ALJDEC decisions subject to certification as final

10F-12359-DWM · Department of Weights and Measures · 2011-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 7, 2011 APPEARANCES: No one appeared for the Licensee; Assistant Attorney General Marc. H. Harris appeared for the Department of Weights and Measures ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On May 18, 2010, the Department of Weights and Measures (“Department”) issued a Notice of Hearing setting the above- captioned matter for hearing on July 21, 2010, by the Office of Administrative Hearings, an independent state agency. 2. The Notice of Hearing provided that the issue for hearing was Scottsdale Auto Salon’s (the “Licensee”) appeal of Notice of Violation 10F 12359 DWM (the “NOV”). 3. The NOV was issued on April 9, 2010. In the NOV, the Department alleges that the Licensee violated A.R.S. § 41- 2124 (Area A, fuel reformation rules.) 4. At the Licensee’s request, the matter was continued to allow the parties time to pursue settlement. 5. In an Order dated January 18, 2011, the matter was rescheduled for hearing at 2:00 p.m. March 7, 2011. No one appeared for the Licensee at the scheduled time and, after a grace period of about 15 minutes, the matter was convened in the Licensee’s absence. 6. The Department presented the testimony of Duane Yantorno, its Director Transportation Fuels and Air Quality Programs. 7. The Licensee has a gas station located at 9393 East Bell Road in Scottsdale Arizona (the “station”), which is in Maricopa County. 8. All gasoline sold in Maricopa County must comply with the Cleaner Burning Gasoline (“CBG”) program. 9. On April 7, 2010, during an inspection at the station, the Department observed that the pumps for dispensing 100 octane racing fuel were not properly labeled. 10. The pumps dispensing the 100 octane racing fuel were not locked and were open for sales to the public. The 100 octane racing fuel was subject to the CBG requirements. 11. The Department requested the Licensee to provide it with documentation as to the origin of the 100 octane racing fuel. 12. Western States Petroleum sold the 100 octane racing fuel to the Licensee. 13. Western States Petroleum provided the Department with invoices showing that it had delivered 100 octane racing fuel to the station on various dates from September 30, 2008 through July 29, 2009. See Exhibit 3. 14. The invoices do not show that the 100 octane racing fuel delivered to the station was CBG compliant. Mr. Yantorno testified that the invoices are considered part of a chain-of- custody and are required by rule to have a certification showing CBG compliance. 15. The 100 octane racing fuel was manufactured by VP Racing, which is not registered with the Department. VP Racing did not certify that the 100 octane racing fuel was CBG compliant. 16. The Licensee did not provide the Department with any information to show that the 100 octane racing fuel was CBG compliant. 17. Based on the invoices, the Department determined that for 302 days the Licensee was offering for sale fuel that was not certified as CBG-compliant. 18. In the NOV, the Department assessed a civil penalty of $150,800, which was calculated as $300 for the first day of offering for sale fuel that was not certified as CBG- compliant and $500 for the remaining 301 days. 19. At the hearing, the Department requested that the civil penalty be reduced to $97,000 based on the requirements of A.R.S. § 41-2115, which limits civil penalties to $10,000 per month. 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 affirmative defense bears the burden of proving the claim or affirmative defense. The standard of proof on all issues in this matter is that of 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 on 302 days the Licensee offered for sale 100 octane racing fuel that was not certified as CBG-compliant in violation of A.R.S. § 41-2124. 5. Based on the evidence and argument presented at hearing, the Licensee is subject to a civil penalty of $97,000. See A.R.S. § 41-2115. ORDER IT IS ORDERED that Scottsdale Auto Salon’s appeal of Notice of Violation 10F 12359 DWM is denied; IT IS FURTHER ORDERED that within 30 days of the effective date of the final Order issued in this matter, Scottsdale Auto Salon shall pay a civil penalty of $97,000.00 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, March 25, 2011.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

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

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