R.S. § 41-2115(A). 3. Pursuant to A.R.S. § 41-2095, every taxi must have a meter that is visible to the passenger. According to the testimony of Mr. Stroh, a meter that has been cut is not a functioning meter, and the rates can be manually adjusted by the driver. Although Mr. Abdikedir stated that the driver would need a special key to do so, this was not established by any supporting evidence, and it was not established that the driver did not have the key anyway. Although Mr. Abdikedir reported that the driver said Mr. Stroh cut the meter wire, it is doubtful that he did so with the Tempe Police nearby, and there is insufficient evidence to establish that the driver’s claim is true. 4. Pursuant to A.R.S. § 41-2096(C), exterior signage of a taxi must be readily visible, it must include the business name and the words "livery car" in at least three inch high lettering, and fare information in at least one inch high lettering. 5. The Administrative Law Judge was unable to find any statutory authority stating that the telephone number of the taxi company must be displayed on the exterior of the vehicle. 6. In this case, DWM has established that Taxi #1 committed one violation, which carries a maximum civil penalty of $500.00. The fact that the meter had been cut justifies the imposition of the maximum penalty because it indicates a potential situation that would be harmful to potential customers because they could easily have been cheated. It was not established that Taxi #2 committed a violation because the Administrative Law Judge was unable to find statutory support for the alleged violation. Therefore, it is recommended that the Director of DWM affirm the Notice of Violation against Taxi #1 in the amount of $500.00 and dismiss the Notice of Violation against Taxi #2.

RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Director of DWM affirm the Notice of Violation against Taxi #1 (Civil Penalty # 09F10427DWM, BMF # 30608, Invoice # 136585) retaining the proposed civil penalty of $500.00. It is further recommended that the Director dismiss the Notice of Violation with regard to Taxi #2 (Civil Penalty # 09F10426DWM, BMF # 30608, Invoice # 136584).

Done this day, December 16, 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 ___________________________ -----------------------

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