ALJDEC decisions subject to certification as final

10F-12152-DWM · Department of Weights and Measures · 2010-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 22, 2010 APPEARANCES: Fred Sadegh for Transtyle; Assistant Attorney General Mon Baskin for the Department of Weights and Measures ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. In a Notice of Hearing dated February 23, 2010, the Department of Weights and Measures set the above-captioned matter for 1:00 p.m. April 22, 2010, at the Office of Administrative Hearings, an independent state agency. 2. The Notice of Hearing provided the issue for hearing as Transtyle’s appeal of Notice of Violation No. 10F 12152 DWM that was issued to Transtyle by the Department on January 21, 2010. The Notice of Violation alleges Transtyle violated A.R.S. § 41-2096 and § 41-2111. See Exhibit 6 (Notice of Violation). 3. The Department alleges that one of Transtyle’s vehicles was being operated as a livery without being properly licensed with the Department and was not displaying the proper signage. 4. The Department seeks to assess a civil penalty of $1,000.00 against Transtyle pursuant to A.R.S. § 41-2115. See Exhibit 6. 5. The Department presented the testimony of Senior Investigator J.J. Stroh and had 6 exhibits admitted into evidence. Transtyle presented the testimony of its owner, Mr. Fred Sadegh, and its general manager, Mr. Chris Groepler. Transtyle had 3 exhibits admitted into evidence. 6. On January 4, 2010, a Nissan Armada being driven by Mr. Ahmed Mohamed was observed dropping off a passenger at the Fiesta Bowl in Glendale in an area where drop-offs were not allowed. 7. Police officers tried to stop Mr. Mohamed, who drove away. Mr. Mohamed was then stopped by a City of Scottsdale Police Officer about a block from the initial infraction. 8. The police called Mr. Stroh to the scene and he began to question Mr. Mohamed. Initially Mr. Mohamed professed to know little or no English, but when Mr. Stroh began writing up paperwork, Mr. Mohamed began to communicate in English. 9. Mr. Stroh provided credible testimony that Mr. Mohamed told him that he was an employee of Transtyle and that Mr. Mohamed provided Mr. Stroh with “Transtyle documents.” 10. Mr. Stroh also testified that Mr. Mohamed explained that he had a prearranged agreement under which he was to drop the passenger off at the Fiesta Bowl and then return to pick him up after the game. 11. Mr. Mohamed presented an individual, rather than commercial, insurance certificate. Consequently, Mr. Stroh issued a Stop Order that prohibited continued use of the vehicle as a livery or taxi that evening. 12. Mr. Stroh testified that he had the authority to impound the Nissan, but felt it was appropriate to allow Mr. Mohamed to drive the vehicle home. 13. Mr. Stroh observed that the Nissan did not have the signs required of a livery vehicle. 14. Mr. Stroh’s opinion is that the vehicle should have been registered as a livery or a taxi, but that it was not being operated as a limousine as that term is defined in statute. 15. Mr. Stroh provided Mr. Mohamed with a Bill of Rights and other documents, but Mr. Mohamed would not sign these telling Mr. Stroh that he did not understand English. 16. Mr. Sadegh acknowledged that the Nissan was not licensed by the Department on January 4, 2010. 17. Mr. Sadegh asserts that the Nissan was properly considered a limousine that does not require any signage. 18. Transtyle introduced Exhibit A showing that as of October 5, 2009, the Nissan was registered to Mr. Mohamed. 19. Transtyle introduced Exhibit B, an Accord Insurance Certificate, showing Mr. Mohamed as the insured and Transtyle as the certificate holder and an additional insured for the Nissan. 20. According to Mr. Sadegh, Mr. Mohamed is an independent contractor who is responsible for any infractions, not Transtyle. 21. In a letter dated January 5, 2010, Transtyle informed the Department that Mr. Mohamed was a “chauffer driving with Transtyle, Inc.” and that Mr. Mohamed was interested in getting the proper licensing decal for the Nissan. 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.R.S. § 41-2051 provides in part that: "Limousine" means a motor vehicle providing prearranged ground transportation service for an individual passenger, or a group of passengers, that is arranged in advance or is operated on a regular route or between specified points and includes ground transportation under a contract or agreement for services that includes a fixed rate or time and is provided in a motor vehicle with a seating capacity not exceeding fifteen passengers, including the driver. **** 17. "Livery vehicle" means a motor vehicle that: (a) Has a seating capacity not exceeding fifteen passengers, including the driver. (b) Provides passenger services for a fare determined by a flat rate or flat hourly rate between geographic zones or within a geographic area. (c) Is available for hire on an exclusive or shared ride basis. (d) May do any of the following: (i) Operate on a regular route or between specified places. (ii) Offer prearranged ground transportation service as defined in section 28-141. (iii) Offer on demand ground transportation service pursuant to a contract with a public airport, licensed business entity or organization. (Underscore added.) 5. Mr. Stroh’s testimony is that Mr. Mohamed had a prearranged agreement under which he was to drop the passenger off at the Fiesta Bowl and then return to pick him up after the game. This fits the statutory definition of “limousine.” Mr. Mohamed’s actions do not meet the definition “livery vehicle” because that definition does not include a “prearranged” component. There is also no evidence showing that Mr. Mohamed was engaged in activities that are allowable for a livery, but not a limousine (e.g., operating on a regular route). 6. Because the Nissan meets the definition of a limousine, the Department has not met the burden to show that the Nissan was in violation of A.R.S. § 41-2096 by not displaying signs designating it as a livery vehicle. 7. The preponderance of the evidence shows that the Nissan was not properly registered with the Department on January 4, 2010. At that time, Mr. Mohamed told Mr. Stroh that he worked for Transtyle and he provided documents on which Transtyle is named. The Accord Certificate shows that Transtyle is the certificate holder and, Exhibit 5, which is on Transtyle letterhead, shows that Mr. Mohamed was a chauffer with Transtyle. Consequently, the Department has met its initial burden to show that Transtyle was in violation of A.R.S. § 41- 2111 on January 4, 2010. 8. Mr. Sadegh asserts that Mr. Mohamed was an independent contractor, which is an affirmative defense. But, Transtyle offers no substantial, reliable evidence in support of Mr. Sadegh’s assertion.[1] Consequently, Transtyle has not met its burden to prove that affirmative defense. 9. The Administrative Law Judge concludes that an assessment of a $500.00 civil penalty for the one violation proven against Transtyle is reasonable and supported by the evidence of record. See A.R.S. § 41-2115(A). ORDER IT IS ORDERED that Transtyle, Inc.’s appeal is sustained in part and denied in part; IT IS FURTHER ORDERED that within 10 days of the effective date of the final Order issued in this matter, Transtyle Inc. shall pay a civil penalty of $500.00 to the Department of Weights and Measures. 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 10, 2010.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Interim Director Arizona Department of Weights and Measures ----------------------- [1] Transtyle did offer Exhibit D, which purports to be documentation showing the independent contractor relationship. But because the most of documents in that exhibit contained numerous blank spaces and were not fully executed or dated, the ALJ sustained the Department’s objection to the exhibit and did not accept it into evidence.

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