ALJDEC decisions subject to certification as final

10F-12108-DWM · Department of Weights and Measures · 2010-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2010 APPEARANCES: Adane Wedajo for AB Transportation; Assistant Attorney General Mona Baskin for the Department of Weights and Measures ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On February 23, 2010, the Arizona Department of Weights and Measures (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing at 10:00 a.m. April 19, 2010, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing provided that the issue for hearing was AB Transportation’s (“AB”) appeal of Notice of Violation No. 10F 12108 DWM issued to AB by the Department. The Notice of Violation alleges AB violated A.R.S. § 41-2091 and § 41-2111. See Exhibit 7 (Notice of Violation, dated January 12, 2010). 3. The Department alleges that one of AB’s vehicles was being operated as a taxi without being properly licensed by the Department and that the vehicle did not have the proper insurance according to the Motor Vehicle Division. See Exhibit 7. 4. The Department assessed a civil penalty against AB pursuant to A.R.S. § 41-2115 in the amount of $1,000.00. See Exhibit 7. 5. The Department presented the testimony of Senior Investigator J.J. Stroh and had 7 exhibits admitted into evidence. AB presented the testimony of Mr. Adane Wedajo and had 2 exhibits admitted into evidence. 6. On December 19, 2010, Mr. Stroh observed Mr. Wedajo driving a taxi without the required licensing decal. 7. Mr. Stroh stopped the vehicle and asked Mr. Wedajo about the missing decal and Mr. Wedajo told Mr. Stroh he had been meaning to get the required decal. 8. The vehicle, a 2003 Ford, was marked with signs showing it was a taxi and had a meter installed. 9. Mr. Stroh requested that Mr. Wedajo provide proof of commercial insurance. Mr. Wedajo provided a copy of an Accord Certificate, but Mr. Stroh did not consider that to be proof that there was actually insurance coverage. See Exhibit 5. 10. According the Mr. Stroh, because the policy number on Exhibit starts with the letters “APP” he considered that to be an application only and not proof of insurance. 11. On December 20, 2009, Mr. Stroh called Ms. Bonnie Reed at the insurance company. According to Mr. Stroh, Ms. Reed told him that there was an application, but no policy had issued. 12. Mr. Stroh testified that Mr. Wedajo’s Certificate (Exhibit 5) shows only that he had submitted a binder for a policy. 13. Mr. Wedajo testified that he had obtained the commercial insurance and, that in addition to Exhibit 5, he had provided to the Department a second certificate showing that he had continuous coverage from December 18, 2009 to December 18, 2010. See Exhibit B. 14. Exhibits 5 and B appear to be identical except for the policy number. Exhibits 5 and B each show that on December 19. 2009, Mr. Wedajo had commercial taxi coverage on the 2003 Ford. 15. Mr. Stroh learned that in April 2009, the 2003 Ford had been registered with the Department as a livery and that as of December 19, 2010 it was not registered with the Department as a taxi. 16. Mr. Wedajo presented into evidence a receipt showing that he had paid a $24.00 licensing-fee to the Department that he believed effected the change from livery to taxi. See Exhibit A. 17. Mr. Stroh testified that to make such a change, Mr. Wedajo was required to have the vehicle inspected and to have a license decal issued for display in the window, which he did not do. 18. On December 19, 2009, Mr. Stroh observed that the meter did not have the proper “placed in service” tag. Although Mr. Stroh’s opinion is that he had the authority to impound the meter, he did not because he considered the violation to be the fault of the meter installer, rather than that of Mr. Wedajo. 19. Mr. Stroh had also stopped the 2003 Ford in November 2009, and, at that time he informed the driver as to what was required to get the 2003 Ford properly registered as a taxi. 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. The preponderance of the evidence shows that the 2003 Ford was not properly licensed as a taxi by the Department because it had not been inspected and was not displaying the required decal. Consequently, the Department has met its burden to show that AB violated A.R.S. § 41-2091. 5. The Department has not met its burden to show that the 2003 Ford was not properly insured. According to Mr. Stroh, Exhibit 5 was not proof of insurance because it is a binder, not a policy. However, under A.R.S. Title 28, Chapter 9, Articles 2 and 4, a binder issued pending the issuance of a motor vehicle liability policy fulfills the requirements for the policy. See A.R.S. § 28-4009(F). Moreover, in this instance, Exhibits 5 and B show that AB had commercial coverage in effect beginning on December 18, 2009. 6. The Department did not specify how it calculated the requested penalty of $1,000.00. The Administrative Law Judge concludes that the assessment of a $500.00 civil penalty for the one proven violation against AB is reasonable and supported by the evidence of record. See A.R.S. § 41-2115(A). ORDER IT IS ORDERED that AB Transportation’s appeal is affirmed in part and denied in part; IT IS FURTHER ORDERED that AB Transportation is assessed a $500.00 civil penalty that must be paid to the Department of Weights and Measures within 15 days of the effective date of the final Order issued in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be the date of that certification.

Done this day, May 7, 2010.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Interim Director Arizona Department of Weights and Measures -----------------------

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