ALJDEC decisions subject to certification as final

10F-11935-DWM · Department of Weights and Measures · 2010-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2010 APPEARANCES: King Uyere for Royal Trans LLC; Assistant Attorney General Mona Baskin for the Department of Weights and Measures ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ Royal Style Trans LLC, a licensee of the Arizona Department of Weights and Measures (the “Department”), appealed the Department’s Notice of Violation No. 10F 11935 DWM. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Order. FINDINGS OF FACT 1. In a Notice of Hearing dated November 24, 2009, the Department of Weights and Measures set the above-captioned matter for hearing by the Office of Administrative Hearings, an independent state agency. The Notice of Hearing set the matter for 1:00 p.m. January 22, 2010. 2. The Notice of Hearing provided that the issue for hearing was Royal Style Trans LLC’s (“Royal Style”) appeal of Notice of Violation No. 10F 11935 DWM issued to Royal Style by the Department on November 16, 2009. The Notice of Violation alleges Royal Style violated A.R.S. § 41-2091. See Exhibit 7 (Notice of Violation).

3. The Department alleges that one of Royal Style’s livery vehicles was being operated without valid commercial insurance and that the driver of that livery vehicle did not have a driver license issued by the State of Arizona. 4. The Department assessed a civil penalty against Royal Style pursuant to A.R.S. § 41-2115 in the amount of $500.00 for each violation. See Exhibit 7. 5. The Department presented the testimony of Inspector J.J. Stroh and had 7 exhibits admitted into evidence. Royal Style presented the testimony of its Managing Member Mr. King Uyere. Royal Style’s request for a hearing, dated November 19, 2009, was also admitted into evidence. 6. Mr. Stroh testified that: a. On October 19, 2009, at about 3 a.m., Scottsdale Police Officer Hawkinson stopped a 1989 Buick for a traffic violation. b. At that time the driver, Eric Hodges, presented a driver license issued by the State of Maryland and could not provide proof of insurance. c. Mr. Hodges gave an address in Phoenix as his residential address. See Exhibit 1 (Traffic Ticket and Complaint). d. Officer Hawkinson contacted Inspector Stroh. e. Office Hawkinson informed Mr. Stroh that Mr. Hodges reported that he had just come from work and he had presented a Royal Style business card. See Exhibit 1 (copy of business card). f. Mr. Stroh conducted an investigation and learned that the vehicle had been placed into service as a livery by Royal Style on August 18, 2009. See Exhibit 2. g. Mr. Stroh also learned that Royal Style had cancelled its commercial insurance on the vehicle as of September 8, 2009. See Exhibit 6. h. Vehicles for hire are required to be covered by a commercial insurance policy. i. Livery service operators are required to comply with licensing requirements set by the Arizona Department of Transportation, which includes a requirement that people working in the state have an Arizona driver license. 7. Mr. Uyere testified that: a. Mr. Hodges was not working for Royal Style and he had borrowed the vehicle because he needed a way to get home. b. Royal Style had taken the vehicle out of service and that he had called the Department to inform it that that was the case. 8. Mr. Uyere acknowledged that Royal Style did not have commercial insurance on the vehicle on August 19, 2009, and that Mr. Hodges did not have a valid Arizona driver license on that date. 9. Mr. Stroh testified that the Department has no record that the vehicle was taken out of service and the Department requires the vehicle licensing decal to be surrendered when a vehicle is removed from service. CONCLUSIONS OF LAW 1. The Department of Weights and Measures bears the burden of persuasion in this matter. See A.R.S. § 41-1092.07(G)(3). 2. A party asserting a claim or an affirmative defense bears the burden of proving the claim or defense. The standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. A preponderance of the evidence is “[e]vidence 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). 4. A licensee of the Department who operates livery vehicles is required to comply with motor vehicle licensing as prescribed by the Department of Transportation and to carry the appropriate insurance. See A.R.S. § 41-2091. As a resident of Arizona, Mr. Hodges was required to have an Arizona driver license while driving the vehicle. See A.R.S. Title 28, Chapter 8, Article 4. 5. There is no dispute that Royal Style did not have commercial insurance and that Mr. Hodges did not have an Arizona driver license on October 19, 2009. Consequently, whether or not the alleged violations occurred is dependent on whether or not Mr. Hodges was an employee working for Royal Style when he was stopped by the Scottsdale Police. 6. In support of its position that Mr. Hodges was working for Royal Style, the Department presented the testimony of Mr. Stroh and the copy of the Royal Style business card Mr. Hodges presented to the Scottsdale Police. Inspector Stroh’s testimony that Officer Hawkinson said that Mr. Hodges said he was coming from work is double hearsay, which is potentially unreliable. But because the Department presented the copy of the Royal Style business card, the Administrative Law Judge concludes that there is sufficient evidence to show that Mr. Hodges was working for Royal Style on October 19, 2009. 7. Mr. Uyere’s testimony that the vehicle had been taken out of service cannot be accorded substantial weight because he presented no evidence to corroborate his testimony and Royal Style had not returned the licensing decal to the Department. Moreover, Royal Styles’ request for hearing is not fully consistent with Mr. Uyere’s testimony. 8. The preponderance of evidence demonstrated that Royal Style was operating its livery vehicle without commercial insurance and that the livery was being driven by Mr. Hodges who did not have an Arizona driver license. 9. The Administrative Law Judge concludes that the Department’s assessment of a $500.00 civil penalty for each violation against Royal Style is reasonable and supported by the evidence of record. See A.R.S. § 41-2115(A). ORDER IT IS ORDERED that Royal Style Trans LLC’s appeal is denied, and the Department’s assessment of a $1000.00 civil penalty against Royal Style Trans LLC is affirmed; IT IS FURTHER ORDERED that within 15 days of the effective date of the final Order issued in this matter, Royal Style Trans LLC shall pay a civil penalty of $1,000.00 to the Department of Weights and Measures.

Done this day, February 11, 2010.

/s/ Thomas Shedden Thomas Shedden 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