ALJDEC decisions subject to certification as final

10F-11823-DWM · Department of Weights and Measures · 2010-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 19, 2010 at 8:00 a.m. APPEARANCES: The Licensee appeared its authorized representative, Paul Carter. The Department of Weights and Measures appeared through Assistant Attorney General, Mona Baskin. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. .Pursuant to the filing of a consumer Complaint, an assigned Agency Inspector, Roger Knoll, conducted an on-site compliance inspection of the License’s business premises. 2. .Inspector Knoll found that the Licensee’s pump number 16 and pump number 17 failed to display the full price for the red dye diesel that was being dispensed through the pumps. 3. Inspector Knoll then issued a Fueling Device/Vapor Compliance Inspection Report and an Administrative Bill of Rights to the Licensee on August 11, 2009. The report provides as follows: Price electronically displayed on pump is $2.14. Actual price being charged at this time is $2.36 per Paul Carter. No road tax charged for the product but they do charge a sales tax and this is being added on later. Site must display full price including sales tax for customers. This price must be displayed within 48 hours. Any questions call Roger 602-2.. .l… A.R.S. §41-2083B. AAC R20-2-1048, 705A3, NIST Hand Book #44 5.1.6.4.1 4. On August 11, 2009, Inspector Knoll also issued an Administrative Order Stop Sale, Stop Use, Hold or Removal. The Order provides as follows: #16 and #17 must display price per gallon with any sales taxes included. This must be corrected within 48 hours from 08/11/09 12:00 p.m. 5. Credible testimony and evidence established that the Licensee did not change the price on fuel pumps #16 and #17l to add the sales tax and display the full price of the red dye diesel to it as set forth in the Compliance Inspection Report and required by the Administrative Order. 6. On October 8, 2009, the Department of Weights and measures issued a Notice of Violation and Civil Penalty. The Notice provides, in pertinent part, as follows: The inspection listed below revealed a violation. A copy of the inspection report and Administrative Bill of Rights was left at the location upon completion of the inspection. The Conduct described below constitutes grounds for disciplinary action pursuant to A.R.S. §41-2115… It is hereby ordered that the location be assessed a civil penalty…Inspection number 198575. Inspected on 08/11/09. Inspection type: Fueling Device. Fine Amount $600.00. Due date 11/13/2009... Violation 41-2083(B) Standards for motor fuel, exceptions and Arizona Administrative Code R20-2-104(K), Administrative Action Regarding Commercial Devices and Code R20-2-705(A.3), Price, Octane and lead Substitute Notification on Dispensers and HANDBOOK 44. (S.1.6.4.1.). During an inspection initiated by a consumer complaint, the prices displayed on pumps 16 and 17 were inaccurate. 7. The Licensee then filed the appeal at issue. 8. At the hearing the Licensee’s representative, Paul Carter, did not dispute the testimony of Inspector Knoll. Mr. Carter contended that there should be no civil penalty and that he should not be required to show the sales tax for the red dye diesel dispensed from pump numbers 16 and 17 on the basis that at some point someone from the Department of Weights and Measures had assured him that the display of a charged sales tax on the pumps at issue was not required and that the display of the tax as part of the purchase price would needlessly complicate the Licensee’s accounting practices. 9. Credible testimony and evidence established that the Compliance Inspection and Report and the Administrative Stop Order issued by Inspector Knoll should have corrected any inaccurate information that may have been previously given to the Licensee. 10. Credible testimony and evidence established that the Licensee violated the charged provisions of A.R.S. §41-2083(B), A.A.C.R-20-2-705 A.3 and NIST HANDBOOK 44 (8.1.6.4.1). . CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties herein pursuant to A.R.S. §41-1092-1092.12. The Department of Weights and Measures has jurisdiction pursuant to A.R.S. §41-2065. 2. A.A.C. R20-2-705.A.3 provides, in pertinent part, as follows: A service station owner or operator shall ensure that information regarding pricing, motor fuel grade, octane rating, lead- substitute addition, displayed on a service station fuel dispenser: Lists the full price of the motor fuel including fractions of a cent and all federal and state taxes 3. The burden of proof in this matter falls upon the Department of Weights and Measures. See A.R.S. §41-1092.07(G).(3). Further the standard of proof is that of the “preponderance of the evidence.” Smith v. Arizona Department of Transportation, 146 Ariz. 430, 700 P.2d. 756 (App. 1986). Proof by a preponderance of the evidence means that the evidence is sufficient to persuade the trier of fact that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms. 177 B.R. 648, Cir. BAP (Ariz.) 1994). 4. The credible evidence of record established that the Department has met its burden of proof in this matter. 5. Under the circumstances of this case it is concluded that the civil penalty of $300.00 for each violation assessed against the Licensee for each of the two proven violations for a total civil penalty of $600.00 is reasonable and lawful, is not excessive, and is not an abuse of discretion on the part of the Department.

RECOMMENDed order In view of the foregoing, it is recommended that the appeal at issue be denied and that the assessment of a civil penalty in the total amount of $600.00 be affirmed in its entirety. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, January 20, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Gene Palma, Director Arizona Department of Weights and Measures -----------------------

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